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August 19, 2005.


The opinion of the court was delivered by: MICHAEL J. REAGAN McCUSKEY, District Judge


Now before the Court is Defendant United States of America's motion to dismiss Plaintiff Michael Salsman's third amended complaint (Doc. 53) and memorandum in support (Doc. 57). Salsman brought this suit pursuant to the Federal Tort Claims Act, 28 U.S.C. 1346(b), 2671-2680, alleging that the United States was negligent in treating a sinus infection which caused blindness to Salsman's right eye while he was a federal inmate at the Federal Correctional Institution (hereinafter "FCI") in Greenville, Illinois, in 1999. The United States argues that Salsman's third amended complaint should be dismissed as: (1) Salsman failed to exhaust his administrative remedies; (2) Salsman failed to file the requisite medical professional affidavit stating that the case has merit; (3) Salsman failed to timely serve the United States without good cause or excusable neglect; and (4) this Court lacks subject matter jurisdiction. Salsman responded in opposition at Doc. 58, to which the United States replied at Doc. 59. The Court will begin its analysis with a brief recitation of the key facts and procedural history.

Factual Background and Procedural History

  Salsman was an inmate at the FCI in Greenville, Illinois, in December 1999. In early December 1999, Salsman became ill with a sinus infection and his symptoms grew increasingly worse over the month. Salsman alleges that during this time, the United States Bureau of Prisons (hereinafter "BOP") continually denied him medical treatment which caused his symptoms to become progressively worse. As the infection progressed, Salsman states that it began to affect his right eye. Salsman further states that he was periodically treated and monitored by physicians to determine whether his eye showed any improvement.

  On December 20, 1999, Salsman was transferred to St. Louis University Hospital where he underwent surgery to relieve his symptoms. Salsman had sustained severe damage to his optical nerve resulting in blindness to his right eye. He was discharged from St. Louis University Hospital on December 25, 1999, and sent back to FCI. Salsman had a follow-up visit with a physician on December 29, 1999 where he learned that the injury to his right eye was irreversible and that the would never regain sight in his right eye. Salsman alleges it was at this follow-up visit that he became aware of the nature and extent of his injury when he learned that his blindness in his right eye was irreversible. Salsman alleges that while at St. Louis University Hospital he was not aware of the permanent nature of his injury.

  Salsman then filed an administrative claim for personal injury on December 20, 2001 through his attorney who signed a Standard Form 95 on December 20, 2001 and sent it to the BOP by facsimile that same day. See Doc. 51, Exh. A and B. Salsman was notified on January 3, 2002 that his Standard Form 95 was incomplete as it did not have either an original signature by Salsman or evidence that Salsman's attorney, whose signature was on the form, had authorization to act on Salsman's behalf. As a result, Salsman resubmitted the claim with the proper signatures, which was received by the BOP on January 17, 2002. The BOP later denied it on August 29, 2002. Salsman then filed his original complaint in this Court on February 23, 2003. Salsman later amended his complaints three times, resulting in the current-operating third amended complaint (Doc. 51).

  Thereafter, the United States brought its motion to dismiss arguing that this matter should be dismissed as: (1) Salsman failed to timely file an administrative claim with the BOP pursuant to 28 U.S.C. 2401(b); (2) Salsman failed to file the requisite affidavit and report from a medical professional indicating that the case has merit pursuant to 735 ILCS 5/2-622; (3) Salsman failed to serve the United States within 120 days of filing the complaint pursuant to FEDERAL RULE OF CIVIL PROCEDURE 4(m) and cannot show good cause or excusable neglect for his failure to do so; and (4) this Court has no jurisdiction over this matter pursuant to 28 U.S.C. 1331 in a suit against the United States. The Court will address each argument in turn.

  Standard Governing a Motion to Dismiss

  The purpose of a motion to dismiss under FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) is to "test the sufficiency of the complaint, not to decide the merits" of the case. Triad Associates, Inc. v. Chicago Housing Auth., 892 F.2d 583, 586 (7th Cir. 1989). When deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court accepts as true all well-pled factual allegations and resolves in the plaintiff's favor all reasonable inferences. Echevarria v. Chicago Title & Trust Co., 256 F.3d 623, 625 (7th Cir. 2001), citing Transit Express, Inc. v. Ettinger, 246 F.3d 1018, 1023 (7th Cir. 2001).

  Dismissal for failure to state a claim is proper only if the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Alper v. Altheimer & Gray, 257 F.3d 680, 684 (7th Cir. 2001), citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957), and Veazey v. Communications & Cable of Chicago, Inc., 194 F.3d 850, 854 (7th Cir. 1999). Accord Galdikas v. Fagan, 342 F.3d 684, 686 (7th Cir. 2003) ("Dismissal is proper if it appears beyond doubt that the plaintiffs cannot prove any set of facts entitling them to relief.").


  1. Whether Salsman failed to timely exhaust his administrative remedies.

  The United States argues that Salsman failed to exhaust his administrative remedies as he filed a claim with the BOP more than two years after his cause of action accrued. "A tort claim against the United States shall be forever barred unless it is presented . . . within two years after such claim accrues." 28 U.S.C. 2401(b). If Salsman failed to file a proper administrative claim within two years of the accrual of the cause of action, the district court cannot entertain the plaintiff's FTCA suit. Sullivan v. United States, 21 F.3d 198, 206 (7th Cir. 1994). The United States Court of Appeals for the Seventh Circuit has determined that to constitute a claim under the FTCA, the claim must include four things: (1) notification of the incident; (2) a demand for a certain sum; (3) the title or capacity of the person signing; and (4) evidence of this person's authority to represent the claimant. Kanar v. United States, 118 F.3d 527, 528 (7th Cir. 1997).

  The United States argues that as Salsman's Standard Form 95 that was received on December 20, 2001 did not include evidence of his attorney's authority to file the claim on Salsman's behalf, nor Salsman's own signature, it violated the fourth requirement of the Seventh Circuit's test for a claim. Accordingly, the United States argues that Salsman's second claim that was received by the BOP on January 17, 2002 is the one that matters for purposes of the statute of limitations, and it was filed beyond the two ...

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