UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS 

COLLIN MOON, §

§

Plaintiff, §

§

versus § CIVIL ACTION NO. 1:23-CV-371

§

UNITED STATES OF AMERICA, §

§

Defendant. §

MEMORANDUM AND ORDER

Pending before the court is Defendant the United States of America’s (“Defendant”)

Motion to Dismiss (#8), Plaintiff Collin Moon’s (“Plaintiff”) Response (#10), and Defendant’s

Reply (#12). Having considered the motion, the submissions of the parties, the record, and

applicable law, the court is of the opinion that the motion should be granted. 

I. Background

By way of a Second Amended Complaint filed October 23, 2023 (#5), Plaintiff asserts an

action under the Federal Tort Claims Act (“FTCA”) and the Eighth Amendment against Defendant

for injuries he allegedly received on November 12, 2021, while incarcerated at the United States

Penitentiary in Beaumont, Texas (“USP Beaumont”). Plaintiff contends the following: 

Due to the negligence and gross negligence of a guard at USP Beaumont, [P]laintiff

lost part of a finger when the guard slammed a cell door on it. Afterwards, the

prison violated the Eighth Amendment to the United States Constitution by failing

to provide Plaintiff his medications and negligently [taking] Plaintiff’s property.

Second Amended Complaint (#5).

In the Motion to Dismiss, Defendant argues dismissal under Federal Rule of Civil

Procedure 12(b)(1) is appropriate because Plaintiff failed to present the administrative tort claim

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to the Bureau of Prisons (“BOP”) and the independent contractor exception precludes this action

against the Defendant under the FTCA. Defendant also argues that dismissal under Federal Rule

of Civil Procedure 12(b)(6) for failure to state a claim is appropriate because Defendant cannot

be held liable for violations of constitutional rights under the FTCA. 

In his Response filed January 2, 2024, Plaintiff concedes that the independent contractor

exception applies and that his claims regarding medical treatment are barred. In addition, Plaintiff

waives any Eighth Amendment claims against Defendant. Thus, the only remaining issue is

whether Plaintiff provided proper notice under the FTCA regarding his claims of negligence and

gross negligence with respect to the incident that allegedly caused the loss of Plaintiff’s finger. 

II. Analysis

A. Subject Matter Jurisdiction

A motion to dismiss filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure

challenges the subject matter jurisdiction of the federal district court. See FED. R. CIV. P.

12(b)(1). “Federal courts are courts of limited jurisdiction.” Home Depot U.S.A., Inc., v.

Jackson, 587 U.S. ___, 139 S. Ct. 1743, 1746 (2019) (quoting Kokkonen v. Guardian Life Ins.

Co. of Am., 511 U.S. 375, 377 (1994)); accord Gunn v. Minton, 568 U.S. 251, 256 (2013); Rasul

v. Bush, 542 U.S. 466, 489 (2004); Perez v. McCreary, Veselka, Bragg & Allen, P.C., 45 F.4th

816, 821 (5th Cir. 2022); Cleartrac, L.L.C. v. Lanrick Contractors, L.L.C., 53 F.4th 361, 364

(5th Cir. 2022). “They possess only that power authorized by Constitution and statute, which is

not to be expanded by judicial decree.” Rasul, 542 U.S. at 489 (quoting Kokkonen, 511 U.S. at

377 (citations omitted)). The court “must presume that a suit lies outside this limited jurisdiction,

and the burden of establishing federal jurisdiction rests on the party seeking the federal forum.” 

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Gonzalez v. Limon, 926 F.3d 186, 188 (5th Cir. 2019) (citing Howery v. Allstate Ins. Co., 243

F.3d 912, 916 (5th Cir.), cert. denied, 534 U.S. 993 (2001)); accord Hertz Corp. v. Friend, 559

U.S. 77, 96 (2010); Cleartrac, L.L.C., 53 F.4th at 364.

Pursuant to Congressional grant, federal courts have subject matter jurisdiction and are

authorized to entertain causes of action only where a case arises under federal law or where there

is diversity of citizenship between the parties and the amount in controversy exceeds $75,000.00,

exclusive of interest and costs. See 28 U.S.C. §§ 1331, 1332; Home Depot U.S.A., Inc., 139 S.

