IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JESSE D. POLLARD, : Case No. 2:13-CV-069

Plaintiff, :

: JUDGE ECONOMUS

v. : Magistrate Judge Kemp

DEPARTMENT OF VETERANS :

AFFAIRS, et al.,

:

Defendants. :

REPORT AND RECOMMENDATION

On January 25, 2013, plaintiff Jesse D. Pollard filed a pro

se complaint against the United States Department of Veterans

Affairs, VAOPC Columbus, Ohio, VAMC Dayton, Ohio, VAMC

Cincinnati, Ohio, and VA Regional Office Cleveland, alleging

monetary damages related to treatment for a medical injury. Mr.

Pollard also moved to proceed in forma pauperis. Mr. Pollard

qualifies financially for in forma pauperis status, so the motion

to proceed in forma pauperis will be granted. (Doc. #1). For

the following reasons, it will be recommended that this action be

dismissed pursuant to 28 U.S.C. §1915(e)(2).

I.

28 U.S.C. §1915(e)(2) provides that in proceedings in forma

pauperis, the court shall dismiss the case if the action fails to

state a claim on which relief can be granted. A complaint may

not be dismissed for failure to state a claim upon which relief

can be granted if the complaint contains “enough facts to state a

claim to relief that is plausible on its face.” Bell Atlantic

Corp. v. Twombly, 550 U. S. 544, 570 (2007). Pro se complaints

are to be construed liberally in favor of the pro se party. See

Haines v. Kerner, 404 U.S. 519 (1972). The complaint will be

evaluated under these standards.

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II.

The Federal Tort Claims Act (“FTCA”) bars claimants from

bringing a lawsuit against the United States for monetary damages

until they have exhausted their administrative remedies. 28

U.S.C. §2675(a). Accordingly, a plaintiff cannot institute a

lawsuit against the United States for monetary damages based on

personal injury:

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 . . .

Id. More specifically, a claimant may not file a lawsuit

against the United States until either: (1) an agency denied

relief in writing and sends its decision to the claimant by

certified or registered mail or (2) an agency fails to make

a final decision on the claim within six months after it is

filed. Id. The need to exhaust administrative remedies is

a jurisdictional requirement; consequently, if a plaintiff

fails to exhaust his or her administrative remedies, then

the Court lacks subject matter jurisdiction to entertain the

claims. See McNeil v. United States, 508 U.S. 106, 113

(1993). That is, it simply has no power to hear the case at

all. 

There is no evidence before the Court that Mr. Pollard

submitted his claims to the Department of Veterans Affairs prior

to bringing the instant lawsuit. Because Mr. Pollard has

apparently failed to exhaust his administrative remedies prior to

seeking relief in this Court, he may not have satisfied the

prerequisite under the FTCA. Although pro se pleadings are to be

construed liberally, Mr. Pollard is still required to demonstrate

that he has complied with the relevant jurisdictional

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requirement. See, e.g., F. R. Civ. P. 8(a)(1) (stating that “a

claim for relief must contain . . . a short and plain statement

of the grounds for the court’s jurisdiction”). Because Mr.

Pollard has failed to do so, the Court recommends that the claims

be dismissed for lack of subject matter jurisdiction. Of course,

if Mr. Pollard actually submitted a claim to the Department of

Veterans Affairs, but neglected to mention that fact in his

complaint, he may point that out in any objection he files to

this Report and Recommendation. 

III.

For the foregoing reasons, the Court recommends that Mr.

Pollard’s claims be dismissed without prejudice pursuant to 28

U.S.C. §1915(e)(2) for lack of subject matter jurisdiction. 

IV.

If any party seeks review by the District Judge of this

Report and Recommendation, that party may, within fourteen (14)

days of the date of this Report, file and serve on all parties

written objections to those specific proposed findings or

recommendations to which objection is made, together with

supporting authority for the objection(s). A judge of this Court

shall make a de novo determination of those portions of the

report or specified proposed findings or recommendations to which

objection is made. Upon proper objections, a judge of this Court

may accept, reject, or modify, in whole or in part, the findings

or recommendations made herein, may receive further evidence or

may recommit this matter to the magistrate judge with

instructions. 28 U.S.C. §636(b)(1). 

The parties are specifically advised that failure to object

to the Report and Recommendation will result in a waiver of the

right to have the district judge review the Report and

Recommendation de novo, and also operates as a waiver of the

right to appeal the decision of the District Court adopting the

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Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

/s/ Terence P. Kemp 

United States Magistrate Judge

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