Baptichon v. U.S. Dep't of Educ.

JEAN DUFORT BAPTICHON, Plaintiff, v. UNITED STATES DEPARTMENT OF EDUCATION, Defendant.

20-CV-2400 (PKC) (LB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

November 9, 2020

MEMORANDUM & ORDER

PAMELA K. CHEN, United States District Judge:

Plaintiff filed this pro se Complaint on May 26, 2020, seeking damages against the United States Department of Education ("DOE") pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b) and 2671 et seq. (See generally Complaint ("Compl."), Dkt. 1.) By Order dated September 8, 2020, Plaintiff was required to show cause why this Court has subject matter jurisdiction pursuant to the FTCA and to demonstrate that his claims are timely.¹ (Dkt. 14.) On October 1, 2020, Plaintiff submitted a response. (Plaintiff's Response to Order to Show Cause ("Response"), Dkt. 15.) For the reasons discussed below, this action is dismissed for lack of subject matter jurisdiction.

BACKGROUND

Plaintiff's pro se Complaint is a continuation of his longstanding litigation concerning the Thomas M. Cooley Law School's (the "law school") 2003 decision to dismiss Plaintiff for academic deficiencies, and the collection of Plaintiff's student loan in connection with his attendance there. Plaintiff brings this case after two prior unsuccessful actions in federal court.See Order and Judgment Approving Report and Recommendation, Baptichon v. Thomas M. Cooley Law Sch., No. 03-CV-176 (RAE) (ESC) (W.D. Mich. May 3, 2004), ECF No. 27 (dismissing Plaintiff's federal due process claims and remanding remaining state law claims to Michigan state court); Baptichon v. Thomas M. Cooley Law Sch., No. 09-CV-562 (JTN) (ESC), 2009 WL 5214911, at *1 (W.D. Mich. Dec. 28, 2009) (entering judgment in Defendants' favor). In this action, Plaintiff again disputes his $210,663.33 in student loan debt and brings the following claims pursuant to the FTCA against the DOE²: (1) forgery, (2) promissory/equitable estoppel, (3) unlawful collection actions, and (4) unlawful withholding in violation of due process. (Compl., Dkt. 1, at 8-14.)

STANDARD OF REVIEW

A district court shall dismiss an IFP action where it is satisfied that the action "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). In reviewing Plaintiff's Complaint, the Court is mindful "that the submissions of a pro se litigant must be construed liberally and interpreted 'to raise the strongest arguments that they suggest.'" Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (emphasis and additional citations omitted) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d. Cir. 2006)).

"Notwithstanding the liberal pleading standard afforded pro se litigants, federal courts are courts of limited jurisdiction and may not preside over cases if subject matter jurisdiction is lacking." Koso v. McCulloh, No. 18-CV-7415 (JMA) (AYS), 2019 WL 1748606, at *2 (E.D.N.Y. Apr. 18, 2019) (citing Lyndonville Sav. Bank & Tr. Co. v. Lussier, 211 F.3d 697, 700-01 (2d Cir. 2000)). "[B]ecause it involves a court's power to hear a case, subject-matter jurisdiction cannot be forfeited, waived, or conferred by consent of the parties." Platinum-Montaur Life Scis., LLC v. Navidea Biopharmaceuticals, Inc., 943 F.3d 613, 617 (2d Cir. 2019) (internal quotations and citations omitted). Federal courts "have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party." Nguyen v. FXCM Inc., 364 F. Supp. 3d 227, 237 (S.D.N.Y. 2019) (quoting Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006)). "Where jurisdiction is lacking, . . . dismissal is mandatory." Yong Qin Luo v. Mikel, 625 F.3d 772, 775 (2d Cir. 2010) (per curiam) (quoting United Food & Com. Workers Union Loc. 919 v. CenterMark Props. Meriden Square Inc., 30 F.3d 298, 301 (2d Cir. 1994)). Federal jurisdiction is generally available only where a "federal question" is presented, 28 U.S.C. § 1331,or where the plaintiff and defendant are of diverse citizenship and the amount in controversy exceeds $75,000, 28 U.S.C. § 1332.

