1LR 4.3(d)(1)(A) states:

The clerk’s office shall forward initial filings to 

the magistrate judge for preliminary review to 

determine whether the court has subject matter 

jurisdiction. If the magistrate judge determines 

that the court lacks subject matter jurisdiction, 

the magistrate judge shall either recommend that 

the filings be dismissed or grant the party leave 

to file amended filings in accordance with the 

magistrate judge’s directives.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Roy A. Woodward

v. Civil No. 05-cv-423-PB

United States of America

O R D E R

Roy Woodward has filed a complaint against the United States

of America under the Federal Tort Claims Act, 28 U.S.C. §§ 2671

et seq. (“FTCA”) (document no. 1). As Woodward is proceeding pro

se and has paid his filing fee, the complaint is before me for

preliminary review to determine whether Woodward has properly

invoked the subject matter jurisdiction of this Court. See

United States District Court for the District of New Hampshire

Local Rule (“LR”) 4.3(d)(1)(A).1 

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2

Standard of Review

In conducting the preliminary review authorized by LR

4.3(d)(1)(A), the Court construes pro se pleadings liberally. 

See Ayala Serrano v. Lebron Gonzales, 909 F.2d 8, 15 (1st Cir.

1990) (following Estelle v. Gamble, 429 U.S. 97, 106 (1976) to

construe pro se pleadings liberally in favor of the pro se

party). “The policy behind affording pro se plaintiffs liberal

interpretation is that if they present sufficient facts, the

court may intuit the correct cause of action, even if it was

imperfectly pled.” Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st

Cir. 1997), cert. denied, Ahmed v. Greenwood, 522 U.S. 1148

(1998).

At this preliminary stage of review, all factual assertions

made by the plaintiff and inferences reasonably drawn therefrom

must be accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3

(1st Cir. 1996) (stating the “failure to state a claim” standard

of review and explaining that all “well-pleaded factual

averments,” not bald assertions, must be accepted as true). 

Application of this standard ensures that pro se pleadings are

given fair and meaningful consideration. See Eveland v. Dir. of

C.I.A., 843 F.2d 46, 49 (1st Cir. 1988).

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3

Background

On March 17, 1999, Roy Woodward had surgery to remove his

prostate gland at a Veterans’ Administration Hospital. Woodward

alleges that as a condition of his informed consent to undergo

surgery, he requested a consult with a neurosurgeon which was not

provided to him. Instead, Woodward alleges he was made to

undergo the surgery under duress.

Woodward had requested the neurosurgery consult to discuss

nerve-sparing surgery, in order to protect his post-surgery

erectile function. Woodward understood that nerve-sparing

surgery would allow him to maintain erectile function, which he

let the doctor know was important to him. Woodward believes that

he would have been a good candidate for nerve-sparing surgery. 

Woodward claims that due to the inexperience of his surgeons with

the surgery and their failure to stay up-to-date with advances in

urological surgery, his entire prostate was removed. As a

result, Woodward was rendered totally incontinent and impotent. 

Woodward filed a claim with the Department of Veterans’

Affairs on April 24, 2001. The claim was finally denied in May

of 2005 and Woodward was notified of the decision by mail on June

1, 2005. This action was filed on December 1, 2005. 

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Discussion

1. Federal Subject Matter Jurisdiction

Federal courts are courts of limited jurisdiction. Kokkonen

v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The

presumption is that a federal court lacks jurisdiction. Id.

Consequently, the burden is on the plaintiff who claims

jurisdiction to affirmatively allege jurisdiction and prove it.

Id.; see also Bender v. Williamsport Sch. Dist., 475 U.S. 534,

541 (1986). To bring a civil action within the court’s subject

matter jurisdiction, a plaintiff must allege that his action

involves either a federal question or diversity jurisdiction. 

See 28 U.S.C. §§ 1331 & 1332. Since Woodward has alleged that

his action arises under the FTCA, a federal statute, he has

alleged a claim that invokes federal question jurisdiction. 

2. FTCA Claims

To bring a tort claim against the United States under the

FTCA, a plaintiff must first file an administrative claim with

the appropriate agency within two years of the accrual of the

claim and then file a tort claim against the United States within

six months after the denial of, or failure to act upon, that

claim by the administrative agency. See 28 U.S.C. § 2401(b);

Case 1:05-cv-00423-PB Document 3 Filed 03/08/06 Page 4 of 6
2Woodward filed his claim two years, one month and one week

after his surgery. Ordinarily, a FTCA claim must be filed within

two years of the date of injury, but medical malpractice claims

under the FTCA are subject to a “discovery rule” exception, which

states that the two year limitations period starts to accrue when

the plaintiff has factual knowledge of both the existence and the

cause of his injury. Cascone v. United States, 370 F.3d 95, 104

(1st Cir. 2004) (citing United States v. Kubrick, 444 U.S. 111,

119-20 (1979)). Here, Woodward claims he was unable to know the

extent of his injury for a period of at least six months after

his surgery.

3I note that Woodward was issued a summons by mail on

December 2, 2005. Federal Rule of Civil Procedure 4(m) requires

that service be made within 120 days or the action may be

dismissed without prejudice. Plaintiff has, to date, filed no

return of service. Plaintiff should be mindful that his 120-day

service period will expire on April 3, 2006.

5

Roman v. Townsend, 224 F.3d 24 26 (1st Cir. 2000). The

requirement that a plaintiff sue the United States within the

statutory limitations period is jurisdictional in nature and

cannot be waived. Id. at 28. Woodward filed a timely

administrative claim with the Department of Veterans’ Affairs.2

Woodward’s complaint was filed here within six months of

Woodward’s receipt of the final denial of his administrative

claim. Accordingly, I find that Woodward has met the

jurisdictional requirements for filing suit under the FTCA and

properly invoked the subject matter jurisdiction of this Court.3

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SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: March 8, 2006

cc: Roy A. Woodward, pro se

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