Ct. at 1746; Arbaugh v. Y & H Corp., 546 U.S. 500, 513 (2006); Lincoln Prop. Co. v. Roche,

546 U.S. 81, 89 (2005); Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). 

“These jurisdictional grants are known as ‘federal-question jurisdiction’ and ‘diversity

jurisdiction,’ respectively.” Home Depot U.S.A., Inc., 139 S. Ct. at 1746. “Each serves a

distinct purpose: Federal-question jurisdiction affords parties a federal forum in which ‘to

vindicate federal rights,’ whereas diversity jurisdiction provides ‘a neutral forum’ for parties from

different States.” Id. (quoting Exxon Mobil Corp., 545 U.S. at 552). “A case is properly

dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional

power to adjudicate the case.” CleanCOALition v. TXU Power, 536 F.3d 469, 473 (5th Cir. 2008)

(quoting Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.

1998)); accord Simons v. Davis, No. 20-40570, 2022 WL 3226619, at *1 (5th Cir. Aug. 10,

2022) (quoting Griener v. United States, 900 F.3d 700, 703 (5th Cir. 2018)); Krim v.

PcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir. 2005). “[S]ubject-matter jurisdiction cannot be

created by waiver or consent.” Biziko v. Van Horne, 981 F.3d 418, 420 (5th Cir. 2020) (quoting

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Howery, 243 F.3d at 919); accord Elam v. Kan. City S. Ry. Co., 635 F.3d 796, 802 (5th Cir.

2011).

“A Rule 12(b)(1) motion should be granted only if it appears certain that the plaintiff

cannot prove a plausible set of facts that establish subject-matter jurisdiction.” Davis v. United

States, 597 F.3d 646, 649 (5th Cir. 2009), cert. denied, 559 U.S. 1008 (2010); see Ghedi v.

Mayorkas, 16 F.4th 456, 463 (5th Cir. 2021); Young v. Hosemann, 598 F.3d 184, 188 (5th Cir.

2010); Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). When examining a motion

to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), however, unlike a motion

to dismiss under Rule 12(b)(6), the district court is entitled to consider disputed facts as well as

undisputed facts in the record. Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 762

(5th Cir. 2011); Spotts v. United States, 613 F.3d 559, 565 (5th Cir. 2010); Ramming, 281 F.3d

at 161. Indeed, in ruling on such a motion, a court may consider “(1) the complaint alone; (2) the

complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint

supplemented by undisputed facts plus the court’s resolution of disputed facts.” Moore v. Bryant,

853 F.3d 245, 248 (5th Cir.), cert. denied, 583 U.S. 996 (2017); see Pickett v. Tex. Tech Univ.

Health Scis. Ctr., 37 F.4th 1013, 1019 (5th Cir. 2022) (quoting Williamson v. Tucker, 645 F.2d

404, 413 (5th Cir. 1981)); Spotts, 613 F.3d at 565 (quoting St. Tammany Parish v. Fed.

Emergency Mgmt. Agency, 556 F.3d 307, 315 (5th Cir. 2009); Freeman v. United States, 556

F.3d 326, 334 (5th Cir.), cert. denied, 558 U.S. 826 (2009).

It is well settled that “a district court has broader power to decide its own right to hear the

case than it has when the merits of the case are reached.” Williamson, 645 F.2d at 413; accord

O’Quinn v. Manuel, 773 F.2d 605, 607 (5th Cir. 1985); Williams v. J.B. Hunt Transp., Inc., 132

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F. Supp. 3d 858, 863 n.1 (S.D. Tex. 2015); Diaz v. Castro, 122 F. Supp. 3d 603, 608 n.2 (S.D.

Tex. 2014). The district court has discretion to “decide the defendants’ Rule 12(b)(1) motion on

the evidence and papers submitted by the parties.” Flores v. Pompeo, 936 F.3d 273, 276 (5th Cir.

