The opinion of the court was delivered by: Hayes, Judge
The matter pending before the Court is the Motion to Dismiss Plaintiffs' First Amended Complaint ("FAC") (Doc. # 32), filed by Defendant the United States.
Plaintiffs' action arises out of the death of Kyle Przysiecki, a 15 year old minor who was killed in a motor vehicle collision on land owned by the United States Government. FAC, ¶ 1. On January 5, 2007, Plaintiffs filed a Complaint against Defendants Shannon Duane Eifert, County of Imperial, Imperial County Sheriff's Department, United States Bureau of Land Management ("BLM"), State of California Department of Parks and Recreation, California Highway Patrol and Does 1-50. (Doc. # 1). Plaintiffs' Complaint alleges causes of action against the BLM pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-80, and 28 U.S.C. § 1983.
On March 12, 2007, the BLM filed a Motion to Dismiss the Complaint based, in part, on Plaintiffs' failure to exhaust their administrative remedies by filing an administrative claim with an appropriate federal agency prior to bringing their civil action in federal court, as required by the FTCA. (Doc. # 11). In an Order filed on April 14, 2007, the Court dismissed Plaintiffs' causes of action against the BLM for lack of subject matter jurisdiction. (Doc. # 14). The Court found that Plaintiffs presented an administrative claim to the BLM on October 24, 2006 and filed suit in federal court on January 5, 2007. The Court determined that Plaintiffs failed to comply with the FTCA's exhaustion requirements because they filed suit less than six months after presenting their administrative claim with the BLM, and as of the date they filed suit, the BLM had not yet denied Plaintiffs' claim. Id.; see FAC, ¶ 22. The Court granted BLM's Motion to Dismiss, and dismissed Plaintiffs' claims against Defendant BLM without prejudice. (Doc. # 14).
On July 9, 2007, after the BLM denied Plaintiffs' administrative claim, Plaintiffs filed the FAC. (Doc. # 28). The FAC names the United States as a Defendant, and alleges causes of action against the United States pursuant to the FTCA and 28 U.S.C. § 1983.
On July 30, 2007, the United States filed the Motion to Dismiss the FAC, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The United States moves to dismiss Plaintiffs' FTCA claims on grounds that this Court lacks subject matter jurisdiction because the case was originally filed before Plaintiffs exhausted their administrative remedies as required by the FTCA. The United States moves to dismiss Plaintiffs' § 1983 claims on grounds that it is not a proper party to a claim brought under 42 U.S.C. § 1983.
A motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction may attack the substance of the complaint's jurisdictional allegations even though the allegations are formally sufficient. St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989). The party asserting jurisdiction bears the burden of proving that the court has subject matter jurisdiction over its claims. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
I. Plaintiffs' FTCA Claims
The United States moves to dismiss Plaintiffs' FTCA claims against the United States on grounds that the Court lacks subject matter jurisdiction. Mot. to Dismiss, p. 3. The United States contends that Plaintiffs filed their original Complaint before they exhausted their administrative remedies as required by the FTCA, and that Plaintiffs have not "cured" this jurisdictional defect by amending their original Complaint to add the United States as a new FTCA defendant after exhausting their administrative remedies. Id. at 5. The United States contends that the FAC does not constitute a new action. The United States contends that if Plaintiffs wish to litigate their FTCA claims against the United States, they must file a new suit. Id.
Plaintiffs contend that the Court has subject matter jurisdiction over their FTCA claims against the United States. Plaintiffs do not dispute that the original Complaint was premature because it was filed prior to the exhaustion of their administrative remedies. Plaintiffs contend that the FAC alleges a "new" FTCA action against a "new" defendant, and therefore constitutes a new lawsuit. Opposition to Mot. to Dismiss, p. 3. Since the FAC named the United States as a Defendant for the first time and satisfied the jurisdictional requirement that administrative remedies be exhausted, Plaintiffs contend it is the functional equivalent of a new complaint. Id. at 5-6.
The United States, as a sovereign, can only be sued to the extent it waives its sovereign immunity and consents to be sued. United States v. Dalm, 494 U.S. 596, 608 (1990). Pursuant to the FTCA, a jurisdictional prerequisite to bringing a lawsuit in federal court against the United States in tort is the filing of an administrative claim with the appropriate federal agency. 28 U.S.C. § 2675(a); Jerves v. U.S., 966 F.2d 517, 518-19 (9th Cir. 1992). Once the administrative claim has been filed, the federal agency has six months to act. 28 U.S.C. § 2675(a). The claimant can file a civil suit under the FTCA only after the agency either denies the claim in writing or fails to make a final disposition of the claim within six months after it is filed. Id. Thus, "'[t]he statutory procedure is clear.' A tort claimant may not commence proceedings in court against the United States without first filing ...