Thomas v. Szoke et al
Filing
71
ORDER: Plaintiff is ordered to file an Amended Complaint on or before April 11, 2012. Signed by Judge G. Patrick Murphy on 4/3/2012. (mab)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CLARENCE THOMAS
Plaintiff,
vs.
DAVID F. SZOKE, et al.,
Defendants.
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CIVIL NO. 10-838-GPM-DGW
MEMORANDUM AND ORDER
MURPHY, District Judge:
This case is before the Court sua sponte on the issue of federal subject matter jurisdiction.
See Foster v. Hill, 497 F.3d 695, 696-97 (7th Cir. 2007)) (“It is the responsibility of a court to make
an independent evaluation of whether subject matter jurisdiction exists in every case.”); Johnson v.
Wattenbarger, 361 F.3d 991, 992 (7th Cir. 2004) (a district court’s “first duty in every suit” is “to
determine the existence of subject-matter jurisdiction”).
Plaintiff Clarence Thomas asserts a Bivens claim against Defendant Szoke for deliberate
indifference to a serious medical need in violation of the Eighth Amendment. Plaintiff also asserts
medical negligence claims against Defendants Fix and Szoke pursuant to the Federal Tort Claims
Act (“FTCA”). However, before Plaintiff’s FTCA claims can proceed further, this Court must be
satisfied of its federal subject matter jurisdiction. See Hay v. Indiana State Bd. of Tax Comm’rs, 312
F.3d 876, 879 (7th Cir. 2002) (“Jurisdiction is the power to declare law, and without it the federal
courts cannot proceed. Accordingly, not only may the federal courts police subject matter
jurisdiction sua sponte, they must.”) (quotation omitted).
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Under the FTCA, the district courts “have exclusive jurisdiction of civil actions on claims
against the United States, for money damages, accruing on and after January 1, 1945, for injury . .
. caused by the negligent or wrongful act or omission of any employee of the Government while
acting within the scope of his office or employment . . . .” 28 U.S.C. § 1346(b)(1) (emphasis added).
Plaintiff has failed to make these relevant allegations about Defendants Fix or Szoke. If Plaintiff
can make these allegation, then the United States may be substituted as the proper defendant if the
Attorney General certifies that Defendants were acting within the scope of their employment at the
time the challenged events occurred. 28 U.S.C. § 2679(d)(1).1 Accordingly, Plaintiff is ORDERED
to file an amended complaint on or before April 11, 2012, to properly allege the employment status
of Defendants Fix and Szoke and the scope in which they were acting at the challenged time so as
to satisfy this Court of its federal subject matter jurisdiction.
IT IS SO ORDERED.
DATED: April 3, 2012
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G. PATRICK MURPHY
United States District Judge
1
The Court does note that on October 11, 2011, the Court granted the motion to substitute
United States of America as a Defendant in lieu of Dr. David F. Szoke for Plaintiff’s tort claim
(Doc. 39).
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