                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


VALERIE MURPHY,                               )
                                              )
               Plaintiff,                     )
                                              )
               v.                             )               Civil Action No. 16-1949-RC
                                              )
                                              )
U.S. MARSHALS,                                )
                                              )
               Defendant.                     )


                                  MEMORANDUM OPINION

       Pending before the Court is Defendant’s Motion to Dismiss under Fed. R. Civ. P.

12(b)(1), ECF No. 4. Defendant contends that jurisdiction is lacking because plaintiff failed to

exhaust her administrative remedies under the Federal Tort Claims Act (“FTCA”). Plaintiff has

not complied with the Court’s November 22, 2016 Order by responding to the instant motion by

December 30, 2016, nor has she requested additional time to respond. Consistent with the

advisements in the order, the Court finds that plaintiff has conceded defendant’s characterization

of her complaint as sounding in tort and its valid argument for dismissal.

       Before obtaining judicial review under the FTCA, a plaintiff must “first present the claim

to the appropriate Federal agency and [her] claim shall have been finally denied by the agency in

writing and sent by certified or registered mail,” or not finally denied “within six months after it

is filed[.]” 28 U.S.C. § 2675(a). The Court of Appeals has “treated the FTCA’s requirement of

filing an administrative complaint with the appropriate agency prior to instituting an action as

jurisdictional.” Simpkins v. D.C. Gov't, 108 F.3d 366, 371 (D.C. Cir. 1997) (citing McNeil v.




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United States, 508 U.S. 106, 113 (1993); Odin v. United States, 656 F.2d 798, 802 (D.C. Cir.

1981)).

          Defendant has no record of receiving a claim from plaintiff “arising out of the incident

described in the complaint.” Decl. of Gerald M. Auerbach ¶ 4, ECF No. 4-2. Plaintiff has

offered nothing to the contrary. Consequently, this case will be dismissed without prejudice.

See Abdurrahman v. Engstrom, 168 Fed.Appx. 445, 445 (D.C. Cir. 2005) (per curiam)

(affirming the district court’s dismissal of unexhausted FTCA claim “for lack of subject matter

jurisdiction”); Simpkins, 108 F.3d at 371 (noting that “with the case in this posture, the court

could no more rule in favor of the government than against it”). A separate order accompanies

this Memorandum Opinion.




                                                       ________/s/____________
                                                       RUDOLPH CONTRERAS
                                                       United States District Judge
Date: January 23, 2017




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