The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
Plaintiff, Kenneth A. Hinton, brings this action for medical malpractice in connection with care he received from Unity Health Care, Inc. ("Unity") while he was an inmate at the Central Detention Facility at the District of Columbia Jail ("CDF"). Defendant, the United States of America, substituted for Unity, has moved to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for failure to exhaust administrative remedies as required under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (hereinafter "FTCA"). After thoroughly reviewing the United States'  Motion to Dismiss, the parties' responsive briefing and attachments thereto, the applicable case law and statutory authority, and the record of this case as a whole, the Court concludes that it lacks subject matter jurisdiction over Plaintiff's Complaint. Accordingly, for the reasons below, the Court shall GRANT the United States'  Motion to Dismiss pursuant to Rule 12(b)(1).
As explained above, Plaintiff brings this action for medical malpractice in connection with care he received from Unity while he was an inmate at the CDF. See Notice of Removal of a Civil Action, Docket No. , Ex. A (Complaint) (hereinafter "Compl."). Specifically, Plaintiff alleges that he "suffered ongoing blurred and diminished vision, anxiety, insomnia, post-traumatic stress, and emotional/mental anguish and distress" when Unity failed to provide him with prescription eyeglasses between November 15, 2006 and August 16, 2007. Id. He seeks $2 million in compensatory damages and an additional $2 million in punitive damages. Id.
Plaintiff initiated this action by filing a complaint in the Superior Court for the District of Columbia on January 12, 2009, naming Unity as the defendant. See Notice of Removal of Civil Action. By operation of statute, the Federally Supported Health Care Centers Assistance Act, 42 U.S.C. § 233(g)-(n), Unity has been deemed to be an employee of the federal government, effective October 1, 1996, for purposes of medical malpractice liability protection under the FTCA, 28 U.S.C. § 1346(b)(1). See 42 U.S.C. § 233(a)-(b), (g) (exclusiveness of remedy against United States for those deemed Public Health Service employees). See also Gov't's MTD, Ex. 2 (Declaration of Meredith Torres) (hereinafter "Torres Decl.") ¶ 5. Unity's eligibility for FTCA coverage has continued uninterrupted since that time. Torres Decl. ¶ 5. Accordingly, on June 15, 2009, Plaintiff's action was removed from Superior Court and the United States of America was substituted for Unity as the defendant pursuant to 28 U.S.C. § 2679(d)(1) and 42 U.S.C. § 233(c). See Notice of Removal of a Civil Action.
As set forth in Plaintiff's Complaint, Plaintiff alleges that while he was an inmate at CDF, he was seen by two ophthalmologists, Drs. Barry and Boschulte, both of whom were employed by Unity. See Compl. Following an eye examination on November 15, 2006, Plaintiff claims that he was given a prescription for eyeglasses by Dr. Barry. Id. When thereafter he did not receive eyeglasses, Plaintiff submitted several inmate grievances and was subsequently reexamined by Dr. Bosculte on July 9, 2007, who also allegedly determined that Plaintiff required prescription eyeglasses. Id. Plaintiff's prescription eyeglasses arrived on August 16, 2007, but Plaintiff maintains that the eyeglasses he received were "not in compliance with the prescription for which I was examined for by Dr. Barry or Dr. Boschulte." Id. Plaintiff has since been released from the D.C. Jail.
On February 2, 2009 - i.e., three weeks after he filed his complaint - Plaintiff filed an administrative claim with the Department of Health and Human Services ("HHS"). Torres Decl. ¶ 4; see also Gov't's MTD, Ex. 3 (Pl.'s Admin. Compl.). Thereafter, on July 22, 2009, HHS denied Plaintiff's administrative complaint, concluding that "[t]he evidence fails to establish that the alleged injuries were due to the negligent or wrongful act or omission of a federal employee acting within the scope of employment." Gov't's' MTD, Ex. 4 (HHS Denial of Claim).