DISCUSSION

The FTCA provides "the exclusive remedy for a suit for damages for injury resulting from the negligent or wrongful act or omissions of any employee of the Government while acting within the scope of his office or employment."³ Logan v. Matveevskii, 57 F. Supp. 3d 234, 283 (S.D.N.Y. 2014) (internal quotations and citation omitted). As discussed in the Court's September 8, 2020 Order, "[t]he FTCA requires that a claimant exhaust all administrative remedies before filing a complaint in federal district court." Celestine v. Mt. Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005) (citing McNeil v. United States, 508 U.S. 106, 113 (1993); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994)). This exhaustion requirement "applies equally to litigants with counsel and to those proceeding pro se." Adeleke v. United States, 355 F.3d 144, 153 (2d Cir. 2004) (citation omitted). Plaintiff "has the burden 'to both plead and prove compliance with the statutory requirements' of the FTCA, and 'in the absence of such compliance, [the Court] lacks subject matter jurisdiction over [] [P]laintiff's claim.'" Collins v. U.S. Postal Serv., ___ F. Supp. 3d. ___, 2020 WL 2734362, at *4 (E.D.N.Y. 2020) (alteration omitted) (quoting In re Agent Orange Prod. Liab. Litig., 818 F.2d 210, 214 (2d Cir. 1987)); see also Shabtai v. U.S. Dep't of Educ., No. 02-CV-8437, 2003 WL 21983025, at *6 (S.D.N.Y. Aug.20, 2003) ("The complaint does not allege that plaintiff filed an administrative claim with respect to the alleged torts committed by the DOE, and this failure alone requires dismissal of these claims." (citation omitted)).

A plaintiff satisfies the exhaustion requirement when, within two years of a claim accruing, he brings that "claim to the appropriate Federal agency and that agency either ma[kes] a final denial of the claim or fail[s] to make a disposition on the claim within six months after it was filed." Liriano v. ICE/DHS, 827 F. Supp. 2d 264, 269 (S.D.N.Y. 2011) (citing 28 U.S.C. § 2675(a)); see also Torres v. United States, 612 F. App'x 37, 39 (2d Cir. 2015) (summary order) ("As a precondition for suit under the FTCA, an administrative claim must be filed with the responsible federal agency within two years of plaintiff's alleged injury."). The plaintiff must commence the "tort claim against [the] United States within six months of [the] agency's final denial." Sanon v. Dep't of Higher Educ., 453 F. App'x 28, 30 (2d Cir. 2011) (summary order) (citing 28 U.S.C. § 2401(b)); see also 28 U.S.C. § 2675(a) ("The failure of an agency to make final disposition of a claim within six months after it is filed shall . . . be deemed a final denial of the claim.").

Pursuant to the DOE's regulations, an administrative claim

shall be deemed to have been presented when the [DOE] 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 damage to or loss of property, for personal injury, or for death, alleged to have occurred by reason of the incident.

34 C.F.R. § 35.2(a); see also Sea Gate Beach Club Corp. v. United States, 190 F. Supp. 3d 310, 314 (E.D.N.Y. 2016) (noting "that the administrative filing prerequisites in [the FTCA] encompass a requirement that the request for damages in any administrative claim state a sum certain" (quoting Adams by Adams v. U.S. Dep't of Hous. & Urban Dev., 807 F.2d 318, 320 (2d Cir. 1986))).

In his Complaint, Plaintiff alleges that the DOE (1) forged Plaintiff's signature on a Federal Consolidation Loan Application and Promissory Note dated June 2, 2004 (Compl., Dkt. 1, ¶¶ 17-18); (2) should be held through promissory/equitable estoppel to its September 22, 2009 submission in one of Plaintiff's prior lawsuits, as Plaintiff relied on that submission in failing to repay his student loan⁴ (id. ¶¶ 19-24; see also id. Ex. 3, Dkt. 1, at ECF 27-28); (3) unlawfully brought collection actions seeking repayment of Plaintiff's student loan notwithstanding DOE's September 22, 2009 submission (Compl., Dkt. 1, ¶¶ 25-27); and (4) unlawfully directed the Internal Revenue Services ("IRS") to withhold Plaintiff's and his wife's joint tax return from 2015 to 2019, in violation of due process (id. ¶¶ 28-31). Because the Complaint fails to allege that Plaintiff filed an administrative claim with the DOE for each of these claims, that any such claims were brought within two years after they accrued, that such claims were either denied or six months have elapsed since they were submitted, or that this action was commenced no more than six months after the exhaustion of his administrative remedies, the Court ordered Plaintiff to show cause within 45 days why this action should not be dismissed for lack of subject matter jurisdiction. (Dkt 14.) Specifically, the September 8, 2020 Order stated:

Plaintiff shall provide the date on which he believes each claim accrued, the date on which he filed for administrative relief as to each claim, the name of the federalagency with which he filed the claims, and the agency's final decision on each claim. Plaintiff must attach a copy of his administrative tort claim(s) and a copy of the federal agency's final decision(s). If Plaintiff fails to comply with this Order or show good cause why he cannot comply within the time allowed, the action will be dismissed without prejudice for lack of subject matter jurisdiction.

(Id. at 5.)

Plaintiff's show-cause response fails to establish that he has satisfied the FTCA's exhaustion requirements with respect to any of his four claims. Plaintiff makes bare conclusory statements, such as:

The [DOE], as an agency of the United States and its representatives, employees or servants were and are acting within the scope

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