2019). “Jurisdictional issues are for the court—not a jury—to decide, whether they hinge on legal

or factual determinations.” Williamson, 645 F.2d at 413; accord O’Quinn, 773 F.2d at 607;

Williams, 132 F. Supp. 3d at 863 n.1. The district court is “free to weigh the evidence and

resolve factual disputes in order to satisfy itself that it has the power to hear the case.” Krim, 402

F.3d at 494 n.17 (quoting Montez v. Dep’t of the Navy, 392 F.3d 147, 149 (5th Cir. 2004)). To

determine whether jurisdiction exists, the court will generally resolve any factual disputes from

the pleadings and the affidavits submitted by the parties. Cell Sci. Sys. Corp., 804 F. App’x at

263-64; Bell v. Redflex Traffic Sys., Inc., 374 F. App’x 518, 522 n.3 (5th Cir. 2010); Williams,

132 F. Supp. 3d at 863 n.1. The court may also conduct an evidentiary hearing and “may hear

conflicting written and oral evidence and decide for itself the factual issues which determine

jurisdiction.” Deutsch v. Annis Enters., Inc., 882 F.3d 169, 173 n.1 (5th Cir. 2018); Williamson,

645 F.2d at 413; see Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511-12 (5th Cir.), cert.

denied, 449 U.S. 953 (1980).

The standard of reviewing a motion to dismiss pursuant to 12(b)(1) depends upon whether

the defendant makes a facial or factual challenge to the plaintiff’s complaint.” A.W. v. Humble

Indep. School Dist., 25 F. Supp. 3d 973, 981 (S.D. Tex. June 11, 2014) (citing Paterson v.

Weinberger, 644 F.2d 521, 523 (5th Cir. 1981)); accord Cell Sci. Sys. Corp., 804 F. App’x at

263-64. “A ‘facial attack’ on the complaint requires the court merely to look and see if plaintiff

has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint

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are taken as true for the purposes of the motion.” Cell Sci. Sys. Corp., 804 F. App’x at 263;

accord Den Norske Stats Oljeselskap As v. HeereMac V.O.F., 241 F.3d 420, 424 (5th Cir. 2001),

cert. denied, 534 U.S. 1127 (2002); Williamson, 645 F.2d at 412; Jackson v. Tex. S. Univ., No.

4:16-CV-1123, 2017 WL 1397914, at *2 (S.D. Tex. Apr. 19, 2017) (quoting Menchaca, 613 F.2d

at 511). When a facial attack is involved, a motion under 12(b)(1) should be granted only if it

appears certain that the plaintiff cannot prove any set of facts consistent with the factual allegations

set forth in the complaint that would entitle him to relief on the claims asserted. Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 563 (2007); Home Builders Ass’n of Miss., Inc., 143 F.3d at 1010

(citing Benton v. United States, 960 F.2d 19, 21 (5th Cir. 1992)); see Ramming, 281 F.3d at 161;

Zamora-Orduna Realty Group, LLC. v. BBVA USA, Civil Action No. SA-20-V-0579-FB, 2021

WL 4338955, at *1 (W.D. Tex. Mar. 31, 2021).

In certain situations, a plaintiff’s failure to exhaust administrative remedies may constitute

a jurisdictional defect establishing a basis for dismissal. Taylor v. U.S. Treasury Dep’t, 127 F.3d

470, 475 (5th Cir. 1997); Townsend v. U.S. Dep’t of Just. Immigr. & Naturalization Serv., 799

F.2d 179, 181 (5th Cir. 1986) (“When exhaustion is statutorily mandated, the requirement is

jurisdictional.”); Vargas v. United States, No. SA-20-CV-01130-OLG, 2021 WL 11697744, at

*2 (W.D. Tex. June 10, 2021); Walker v. Mem’l Health Sys. of E. Tex., No. 2:17-CV-66-JRG,

2017 WL 4506801, at *5 (E.D. Tex. June 20, 2017). In some contexts, dismissal for the failure

to exhaust administrative remedies should be urged through a Rule 12(b)(1) motion. Taylor, 127

F.3d at 475; Walker, 2017 WL 4506801, at *5. The United States Court of Appeals for the Fifth

Circuit has held that “[w]henever the Congress statutorily mandates that a claimant exhaust

administrative remedies, the exhaustion requirement is jurisdictional because it is tantamount to

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a legislative investiture of exclusive original jurisdiction in the agency.” Taylor, 127 F.3d at 475;

Townsend, 799 F.2d at 181. Exhaustion is a jurisdictional prerequisite, however, only when

Congress has clearly and unequivocally manifested its intent to require a claimant to exhaust such

administrative remedies. Taylor, 127 F.3d at 475; Walker, 2017 WL 4506801, at *5.