Currently pending before the Court is the United States'  Motion to Dismiss, which was filed on August 14, 2009. On September 4, 2009, Plaintiff filed an Opposition to the United States' Motion to Dismiss, in which Plaintiff concedes that he had failed to exhaust his administrative remedies prior to filing the Complaint in this matter. See Pl.'s Opp'n, Docket No. . Plaintiff nonetheless argues that this Court has discretion to consider his case. See generally id. The Government filed its Reply on September 16, 2009. See Gov't's Reply, Docket No. .
Notwithstanding his apparent opposition to the Government's Motion to Dismiss, Plaintiff has since proceeded to file a second, nearly identical Complaint against the United States that, unlike the Complaint in this case, appears to have been filed in compliance with the FTCA's administrative exhaustion requirement. That is, it was filed after Plaintiff received HHS' denial of his administrative claim on July 22, 2009. Specifically, on September 11, 2009 - i.e., shortly after Plaintiff filed his opposition but before the United States had filed its Reply - Plaintiff, again representing himself pro se, filed a second Complaint against the United States of America. See Hinton v. United States, Civ. Act. No. 09-1726 (CKK).*fn1 The Complaint in that matter asserts violations of the FTCA based on the very same factual allegations at issue in this case. See id.,Docket No. , (Complaint). Indeed, the Complaint in Civil Action No. 09-1726 appears to be substantively identical to the Complaint in the above-captioned matter, save for the fact that it alleges that Plaintiff has now successfully exhausted his administrative remedies under the FTCA. See id. ¶¶ 5-6.
Thus, despite the fact that Plaintiff filed an opposition to the United States' Motion to Dismiss, it appears to the Court that Plaintiff - by filing the Complaint in the related Civil Action No. 09-1726 - has in essence conceded that the above-captioned matter should be dismissed for failure to exhaust his administrative remedies and that he should pursue his FTCA claims against the United States by means of a properly-filed lawsuit in compliance with the FTCA (as he has apparently now done).
A court must dismiss a case when it lacks subject matter jurisdiction pursuant to Rule 12(b)(1). In so doing, the Court may "consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Coalition for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (citations omitted). See also Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005) ("[T]he district court may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction."); Vanover v. Hantman, 77 F. Supp. 2d 91, 98 (D.D.C. 1999), aff'd, 38 F. App'x 4 (D.C. Cir. 2002) ("[W]here a document is referred to in the complaint and is central to plaintiff's claim, such a document attached to the motion papers may be considered without converting the motion to one for summary judgment.") (citing Greenberg v. The Life Ins. Co. of Va., 177 F.3d 507, 514 (6th Cir. 1999)). "At the motion to dismiss stage, counseled complaints, as well as pro se complaints, are to be construed with sufficient liberality to afford all possible inferences favorable to the pleader on allegations of fact." Settles v. U.S. Parole Comm'n,429 F.3d 1098, 1106 (D.C. Cir. 2005). In spite of the favorable inferences that a plaintiff receives on a motion to dismiss, it remains the plaintiff's burden to prove subject matter jurisdiction by a preponderance of the evidence. Am. Farm Bureau v. Envtl. Prot. Agency, 121 F. Supp. 2d 84, 90 (D.D.C. 2000).
As explained above, Plaintiff filed the above-captioned medical malpractice suit against the United States, seeking monetary damages arising from the medical care he received while an inmate at the CDF. Both parties agree that the sole basis for Plaintiff's claims is the FTCA. See Gov't's MTD at 1; Pl.'s Opp'n at 1. Generally, the FTCA provides that the "United States shall be liable [for tort claims] in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674(a). "The FTCA operates as a limited waiver of sovereign immunity, rendering the United States amenable to suit for certain, but not all, tort claims." Rashad v. CDF, 570 F. Supp. 2d 20, 23 (D.D.C. 2008) (citing Richards v. United States, 369 ...