Cole v. United States of America, et al

1

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

HERNANDO COLE CIVIL ACTION

v. NO: 25-0478

UNITED STATES OF AMERICA, SECTION: C (4)
ET AL.

ORDER AND REASONS

Before the court is The United States’ Motion to Dismiss for Lack of Subject-
Matter Jurisdiction filed December 3, 2025 (R. Doc. 25). The motion is
GRANTED.
I. BACKGROUND
Plaintiff sued the United States of America, Officer Kramer, Unidentified
Parties, and the Department of Homeland Security pursuant to the Federal Tort
Claims Act (FTCA), 28 U.S.C. § 1346, 2671–80, arising out of a stop and detention.
1

Plaintiff alleges he was stopped in New Orleans after running a red light.
2
When
asked what country he was from, plaintiff drove away.
3
The law enforcement officer
followed and pulled him over again.
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After producing his license and registration,
5

1
R. Doc. 19 at 2.
2
Id. at 9.
3
Id. at 9–10.
4
Id. at 10.
5
Id.
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plaintiff was placed “under arrest for being an illegal immigrant and working on an
expired work visa.”
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He was handcuffed and placed in the back of his own vehicle.
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After another vehicle arrived, the decision was made to release plaintiff, “but only
after putting him through the humiliation of sitting on the sidewalk and having
people walking past him looking at [plaintiff] as if he were a criminal.”
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Plaintiff
claims he suffered “embarrassment and a traumatic experience.”
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The United States moves to dismiss the amended complaint arguing the
government’s waiver of sovereign immunity under the FTCA requires plaintiff to
first present an administrative claim to the Department of Homeland Security
(DHS).
10
Having failed to submit the administrative claim, the United States
contends plaintiff has failed to exhaust his administrative remedies.
11
For the
remaining claims, the United States argues it has not waived sovereign immunity.
12

Thus, the United States argues the court lacks subject matter jurisdiction over these
claims.
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II. ANALYSIS

6
Id.
7
Id.
8
Id.
9
Id.
10
R. Doc. 25-1 at 1.
11
Id.
12
Id.
13
Id.
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Pursuant to Federal Rules of Civil Procedure 12(b)(1), “[a] case is properly
dismissed for lack of subject matter jurisdiction when the court lacks the statutory
or constitutional power to adjudicate the case.” Home Builders Association of
Misissippi., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1999) (citation
omitted). The party asserting jurisdiction has the burden of proof. Ramming v.
United States, 281 F.3d 158, 161 (5th Cir. 2001). A court may dismiss an action for
lack of subject matter jurisdiction upon any one of the following: (1) the complaint
alone, (2) the complaint supplemented by undisputed facts evidenced in the record;
or (3) the complaint supplemented by undisputed facts plus the court’s resolution of
disputed facts.” Spotts v. United States, 613 F.3d 559, 565–66 (5th Cir. 2010)
(citation omitted).
“When subject matter jurisdiction is challenged, the [c]ourt first considers
whether the defendant has made a ‘facial’ or a ‘factual’ attack upon the complaint.”
Magee v. Winn-Dixie Stores, Inc., No. 17-cv-8063, 2018 WL 501525, at *2 (E.D. La.
Jan. 22, 2018) (citing Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. May
1981). For a “factual” attack, “the defendant submits affidavits, testimony, or other
evidentiary materials.” Paterson, 644 F.2d at 523. Plaintiff is then required “to
submit facts through some evidentiary method and has the burden of proving by a
preponderance of the evidence that the trial court does have subject matter
jurisdiction.” Id. For a “facial” attack, the court only look[s] “to the sufficiency of
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the allegations in the complaint,” which are presumed true. Magee, 2018 WL
501525, at *2 (citing Paterson, 644 F.3d at 523).
“The FTCA creates a statutory cause of action against the United States for
torts committed by federal officials within the scope of their employment.”
Saunders v. Bush, 15 F.3d 64, 66 (5th Cir. 1994). Under the FTCA, no action for
damages can be made until the claim is first presented to the appropriate federal
agency and is either denied in writing or is left undecided for six months. Hinojosa
v. U.S. Bureau of Prisons, 506 F.App’x 280, 282 (5th Cir. 2013) (citing 28 U.S.C. §
2675(a)). “The requirement is jurisdictional and cannot be waived.” Baker v.
McHugh, 672 F.App’x 357, 362 (5th Cir. 2016) (citing Employees Welfare Comm. v.
Daws, 599 F.2d 1375, 1378 (5th Cir. 1979). The claimant bears the burden of
establishing administrative presentment, which is “strictly construed in favor of the
United States.” Carver v. 152-156 Caroline Avenue, LLC, No. 24-cv-0991, 2025
WL 27308, at *3 (E.D. La. Jan 3, 2025) (citing Barber v. United States, 642 F.App’x
411, 413 (5th Cir. 2016).
Here, the United States submitted evidence to support its motion, so the
motion is considered a “factual” attack. In response, plaintiff submitted a copy of
his complaint to DHS, DHS’s response letter, and plaintiff’s response letter.
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DHS’s
response letter stated:

