United States District Court, D. Maryland
VICTOR B. PERKINS, Plaintiff
THE UNITED STATES FOOD and DRUG ADMINISTRATION, THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,  Defendants
DEBORAH K. CHASANOW, UNITED STATES DISTRICT JUDGE
complaint, Plaintiff Victor B. Perkins, a self-represented
litigant and an inmate at the Federal Medical Center in
Rochester, Minnesota, claims that Defendants the United
States Food and Drug Administration (“FDA”) and
the United States Department of Health and Human Services
negligently failed to protect consumers from injury from
pharmaceutical products they were “Constitutionally
directed to regulate” and seeks $25 million in damages.
ECF No. 1 at 9; ECF No. 9. Mr. Perkins alleges that the FDA
violated due process by failing to protect consumers from
injuries associated with the “consumption and use of
the [P]rilosec proton pump inhibitor and the protonix
medications.” ECF No. 1 at 2, 6. He asserts that he
suffered two heart attacks from using Prilosec. Id.
moved for dismissal pursuant to Rule 12(b)(1) of the Federal
Rules of Civil Procedure on August 7, 2019. They seek
dismissal of the due process claims and/or civil rights
claims against them on the grounds of sovereign immunity and,
to the extent Mr. Perkins raises a tort claim, for failure to
exhaust his administrative remedies. ECF No. 17. Mr. Perkins
was provided an opportunity to respond to Defendants'
motion but has not done so. The issues are briefed and the
court now rules, no hearing being deemed necessary. Local
Rule 105.6 (D. Md. 2018). For the reasons that follow,
Defendants' motion will be granted.
STANDARD OF REVIEW
motion to dismiss for lack of subject matter jurisdiction
pursuant to Fed.R.Civ.P. 12(b)(1) should be granted
“only if the material jurisdictional facts are not in
dispute and the moving party is entitled to prevail as a
matter of law.” Ferdinand-Davenport v.
Children's Guild, 742 F.Supp.2d 772, 777 (D. Md.
2010) (quoting Evans v. B.F. Perkins Co., a Div. of
Standex Int'l Corp., 166 F.3d 642, 647 (4th Cir.
1999)). In the context of such a motion, the pleadings should
be regarded as “mere evidence on the issue, ” and
courts may “consider evidence outside the pleadings
without converting the proceeding to one for summary
judgment.” Evans, 166 F.3d at 647 (quoting
Richmond, Fredericksburg & Potomac R.R. v. Unites
States, 945 F.2d 765, 768 (4th Cir. 1991)).
plaintiff bears the burden of establishing subject matter
jurisdiction. See Lovern v. Edwards, 190 F.3d 648,
654 (4th Cir. 1999) (citing Thomson v. Gaskill, 315
U.S. 442, 446 (1942); Goldsmith v. Mayor of Balt.,
845 F.2d 61, 63-64 (4th Cir. 1988)). However, a pro
se plaintiff's complaint should not be dismissed
“unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would
entitle him to relief.” Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 1987) (quoting Haines v.
Kerner, 404 U.S. 519, 521 (1972)) (quotation and
citation omitted). Pleadings filed by pro se
litigants, “however unskillfully pleaded, must be
liberally construed.” Noble v. Barnett, 24
F.3d 582, 587 n.6 (4th Cir. 1994) (citing Vinnedge v.
Gibbs, 550 F.2d 926, 928 (4th Cir. 1977)). The failure
to exhaust administrative remedies before bringing a claim is
a basis for dismissal under Rule 12(b)(1). See Khoury v.
Meserve, 268 F.Supp.2d 600, 607 (D. Md. 2003),
aff'd, 85 Fed.Appx. 960 (4th Cir. 2004).
immunity protects the United States and its agencies from all
lawsuits absent a waiver of immunity. Welch v. United
States, 409 F.3d 646, 650 (4th Cir. 2005). Congress may,
through enacting legislation, expressly waive sovereign
immunity for certain suits. See Kerns v. United
States, 585 F.3d 187, 193-94 (4th Cir. 2009). A waiver
of sovereign immunity, however, is “strictly
construed” in favor of the United States. Lane v.
Pena, 518 U.S. 187, 192 (1996).
construed, Mr. Perkins' complaint alleges a violation of
his right to due process under the Fifth Amendment, but does
not contend that Congress has waived sovereign immunity as to
his claim. The Fifth Amendment does not, in and of itself,
operate as a waiver of sovereign immunity. Hopes v.
Roche, Civ. No. RDB-04-2963, 2005 WL 1812820, at *7 (D.
Md. Aug. 2, 2005) (quoting Garcia v. United States,
666 F.2d 960, 966 (5th Cir. 1982)) (“The Constitution
does not waive the Government's sovereign immunity in a
suit for damages.”). A waiver of sovereign immunity,
“if it exists at all, must be found in the statute
giving rise to the cause of action.” Id.
(quoting Garcia, 666 F.2d at 715-18); Lim v.
United States, Civ. No. DKC-10-2574, 2011 WL 2650889, at
*8 (D. Md. July 5, 2011) (“Federal courts have no
jurisdiction over claims against the United States asserting
general violations of the Constitution not authorized by
sole statute Mr. Perkins cites in the complaint, 28
U.S.C.§ 1343, grants district courts original
jurisdiction of certain civil rights claims. ECF No. 1 at 5.
The statute does not waive the United States' immunity to
suit. Jachetta v. United States, 653 F.3d 898,
907-08 (9th Cir. 2011) (Section 1343(a)(3) does not waive the
federal government's sovereign immunity); cf. Randall
v. United States, 95 F.3d 339, 345 (4th Cir. 1996)
(holding that a jurisdictional statute “merely
establishes a subject matter that is within the competence of
federal courts to entertain”); Radin v. United
States, 699 F.2d 681, 685 n. 9 (4th Cir. 1983) (noting
that a jurisdictional statute is “merely a
jurisdictional grant that in no way affects the sovereign
immunity of the United States”).
Federal Tort Claims Act (“FTCA”) provides a
limited waiver of the sovereign immunity in regard to certain
tort actions. See 28 U.S.C. §§ 1346(b),
2674. Under the FTCA, the United States is liable, as a
private person, 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 under the scope of his office or employment[.]”
Id. § 1346(b). As a waiver of sovereign
immunity, the FTCA is to be narrowly construed and is not to
be extended by implication. See United States v. Nordic
Vill., Inc., 503 U.S. 30, 34 (1992). A plaintiff must
exhaust administrative remedies before filing suit, or the
case is subject to dismissal. 28 U.S.C. § 2675(a);
see McNeil v. United States, 508 U.S. 106, 112
(1993); see also Plyler v. United States, 900 F.2d
41, 42 (4th Cir. 1990) (Because “the district court had
no jurisdiction at the time the action was filed, it could
not obtain jurisdiction by simply not acting on the motion to
dismiss until the requisite period had expired.”).
Perkins does not allege that he filed an administrative tort
claim with HHS, nor has he demonstrated that he exhausted
applicable administrative remedies. HHS has no record of Mr.
Perkins filing an administrative tort claim in regard to the
matters he asserts here. See Decl. of Daretia
Hawkins, ECF No. 17-2 ¶ 5. In the absence of any
demonstration by Mr. Perkins of a waiver of sovereign
immunity, the court must dismiss his claims for lack of
subject matter jurisdiction.