UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MONIQUE DRAGOIU,

Plaintiff,

Case Number 09-12454

v. Honorable David M. Lawson

Magistrate Judge Mona K. Majzoub

THE UNITED STATES DEPARTMENT

OF HOUSING AND URBAN

DEVELOPMENT, 

Defendant.

______________________________________________/

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
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commenced. Therefore, the Court will overrule the objections, adopt the recommendation, grant the

government’s motion to dismiss, and dismiss the case without prejudice.

I.

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
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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
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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. 

II.

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).
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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 requirements,

not capable of waiver or subject to estoppel.’”) (citations omitted). 

Under Department of Justice regulations, a claim is deemed presented for purposes of 28

U.S.C. § 2675(a) when a federal agency receives “an executed Standard Form 95 or other written

notification of an incident, accompanied by a claim for money damages in a sum certain for injury

to or loss of property, personal injury, or death alleged to have occurred by reason of the incident.”

28 C.F.R. § 14.2(a). A claimant presents a claim under section 2675 when he or she “(1) gives the

agency written notice of his or her claim sufficient to enable the agency to investigate and (2) places
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a value on his or her claim.” Douglas v. United States, 658 F.2d 445, 447 (6th Cir. 1981) (quoting

Adams v. United States, 615 F.2d 284, 289 (5th Cir. 1980)). If a claimant’s filing meets the Douglas

requisites, then the presentment requirement has been satisfied, and the claimant has given the

agency sufficient notice. Conn v. United States, 867 F.2d 916, 919 (6th Cir. 1989); see also

Martinez v. United States, 728 F.2d 694, 696 (5th Cir. 1984) (“notice of the skeletal facts of the

claim [is] sufficient to enable the agency to investigate”); Williams v. United States, 693 F.2d 555,

557 (5th Cir. 1982) (“no particular form or manner of giving such notice is required as long as the

agency is somehow informed of the fact of and amount of the claim”). 

If a plaintiff fails to exhaust his or her administrative remedies before filing a suit, then the

court lacks subject matter jurisdiction and cannot proceed; this is true even if the plaintiff fulfills the

requirements of exhaustion after filing suit and before the litigation substantially has progressed.

McNeil, 508 U.S. at 112. In McNeil, the Supreme Court reasoned that Congress unambiguously

required exhaustion before the complaint is filed to ease administrative burdens and control

litigation costs. The Court explained: 

Every premature filing of an action under the FTCA imposes some burden on the

judicial system and on the Department of Justice which must assume the defense of

such actions. Although the burden may be slight in an individual case, the statute

governs the processing of a vast multitude of claims. The interest in orderly

administration of this body of litigation is best served by adherence to the

straightforward statutory command.

Id. at 112.

The magistrate judge failed to consider whether the plaintiff’s March 2009 demand letter or

her February 2009 letter of intent amounted to a “claim presentment.” These letters should have

been discussed, since they satisfy the Douglas test. They gave HUD sufficient notice to investigate
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the claims of house damage, physical illnesses, hospitalizations, and other damages; and the March

letter placed a value on the claim. 

However, even though those letters present a claim, they do not satisfy the administrative

exhaustion requirement because the plaintiff filed here lawsuit too soon. There is no written record

of HUD denying the plaintiff’s claims within six months of the commencement of the present

lawsuit on June 22, 2009, as is required by 28 U.S.C. § 2675(a). Certainly, much more than six

months now have elapsed since the February 2009 letter, and the plaintiff requests that the Court

simply postpone the action without dismissing her claim. But that practical observation does not

cure the jurisdictional defect. Jurisdiction must be assessed at the time the complaint is filed.

United States ex rel. Poteet v. Medtronic, Inc., 552 F.3d 503, 519 (6th Cir. 2009) (stating that “the

basis for a federal court’s subject matter jurisdiction over an action must be apparent from the facts

existing at the time the complaint is brought”) (citing Steel Co. v. Citizens for a Better Env’t, 523

U.S. 83, 94 (1998)). Under McNeil, the Court does not have subject matter jurisdiction over the

complaint when the lawsuit is filed before an administrative claim is denied or sufficient time passes

(i.e., six months) to consider it denied. Neither of those events occurred here; therefore, the case

must be dismissed without prejudice. McNeil, 508 U.S. at 112. 

III.

The plaintiff has not complied with the pre-suit requirements of the Federal Tort Claims Act,

which are necessary to invoke this Court’s jurisdiction to adjudicate a citizen’s complaint against

the federal government. Therefore, the Court must find that it has no subject matter jurisdiction over

the action.
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Accordingly, it is ORDERED that the magistrate judge’s recommendation [dkt #7] is

ADOPTED.

It is further ORDERED that the plaintiff’s objections to the report and recommendation [dkt

#8] are OVERRULED. 

It is further ORDERED that the defendant’s motion to dismiss [dkt #5] is GRANTED, and

the complaint is DISMISSED without prejudice. 

s/David M. Lawson 

DAVID M. LAWSON

United States District Judge

Dated: March 29, 2010

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on March 29, 2010.

s/Teresa Scott-Feijoo 

TERESA SCOTT-FEIJOO