The opinion of the court was delivered by: Hon. Jerome B. Simandle, District Judge
This matter comes before the Court upon the motion to dismiss [Docket Item No. 48] filed by Charles J. Dudek, Howard Goodwin, Gerald M. Auerbach, and Kenneth King ("the moving defendants"). Pursuant to 28 U.S.C. § 2679(d)(1), the moving defendants request that the United States of America be substituted as the sole defendant. In addition, the moving defendants ask this Court to dismiss the claim against the United States for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) because Plaintiff failed to timely exhaust his administrative remedies. For reasons explained below, the Court shall grant the motion and dismiss all claims against Dudek, Goodwin, Auerbach, King, and the United States.
Plaintiff is a federal prisoner currently confined at the Federal Correction Institution at Fairton, New Jersey. A warrant for Plaintiff's arrest was issued on December 21, 2002, for his failure to report to his parole officer on a timely basis. (Warrant for Arrest at 1, Ex. A to Pamela Perron's Decl.) Plaintiff alleges that federal law enforcement officers repeatedly beat him about the face and upper body during his arrest on February 9, 2004. (Complaint, Brown v. Dudek, at 1; Docket Item No. 1 to Brown v. Dudek, Civil No. 06-4891, hereinafter referred to as "Pl.'s Compl.".) As a result, Plaintiff seeks damages in the amount of $25,000,000 for the injuries he sustained during the arrest. (Final Administrative Tort Claim at 1, Ex. A to Khlayer Graves Sowell's Decl.) Plaintiff's claims arise under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2401, 2671-80, and Bivens v. Six Unknown name Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).*fn1 However, Plaintiff's Bivens claim has previously been dismissed by this Court because the claim was untimely. See Brown v. Dudek, No. 06-4891, 2007 U.S. Dist. LEXIS 31577, at *7-15 (D.N.J. Apr. 25, 2007).
Defendant Howard Goodwin ("Goodwin") was an inspector for the United States Postal Service ("USPS") at the time of the incident in question. See (Certification of Scope of Employment at 2, Attach. 1 to Defs.' Answer, Docket Item No. 17 to Brown v. Dudek, Civil No. 06-4891.) Defendant Charles J. Dudek ("Dudek") was Chief Counsel for the USPS from April 19, 2003 to February 16, 2007. (Conny Davinroy Beatty's Decl. ¶ 1.) Kenneth King ("King"), who was present at the arrest, was and still is a Deputy U.S. Marshal, and Gerald M. Auerbach ("Auerbach") was General Counsel to the United States Marshal Service ("USMS") in February of 2004. (Jessica Born's Decl. ¶¶ 1-2.)
Plaintiff attempted to properly notify the USMS and the USPS by sending three administrative tort claims, dated April 2, 2004, January 9, 2006, and February 7, 2006.
Plaintiff first notified the United States Postal Inspection Service ("USPIS") through a letter dated April 2, 2004. (Pl.'s Compl. at 79-80, 82.) The letter discussed the arrest that occurred in February of 2004. (Id.) The moving defendants allege that the letter was not sent until January 17 and 30 of 2006, however, and the return receipt attached to the letter shows that the USPIS received two copies of the letter on January 17 and 30 of 2006. (Defs.' Mot. at 3; Pl.'s Compl. at 82.) An additional copy of the letter was sent to the USMS and, according to the return receipt, the USMS received the letter on January 30, 2006. (Pl.'s Compl., Brown v. Auerbach at 25, Docket Item No. 2 to Brown v. Dudek, Civil No. 07-1158; hereinafter referred to as "Pl.'s Compl.(2)".) However, Plaintiff alleges that the letter was mailed to the USMS on January 17 and 30 of 2006, though he only includes a return receipt that bears the date January 30, 2006. (Id.) Even though the USMS, one of the proper agencies, received this correspondence from Plaintiff, the USPS never received this letter.*fn2 Regardless of when it was sent and received, the letter did not state the amount of money damages that Plaintiff sought.
Plaintiff sent his second administrative tort claim again to the USPIS, the correspondence*fn3 dated January 9, 2006, was received by the USPIS on January 12, 2006. (Beatty's Decl. ¶ 2; Ex. 1 to Beatty's Decl.) The USPIS forwarded the letter to one of the proper agencies, the USPS, but not the USMS. (Beatty's Decl. ¶ 2.) However, the USPS failed to note what day it received the letter. (Id.) This letter also did not include a demand for a sum certain. (Id.) The return receipt for Plaintiff's notice showed that the USPIS received his document on January 12, 2006; however, another return receipt, which has the same tracking number as the former receipt, shows that the USPIS received the initial administrative notice (dated April 2, 2004) on January 17, 2006. (Pl.'s Compl. at 82.)
