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Bowman v. United States Postal Service Judge Stein Bowman v. United States Postal Service – Adolph Bowman, a retired United States Postal Service employee, has brought this action pro se to recover for injuries allegedly arising from an assault by a co-worker. Bowman also asserts a claim for medical malpractice against Dr. Lilly Lee, an M.D. who was employed at a Veterans Affairs hospital. Defendants have now moved to dismiss this action pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. That motion is granted on the grounds that (1) the United States is the only proper defendant; (2) plaintiff’s assault and related negli gence claims are barred by an exception to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §2671 et seq.; and (3) plaintiff’s medical malpractice claim is barred by the statute of limitations. I. Background The following facts are taken from the Amended Complaint: Mr. Bowman alleges that he was “attacked” by a co-worker while they both were working at the Morgan Station branch of the United States Postal Service in Manhattan. Amended Compl. at 1. The worker who attacked him is identified by name in the complaint but is not named as a defendant. Bowman reported the incident the same day, and repeated his allegations to a variety of federal agencies on a number of subsequent occasions. Three weeks after the assault, Lilly Lee, M.D., treated Bowman at the Bronx Veterans Affairs Medical Center. At the time, Bowman complained of “a lot of pain in my right shoulder and neck.” Id. Dr. Lee prescribed two days of rest. At a later date, Bowman sought treatment from another doctor for his injury and learned that he had suffered a torn rotator cuff in his shoulder as a result of the attack. Bowman Opp. at 2. Bowman commenced this action on July 31, 2002 and later amended his complaint. Defendants now move to dismiss the Amended Complaint for lack of subject matter jurisdiction. II. Discussion A. Legal Standards An action must be dismissed for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) when the trial court lacks the power to adjudicate the case. A plaintiff bears the burden of proving the existence of subject matter jurisdiction by a preponderance of the evidence. See Markarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In considering a motion to dismiss for lack of subject matter jurisdiction, a court must “accept as true all material allegations in the [c]omplaint and refrain from drawing inferences in favor of the party contesting jurisdiction.” Serrano v. 900 5th Ave. Corp., 4 F. Supp. 2d 315, 316 (S.D.N.Y. 1998) (citations omitted). The Court may consider evidence outside the pleadings, such as affidavits and other documents. See Makarova, 201 F.3d at 113. Where a plaintiff appears pro se, the Court must “read the pleadings . . . liberally and interpret them to raise the strongest arguments that they suggest.” McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (internal quotation marks omitted). B. The United States is the Only Proper Defendant Bowman’s claims against defendants – assault by a co-worker and medical malpractice by a doctor employed at a Veterans Affairs hospital – are tort claims and are therefore governed by the FTCA. Although Bowman has named the United States Postal Service and United States Postal Inspectors as defendants, the FTCA expressly provides “that only the United States may be held liable for torts committed by a federal agency, and not the agency itself.” C.P. Chemical Co., Inc. v. United States, 810 F.2d 34, 37 n.1 (2d Cir. 1987) (citing 28 U.S.C. §2679(a)); Mignogna v. Sair Aviation, Inc., 937 F.2d 37, 40 (2d Cir. 1991) (same). Construing “United States Postal Inspectors” to be the entity known as United States Postal Inspection Service, both the U.S. Postal Service and the U.S. Postal Inspection Service have been held to be “federal agencies” within the definition of that term in the FTCA. See 28 U.S.C. §2671; Myers & Myers, Inc. v. United States Postal Service, 527 F.2d 1252, 1256 (2d Cir. 1975). In lieu of requiring a pro se litigant to further amend the Amended Complaint to name the United States as a defendant, this Court will on its own motion substitute the United States as the defendant in the place and stead of the United States Postal Service and United States Postal Inspection Service. The FTCA also provides that if the Attorney General of the United States certifies that an employee of a federal agency who is named as a defendant was “acting within the scope of [her] office or employment at the time of the incident out of which the claim arose,” then the action “shall be deemed an action . . . against the United States . . . and the United States shall be substituted as the party defendant.” 