United States District Court, S.D. West Virginia
MEMORANDUM OPINION AND ORDER
A. Faber Senior United States District Judge
before the court is defendant's motion to dismiss for
lack of subject matter jurisdiction. ECF No.
This court does not have subject matter jurisdiction over
plaintiff's claims because each falls within the
discretionary function exception to the Federal Tort Claims
Act. Therefore, defendant's motion is
GRANTED and the court
DISMISSES plaintiff's action with
February 17, 2014, Ms. Stephenson went to the Post Office to
mail a package. See Complaint. That day was
Presidents' Day, a federal holiday, and all retail
windows were closed. See id. At this Post Office,
the public is permitted access to post office boxes
twenty-four hours a day, every day, including federal
parked her car in the Post Office's parking lot, removed
her package from the car, and walked down the sidewalk
running parallel to the Post Office. See id. This
sidewalk was owned by the Post Office. When she reached the
corner of the building, she turned toward the main entrance
of the Post Office and fell on ice. See id.
Plaintiff claims that snow had been removed from the sidewalk
and placed in a pile between the sidewalk and the building.
See id. Plaintiff states that water from the melted
snow must have run across the sidewalk and frozen as
temperatures dropped so that “wide path of ice”
crossed the sidewalk. Id. This buildup of ice caused
plaintiff to slip and fall onto the concrete sidewalk.
contends that defendant negligently failed to keep the
sidewalk “clear and free of ice, ” and that
defendant should have “prevented snow from melting and
running across the sidewalk or, in the alternative, to have
placed salt or ice melt . . . on the area of the sidewalk . .
. so that this plaintiff and members of the public would not
be unreasonably exposed to the danger of falling.”
Id. According to plaintiff, defendant's
negligence directly and proximately resulted in her physical
and emotional injuries. See id. Plaintiff seeks $6,
801.37 in medical expenses, $10, 000.00 in lost income, and
$20, 000.00 in pain and suffering. See id.
has exhausted her administrative remedies pursuant to the
Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§ 1346 et seq., and her complaint was timely
filed. Plaintiff filed her administrative claim on January
29, 2016, before the statute of limitations expired. The
administrative claim was denied on August 18, 2016. Plaintiff
filed her Complaint with this court on December 8, 2016. ECF
7, 2017, the United States filed its Motion to Dismiss and
accompanying memorandum, ECF Nos. 21-22. The United States
contends that the discretionary function exception to the
FTCA bars plaintiff's suit because plaintiff does not
identify any mandatory directives regarding 1) giving patrons
twenty-four hour access to the post office boxes, 2) snow
removal, and 3) providing for re-inspection and cleaning.
See ECF 22. Therefore, the United States asks the
court to dismiss this case for lack of subject matter
STANDARD OF REVIEW
motion to dismiss pursuant to Rule 12(b)(1) asks whether a
court has the ability to hear and adjudicate the claims
brought before it. Federal courts are courts of limited
jurisdiction and can act only in those specific instances
authorized by Congress. Bowman v. White, 388 F.2d
756, 760 (4th Cir. 1968).
plaintiff bears the burden of proving the existence of
subject matter jurisdiction. Evans v. B.F. Perkins
Co., 166 F.3d 642, 647 (4th Cir. 1999). Further, a party
who brings an action against the United States pursuant to
the FTCA “bears the burden of pointing to . . . an
unequivocal waiver of immunity.” Williams v. United
States, 50 F.3d 299, 304 (4th Cir. 1995) (quoting
Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir.
court notes that its analysis of defendant's motion is
not limited to the evidence presented by the parties in their
pleadings. When considering a motion to dismiss under Rule
12(b)(1), “the court may consider the evidence beyond
the scope of the pleadings to resolve factual disputes
concerning jurisdiction.” Williams, 50 F.3d at
304 (citing 2A James W. Moore, Moore's Federal Practice
¶ 12.07 at 12-49-12-50 (2d ed. 1994)); see also
S.R.P. v. United States, 676 F.3d 329, 332 (3d. Cir.
2012) (“Because the Government's motion presented a
factual challenge to subject matter jurisdiction, the
District Court was not confined to the allegations in
[plaintiff's] complaint, and was entitled to
independently evaluate the evidence to resolve disputes over
jurisdictional facts.”)(internal citations omitted).
federal courts do not have jurisdiction over actions against
the United States unless Congress has expressly waived the
United States' sovereign immunity. United States v.
Sherwood, 312 U.S. 584, 586 (1941); Dalehite v.
United States, 346 U.S. 15, 30 (1953) (“[N]o
action lies against the United States unless the legislature
has authorized it.”). The FTCA, however, provides a
limited waiver of the United States' sovereign immunity
in actions arising from personal injuries caused by
government employees acting within the scope of their
employment. See 28 U.S.C. § 1346(b), §
2671, et seq. Under these circumstances, “the
Government will accept liability in the same manner and to
the same extent as a private individual would have under like
circumstances.” Strand v. United States, 233
F.Supp.3d 446, 455 (D. ...