Plaintiff sent his final administrative tort claim, dated February 7, 2006, to the Director of the Tort Branch within the DOJ. (Final Administrative Tort Claim at 1-3, Ex. A to Sowell's Decl.) It is undisputed that the DOJ received Plaintiff's final administrative tort claim on February 10, 2006. The record includes two return receipts that bear the Tort Division's (of the DOJ) address. (Pl.'s Compl. at 56, 63; Sowell's*fn4 Decl. ¶ 3; Pl.'s Compl.(2) at 19.) Because Plaintiff sent his final notice to the wrong agency, Mary J. Touhey ("Touhey"), a DOJ trial attorney, and Phyllis J. Pyles ("Pyles"), the director of the Torts Branch of the DOJ, sent letters on March 27, 2006 and May 5, 2006, respectively, to the USMS, the USPS, and Plaintiff explaining that the purpose of the letters was to send Plaintiff's notice to the appropriate agency. (Pl.'s Compl. at 53-54, 57-58.) Within Beatty's declaration she stated that the USPS received the administrative tort claim on April 10, 2006 from the DOJ. (Beatty's Decl. ¶ 3.) In addition, Born's declaration stated that the USMS received Plaintiff's administrative tort claim on April 12, 2006. (Born's Decl. ¶ 3.) Again this notice included all of Plaintiff's former allegations as to what occurred on February 9, 2004. (Final Administrative Tort Claim at 1-3, Ex. A to Sowell's Decl.) Plaintiff wrote that due to the injuries, humiliation, embarrassment, and emotional and physical distress he suffered from, he sought $25,000,000. (Id.) Thus, the final administrative tort claim requested a sum certain, but was not received by the DOJ until February 10, 2006, by the USPS until April 10, 2006, and by the USMS until April 12, 2006.
On April 27, 2006, Auerbach wrote to Plaintiff and explained that the [FTCA] bars any claim that is not received by the appropriate Federal agency within two years after such claim accrues, 28 U.S.C. § 2401(b). The claim received by the DOJ on February 10, 2006, concerned events alleging to have occurred on February 9, 2004; therefore, [Plaintiff's] claim [was] time-barred. For the above reason, the administrative tort claim [Plaintiff] filed against the United States in the amount of $25,000,000.00 is denied. (Ex. B to Born's Decl.)
In response to Auerbach's letter, Plaintiff filed a so-called Notice to Cure Error on May 26, 2006, which the USMS treated as a request for reconsideration. (Born's Decl. ¶ 5.) The USMS and the USPS received the notice on June 5, 2006. (Notice to Cure Error at 1, Ex. C to Born's Decl.) In it, Plaintiff stated that he did file timely claims and that the two prior claims should be considered. (Id.) Because Plaintiff has filed the instant action, the USMS has not issued a decision on Plaintiff's request for reconsideration. (Born's Decl. ¶ 6.)
Beatty wrote to Plaintiff on June 9, 2006, notifying Plaintiff that because the USMS was the first to take action and denied his untimely claim on April 27, 2006, his claim was denied by all other federal agencies involved in the incident, thus the USPS also denied his claim.*fn5
Plaintiff filed suit against both the USPS and the USMS on October 12, 2006 (Civil Action No. 06-4891) and March 12, 2007 (Civil Action No. 07-1158), respectively. Judge Kugler sua sponte consolidated the two claims on April 27, 2007, and in a screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A, dismissed Plaintiff's "Bivens claim alleging excessive force by defendants in violation of his Fourth Amendment rights . . . as time-barred," but declined to dismiss Plaintiff's FTCA claim, which appeared to be "both timely and exhausted." See Brown v. Dudek, 2007 U.S. Dist. LEXIS 31577, at *20. Judge Kugler ruled that Plaintiff's FTCA claim appeared to be timely and exhausted because on the record before the Court at the initial screening phase, Plaintiff appeared to have presented his claim to the Government on time as he signed his administrative tort claim on February 7, 2006, two days before his expiration of a timely claim. Id. at *14. Thus, the matter was permitted to proceed.
On August 1, 2006, within the moving defendants' Answer, they attached a Certification of Scope of Employment regarding Dudek, Goodwin, Auerbach, and King, certifying that all of the moving defendants acted within the scope of their federal employment. (Ex. 1 to ...