28 U.S.C. §2679(d)(1); McHugh v. University of Vermont, 966 F.2d 67, 70 (2d Cir. 1992). The United States Attorney for the Southern District of New York, on behalf of the Attorney General, has certified that Dr. Lee “was acting within the scope of her employment with the United States Veterans Administration at all times relevant to the incidents alleged in plaintiff’s complaint.” Torrance Decl., Ex. I; see 28 C.F.R. §15.3 (providing that the U.S. Attorneys are authorized to issue certifications pursuant to 28 U.S.C. §2679(d)). Thus, the United States is also substituted as a defendant in the place and stead of Dr. Lee. Therefore, as set forth above, the United States is the sole proper defendant to this litigation. C. The Complaint Should Be Dismissed for Lack of Subject Matter Jurisdiction 1. Bowman’s Assault Claim is Barred By the Doctrine of Sovereign Immunity Pursuant to the doctrine of sovereign immunity, the United States can only be sued if Congress specifically waives its immunity from suit. See Mortise v. United States, 102 F.3d 693, 696 (2d Cir. 1996); 28 U.S.C. §1346(b). Pursuant to the FTCA, “the government has waived its sovereign immunity for a number of torts [but] expressly refuses to waive sovereign immunity for any claims arising out of assault or battery [and certain other intentional torts].” Id. (citing 28 U.S.C. §2680(h)). Thus, Bowman’s claims of the intentional torts of assault and battery are barred by the FTCA. 2. Bowman’s Negligence Claims are Also Barred as Arising Out of an Intentional Tort “Under the FTCA, the Government has waived immunity from suit for claims of property damage or personal injury caused by the ‘negligent or wrongful act or omission’ of its employees ‘under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.’” Guccione v. United States, 847 F.2d 1031, 1033 (2d Cir. 1989), reh’g denied, 878 F.2d 32 (2d Cir. 1989) (quoting 28 U.S.C. §1346(b) and 28 U.S.C. §2680(h)). Here, Bowman claims that his supervisor at the U.S. Post Office, the Postal Police and Postal Inspectors “did not respond to my call for help” after he was assaulted. Bowman Opp. at 1. As this Court is unaware of any affirmative duty on the part of federal law enforcement officers or private parties to investigate Bowman’s allegations, <a href=”#1FootNoteHyperLink”[1] † those allegations will be construed broadly as a claim of negligent supervision of a tortfeasor employee. Negligent supervision claims are barred by the intentional tort exception described above unless the supervision is “entirely independent” of the relationship between the alleged tortfeasor employee and the United States. Guccione, 878 F.2d at 33. Here, absent the employment relationship between the government and the tortfeasor employee, there was no duty to supervise the employee’s conduct. In other words, the government did not provide any service to Bowman such that he would be protected from harm regardless of the employment relationship between the tortfeasor employee and the government. See LaFrancis v. United States, 66 F. Supp. 2d 335, 341 (D. Conn. 1999) (dismissing a claim of negligent supervision against the military by the abused wife of a Navy officer on the grounds that the government did not provide any service to her and other similarly situated individuals of such nature that a duty arose to protect her from harm regardless of the employment status of the assailant). As any duty to supervise the alleged attacker arises out of the employment relationship between the government and the employee tortfeasor, the claim is barred by the intentional tort exception and should be dismissed due to a lack of subject matter jurisdiction. See Guccione, 878 F.2d at 33; see also Kenna v. United States, 927 F. Supp. 62, 66 (E.D.N.Y. 1996); 28 U.S.C. §2680(h). 3. Bowman’s Medical Malpractice Claim is Barred by the Statute of Limitations Pursuant to the FTCA, a tort claim against the United States is barred unless (1) “it is presented in writing to the appropriate Federal agency within two years after such a claim accrues” or (2) “action is begun within six months after the date of mailing . . . of notice of final denial of the claim by the agency to which it was presented.” 