B. Federal Tort Claims Act

“It is axiomatic that the United States may not be sued without its consent and that the

existence of consent is a prerequisite for jurisdiction.” United States v. $4,480,466.16, 942 F.3d

655, 663 (5th Cir. 2019) (quoting United States v. Mitchell, 463 U.S. 206, 212 (1983)), cert.

denied, 141 S. Ct. 112 (2020); In re FEMA Trailer Formaldehyde Prods. Liab. Litig. (Miss.

Plaintiffs), 668 F.3d 281, 287 (5th Cir. 2012). The FTCA operates as a waiver of the United

States’s sovereign immunity for certain tort claims. See 28 U.S.C. §§ 2671-2680 (2006); Levin

v. United States, 568 U.S. 503, 506 (2013); Cascabel Cattle Co., L.L.C. v. United States, 955

F.3d 445, 450 (5th Cir. 2020); Gonzalez v. United States, 851 F.3d 538, 543 (5th Cir. 2017); In

re Supreme Beef Processors, Inc., 468 F.3d 248, 252 (5th Cir. 2006). By waiving sovereign

immunity, the FTCA allows federal courts to exercise jurisdiction over claims brought against the

United States for property damage, personal injury, or death caused by the negligent or wrongful

acts or omissions of federal employees, while acting in the scope of their employment, if a private

person would be liable to the claimant under comparable circumstances. See 28 U.S.C.

§§ 1346(b), 2674; Campos v. United States, 888 F.3d 724, 730 (5th Cir. 2018); Peacock v. United

States, 597 F.3d 654, 659 (5th Cir. 2010). Waivers of sovereign immunity must be

“unequivocally expressed,” and any ambiguity as to the scope of the waiver in statutory language

must be construed in favor of immunity. Fed. Aviation Admin. v. Cooper, 566 U.S. 284, 290

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(2012) (citing Lane v. Pena, 518 U.S. 187, 192 (1996); United States v. Williams, 514 U.S. 527,

531 (1995)); United States v. Mitchell, 445 U.S. 535, 538 (1980); Barco v. Witte, 65 F.4th 782,

784 (5th Cir. 2023), cert. denied, No. 23-251, 2024 WL 71940 (U.S. Jan. 8, 2024);

$4,480,466.16, 942 F.3d at 663 (quoting Doe v. United States, 853 F.3d 792, 796 (5th Cir.

2017)).

C. Exhaustion of Administrative Remedies

In order to invoke a waiver of sovereign immunity and proceed in federal court under the

FTCA, the plaintiff must have first exhausted the administrative remedies made available by the

federal agency involved. See 28 U.S.C. § 2675; McNeil v. United States, 508 U.S. 106, 110

(1993); Coleman v. United States, 912 F.3d 824, 834 (5th Cir. 2019); Pleasant v. United States

ex rel. Overton Brooks Veterans Admin. Hosp., 764 F.3d 445, 448 (5th Cir. 2014). The relevant

statute provides:

(a) 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. The provisions of

this subsection shall not apply to such claims as may be asserted under the Federal

Rules of Civil Procedure by third party complaint, cross-claim, or counterclaim.

(b) Action under this section shall not be instituted for any sum in excess of the

amount of the claim presented to the federal agency, except where the increased

amount is based upon newly discovered evidence not reasonably discoverable at the

time of presenting the claim to the federal agency, or upon allegation and proof of

intervening facts, relating to the amount of the claim. 

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(c) Disposition of any claim by the Attorney General or other head of a federal

agency shall not be competent evidence of liability or amount of damages.

28 U.S.C. § 2675. Section 2675’s claim presentment requirement is satisfied “if the claimant (1)

gives the agency written notice of his or her claim sufficient to enable the agency to investigate

and (2) places a value upon his or her claim.” Adams v. United States, 615 F.2d 284, 289 (5th

Cir.), clarified on other grounds, 622 F.2d 197 (5th Cir. 1980); accord Broussard v. United

States, 52 F.4th 227, 229 (5th Cir. 2022); Pleasant, 764 F.3d at 448-49.

