The opinion of the court was delivered by: Honorable David M. Lawson
Magistrate Judge Mona K. Majzoub
ORDER ADOPTING MAGISTRATE JUDGE'S RECOMMENDATION, OVERRULING PLAINTIFF'S OBJECTIONS, AND GRANTING DEFENDANT'S MOTION TO DISMISS
The plaintiff filed a pro se complaint in this Court alleging that she purchased a house from the United States Department of Housing and Urban Development (HUD), which was considerably less commodious than as first appeared. She contends that the house suffered extensive flood damage, which was concealed by the defendant's fraud. The case was referred to Magistrate Judge Mona K. Majzoub to conduct all pretrial proceedings. Last September, following the government's motion to dismiss, Judge Majzoub filed a report recommending that the case be dismissed for want of subject matter jurisdiction because the plaintiff failed to exhaust her administrative remedies under the Federal Tort Claims Act (FTCA), which is a prerequisite for bringing suit against the government. The plaintiff filed timely objections to the report contending that she sent two letters to HUD that ought to function as the equivalent of an administrative claim. The magistrate judge did not consider these letters, which was error, but the Court still lacks subject matter jurisdiction because the "claims" were never denied and the required time did not pass before the lawsuit was commenced. Therefore, the Court will overrule the objections, adopt the recommendation, grant the government's motion to dismiss, and dismiss the case without prejudice.
The plaintiff alleges in her pro se complaint filed June 22, 2009 that she purchased her home from HUD, and before the purchase HUD was negligent in winterizing and maintaining the house. She contends that the house was flooded and HUD fraudulently concealed the damage from her. According to the plaintiff's complaint, HUD left the house flooded during the spring and summer of 2004 and then drained the water and removed everything that showed water damage before it sold the home to the plaintiff. The plaintiff alleges that the flooding created a "deadly mycotoxic environment," which has allegedly been proven by extensive testing. As a result, the plaintiff says that she and her family, which consists of her husband and two young children, suffer from asthma, chronic bronchitis, bleeding, swelling, headaches, nausea, precancerous conditions, emotional distress, and neurological and immunological damage. The plaintiff further states that contractors have complained to them about illnesses. The plaintiff has "maxxed [sic] out all credit cards tearing this house to the studs, to rebuild only to find the mycotoxic molds remain...." Compl. at 2.
The plaintiff allegedly has "been in constant contact with HUD from the start on a weekly basis," but HUD has done nothing. Ibid. The plaintiff alleges that Legal Aid would not help her and that she and her husband cannot afford an attorney. She says that she and her family are forced to vacate the property, and she seeks damages for her family's injuries. The plaintiff attached several items to her complaint: (1) a March 31, 2009 demand letter to HUD mailed on her behalf by a lawyer, Christopher Bowman, which explained the situation and the condition of the house and its residents, provided air-quality test results, informed HUD that a water bill from May of 2004 (when HUD owned the property) exceeded $2,500, requested that HUD repurchase the house for $124,970, and suggested a settlement in the amount of $200,000, which would cover some medical expenses; (2) a letter of intent to settle the claim by receiving $500,000 in damages and having Freddie Mac repurchase the house; (3) photos of the house; (4) the sales contract between HUD and the plaintiff; (5) a series of bills; (6) lab reports concluding that unusual mold conditions exist in the house; and (7) medical documents and a doctor's note saying that mold is present in the house and the plaintiff should be removed from the home immediately.
The plaintiff states in her objections to Judge Majzoub's report that she mailed the letter of intent (item 2, above) to HUD on February 25, 2009, and apparently attorney Bowman mailed the demand letter (item 1, above) on March 29, 2009. On May 14, 2009, the plaintiff submitted a Standard Form 95, which customarily is used to present an administrative claim under the FTCA, see 28 U.S.C. § 2675; she filed her complaint on June 22, 2009. Attached to the defendant's motion to dismiss was a declaration from Miniard Culpepper, the HUD Regional Counselor who supervises the review and processing of FTCA claims against HUD. Mr. Culpepper stated that the plaintiff filed a claim on May 14, 2009 and HUD had not made a final disposition denying the plaintiff's claim as of the date of the declaration, which is August 17, 2009.
The magistrate judge recommended that the Court grant the defendant's motion to dismiss the case without prejudice. Although the plaintiff did not state what cause of action she was pursuing, the magistrate judge (and the defendant) presumed that the plaintiff was proceeding under the FTCA, which was reasonable since suits against the government are barred by the doctrine of sovereign immunity unless the government consents to be sued, as it has in the FTCA. The magistrate judge concluded that the plaintiff failed to exhaust her administrative remedies as required under the FTCA because HUD did not issue a final disposition on her claim, and she could not deem her claim to be denied because six months had not passed between the time she filed her May 14 administrative claim and her June 22 complaint. It does not appear that the magistrate judge considered the plaintiff's February and March 2009 letters as presentments to HUD that would satisfy the exhaustion requirement.
The plaintiff filed two objections to the report and recommendation. First, she points to her letter of intent dated February 25, 2009 "citing all details and relief requested" and a demand letter on March 31, 2009, which describes the relief requested. She believes those letters should satisfy the requirement of an administrative claim presentment. Second, the plaintiff takes issue with the magistrate judge's statement that the plaintiff's complaint did not request relief. It appears that the plaintiff believed that writing "$685,000.00" on the civil cover sheet was sufficient, but she also asks for an opportunity to correct the mistake, as she is acting pro se.
Objections to a report and recommendation are reviewed de novo: "A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). If a party fails to file objections to the report and recommendation, then he or she waives any further right to appeal. Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). The failure to object to the magistrate judge's report also releases the Court from its duty to independently review the motion. Thomas v. Arn, 474 U.S. 140, 149 (1985).
Although the plaintiff was unclear in her complaint as to the basis of her claims against the government, in her response to the defendant's motion to dismiss she confirmed that was suing under the FTCA. The FTCA "bars claimants from bringing suit in federal court until they have exhausted their administrative remedies." McNeil v. United States, 508 U.S. 106, 113 (1993). This bar applies to parties with counsel and to pro se litigants. Ibid. Under the FTCA, plaintiffs must present their claims to the appropriate federal agency and either receive a written notification that the claim has been finally denied or wait six months before filing a complaint. Federal law provides:
An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.
28 U.S.C. § 2675(a). The administrative claim prerequisite is a jurisdictional requirement that cannot be waived. See Rogers v. United States, 675 F.2d 123, 124 (6th Cir. 1982); see also Garrett v. United States, 640 F.2d 24, 26 (6th Cir. 1981) ("'These conditions are jurisdictional ...