28 U.S.C. §2401(b); Mignogna, 937 F.2d at 39. The burden is on the plaintiff to plead compliance with section 2401(b). See Johnson v. Smithsonian Inst., 189 F.3d 180, 189 (2d Cir. 1999) (citation omitted). “Unless a plaintiff complies with th[ese] requirements, a district court lacks subject matter jurisdiction over a plaintiff’s FTCA claim.” Id. (citing United States v. Kubrick, 444 U.S. 111, 117-18, 100 S. Ct. 352, 357, 62 L. Ed. 2d 259 (1979)). See also Glover v. United States, 111 F. Supp. 2d 190, 192 (E.D.N.Y. 2000). The government concedes that Bowman filed his claim regarding Dr. Lee’s alleged malpractice with the Department of Veterans Affairs in a timely manner. See Def. Memo at 7; see also Torrance Decl., Ex. G (Letter from the Department of Veterans Affairs to Regina Darby, Esq., dated Sept. 7, 2001, denying Bowman’s medical malpractice claim) (“VA Letter”). The VA Letter informed Bowman’s lawyer at that time that she had the right to request reconsideration of the denial of the medical malpractice claim within six months of the mailing date of the VA Letter. See 39 C.F.R. §912.9. However, Bowman neither alleges that he sought reconsideration nor is there any documentation that he did. In fact, Bowman did not file the present action until July 31, 2002, nearly eleven months after the mailing date of the VA Letter and nearly five months after the timeframe set forth in section 2401(b). Given these circumstances, Bowman’s claim is time-barred. This Court may equitably toll the FTCA’s statute of limitations to allow Bowman’s claim to proceed, but this remedy should be applied sparingly. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, 457, 112 L. Ed. 2d 435 (1990). To merit application of the doctrine of equitable tolling, the plaintiff must demonstrate that he acted with “reasonable diligence” during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances “beyond his control” prevented successful filing during that time. See Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001). Equitable tolling also applies in situations “where the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass.” Irwin, 498 U.S. at 96, 111 S. Ct. at 458. Bowman explains that (1) “[t]he reason I am late to bring this complaint is due to the many agencies that I went to for help and did not get it” and (2) the fact that certain medical records he needed from the Veterans Hospital are missing. Amended Compl. at 1. He also asks the Court to waive the statutory timing requirements “because of my sight, I am blind in . . . one eye, and I reported the incident the same day.” Bowman Opp. at 3. These factors are not sufficient for this Court to waive the statutory timing requirements. That Bowman went to many federal agencies for help does not implicate the agencies in any misconduct that prevented him from filing this action in a timely manner. Defendants concede that “certain medical records pertaining to his December 5, 1997 visit to the Bronx VA Medical Center are missing.” Def. Memo at 8 n.7; see also Torrance Decl., Ex. B. However, “a plaintiff need not know each and every relevant fact of his injury or even that the injury implicates a cognizable legal claim. Rather, a claim will accrue when the plaintiff knows, or should know, enough of the critical facts of injury and causation to protect himself by seeking legal advice.” Kronisch v. United States, 150 F.3d 112, 121 (2d Cir. 1998). Bowman timely pursued his administrative remedies for medical malpractice. See, e.g., VA Letter; Letter from Bowman to Senator Hillary Rodham Clinton, dated November 15, 2001 (indicating that Bowman knew of his rotator cuff injury and alleged misdiagnosis by Dr. Lee as early as November 9, 1998). Therefore, the fact that the medical records are missing did not prevent Bowman from “discover[ing] the critical facts of both his injury and its cause.” Kronisch, 150 F.3d at 121. Thus, equitable tolling is inapplicable and Bowman’s medical malpractice claim should be dismissed. III. Conclusion For the reasons set forth above, the United States is substituted for the named defendants as the sole defendant and the motion of the United States to dismiss the Amended Complaint for lack of subject matter jurisdiction is granted. The Clerk of Court is directed to enter judgment dismissing the complaint. So Ordered FootNotes: ††† See Cuffy v. City of New York, 69 N.Y.2d 255, 260, 505 N.E.2d 937, 939-40, 515 N.Y.S.2d 372, 374 (N.Y. 1987) (absent a special relationship between police and citizen, a municipality is not liable for injuries to a citizen due to a failure to provide police protection); see also 28 U.S.C. §2680(h) (providing immunity from liability to “acts or omissions of investigative or law enforcement officers of the United States Government . . . to any claim arising . . . out of assault [or] battery . . . “).

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