14
R. Docs. 28-2, 28-3, and 28-4.
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Please be advised that our complaint process does not provide
individuals with legal rights or remedies. Accordingly, [the U.S.
Department of Homeland Security (DHS) Office for Civil Rights and
Civil Liberties] is not able to obtain any legal remedies or damages on
your behalf. Instead, we use complaints like yours to find and address
problems in DHS policy and its implementation. If you believe your
rights have been violated, you may wish to consult an attorney. There
may be time limitations that govern how quickly you need to act to
protect your interests.
15

In Progressive County Mutual Insurance Co. v. US Customs & Border Prot.,
No. EP-22-cv-468-KC, 2023 WL 9105545, at *6 (W.D. Tex. Nov. 17, 2023), the
court concluded that an “email [which] plainly did not state a sum certain nor provide
information from which a sum certain could be determined” did not satisfy the
FTCA’s administrative exhaustion requirements. In Ades v. United States, No. 4:20-
cv-0089-RWS-CAN, 2020 WL 8832502, at *4 (E.D. Tex. Dec. 16, 2020), the court
found that because the purported notice “does not mention or allude to any claim
under the FTCA and more importantly does not request monetary damages or state
a sum certain Plaintiff is seeking to recover from the United States ... Plaintiff []
failed to exhaust administrative remedies....”.
Plaintiff’s submissions to the DHS neither refer to the FTCA nor contain a
sum certain to recover. The DHS response informed plaintiff his complaint was not
considered a request for legal remedies or damages. Without a writing to DHS
referring to a FTCA claim and stating a sum certain to recover, plaintiff did not

15
R. Doc. 28-3 at 1.
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exhaust his administrative remedies. Thus, this court lacks subject-matter
jurisdiction. Plaintiff’s FTCA claims against the United States are dismissed,
without prejudice.
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III. CONCLUSION
IT IS ORDERED that defendant The United States’ Motion to Dismiss for
Lack of Subject-Matter Jurisdiction (R. Doc. 25) is GRANTED. Plaintiff’s claims
against the United States are DISMISSED, WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that on or before August 20, 2026, plaintiff is
instructed to file proof of service, or show good cause, in writing, why service of
process has not been effected on the remaining defendants. Failure to comply with
this order may result in the dismissal of this case in its entirety.
New Orleans, Louisiana this 6th day of August 2026

__________________________________
WILLIAM J. CRAIN
UNITED STATES DISTRICT JUDGE

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The FTCA waives sovereign immunity of the United States for certain torts committed by federal
employees. F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). With respect to plaintiff’s remaining claims against
the United States, the court finds the United States has not waived sovereign immunity.
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