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