“Noncompliance with section 2675 deprives a claimant of federal court jurisdiction over

his or her claim.” Adams, 615 F.2d at 289. The filing of a claim with the appropriate

governmental agency is an absolute jurisdictional prerequisite and cannot be waived. See McNeil,

508 U.S. at 113; Coleman, 912 F.3d at 834; Transco Leasing Corp., 896 F.2d at 1441. “The

purpose of § 2675 will be served as long as a claim brings to the Government’s attention facts

sufficient to enable it thoroughly to investigate its potential liability and to conduct settlement

negotiations with the claimant.” Pleasant, 764 F.3d at 449 (quoting Rise v. United States, 630

F.2d 1068, 1071 (5th Cir. 1980)); see Adams, 615 F.2d at 289.

The administrative exhaustion requirement “is more than a mere statement of procedural

niceties. It requires that jurisdiction must exist at the time the complaint is filed.” Coleman, 912

F.3d at 834 (citing Gregory v. Mitchell, 634 F.2d 199, 204 (5th Cir. 1981)); see 28 U.S.C.

§ 2675(a); McNeil, 508 U.S. at 111. The burden is on the plaintiff to prove that the federal

agency received notice of the written claim; merely mailing the claim will not suffice. Barber v.

United States, 642 F. App’x 411, 415 (5th Cir. 2016); see Stancomb v. United States, 121 F.

Supp. 2d 1019, 1020-21 (E.D. Tex. 2000) (citing Moya v. United States, 35 F.3d 501, 504 (10th

Cir. 1994); 28 C.F.R. § 14.2(a)); see also Drazan v. United States, 762 F.2d 56, 58 (7th Cir.

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1985) (holding that “mailing is not presenting; there must be receipt”); Dark v. United States, Civ.

A. No. 91-1438, 1991 WL 147544, at *2-3 (E.D. Pa. July 26, 1991), aff’d, 961 F.2d 1566 (3d

Cir. 1992) (finding statements by plaintiff’s attorney that request was mailed accompanied by copy

of request letter were insufficient to prove receipt). 

Defendant here maintains that the BOP never received notice of Plaintiff’s claim,

presenting as evidence the sworn declaration of Johnna Burrows, a representative of the South

Central Regional Office of the BOP. Plaintiff argues that (1) counsel drafted the notices of claim

within the time allowed by law, (2) sent the notices to secretarial staff to be sent out, and (3) that

it was the habit of staff at Lento Law Group to promptly send out letters.1 Plaintiff, however,

provides no evidence to establish that the notices were actually sent out, let alone were, in fact,

received by the BOP.2

In this situation, Plaintiff has not demonstrated that the BOP received notice of his claim

as required by 28 U.S.C. § 2675. There is no evidence that the United States was aware of

Plaintiff’s claim prior to being served with the complaint in this case; thus, it was unable to

investigate the incident at issue in a timely manner. The purpose of the notice requirement is to

set forth sufficient facts to enable the government to investigate its potential liability and to

conduct settlement negotiations. See Frantz v. United States, 29 F.3d 222, 224 (5th Cir. 1994). 

As stated by the Ninth Circuit, the court should not “accept [Plaintiff’s] invitation to rewrite the

1 The exhibits attached to Plaintiff’s Response show that notices were purportedly sent to the

Federal Bureau of Prisons, Legal Department, North Central Regional Office, in Kansas City, Kansas,

and USP Beaumont in Beaumont, Texas, on January 20, 2022. 

2 The cover letters indicate that they were sent certified mail, return receipt requested, and include

the tracking numbers. Plaintiff, however, has failed to attach any return receipt or any documentation

relating to the tracking.

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[FTCA] and in effect repeal the regulation by holding that mailing alone is sufficient to meet the

requirement that a claim be ‘presented.’” Bailey v. United States, 642 F.2d 344, 347 (9th Cir.

1981). Here, Plaintiff has failed to show that he mailed the letters and that they were received by

the BOP, having submitted no affidavit or other proof of mailing and receipt. See id. (plaintiffs

“did not send [notice of the claim] by certified or registered mail, a well known and easy way to

establish receipt”); accord Dark, 1991 WL 147544, at *3. Under the circumstances, Plaintiff’s

FTCA claim against Defendant must be dismissed for failure to exhaust administrative remedies,

thus depriving the court of subject matter jurisdiction of this action. 

III. Conclusion

Defendant’s Motion to Dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(1)

(#8) is GRANTED. Plaintiff’s claims pursuant to the FTCA are dismissed for failure to exhaust 

administrative remedies, as the court is without jurisdiction to consider his claims. 

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