Guile v. United States of America

Filing 4

MEMORANDUM AND ORDER re: 2 ORDERED that plaintiff's motion to proceed in formapauperis is GRANTED. FURTHER ORDERED that plaintiff shall file an amended complaint as set forth in this Order within 30 days. FURTHER ORDERED that if plaintiff fails to timely file an amended complaint, this action shall be dismissed.( Response to Court due by 6/27/2011.). Signed by Honorable Jean C. Hamilton on 5/27/11. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
CLEORA GUILE,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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No. 2:11CV40 JCH

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion to proceed in forma
pauperis. Upon review of the financial information provided with the complaint, the
Court finds plaintiff does not have sufficient funds to pay the filing fee. Consequently,
the motion will be granted.
Under 28 U.S.C. § 1915(e), the Court is required to review a complaint filed in
forma pauperis and dismiss it if it is frivolous, malicious, or fails to state a claim upon
which relief can be granted. Additionally, under Rule 12(h)(3), the Court is required
to dismiss an action at any time if it determines that subject matter jurisdiction is
lacking. Having reviewed the complaint, the Court finds that plaintiff has failed to
establish that the Court has subject matter jurisdiction over this case. However,
because plaintiff is proceeding pro se, the Court will allow plaintiff an opportunity to
file an amended complaint.

Plaintiff brings this action against the United States of America for alleged
medical/dental malpractice. To bring an action in federal court against the United
States under the Federal Torts Claims Act, 28 U.S.C. § 1346, a plaintiff must first
present his or her claim to the appropriate federal agency pursuant to 28 U.S.C.
§ 2675(a). Non-compliance with § 2675(a) operates as a jurisdictional bar to
proceeding in federal court. McCoy v. United States, 264 F.3d 792, 795 (8th Cir.
2001) (“A litigant may not base any part of his tort action against the United States on
claims that were not first presented to the proper administrative agency.”).
The instant complaint does not allege that plaintiff has previously presented her
claim to the appropriate federal agency. As a result, plaintiff has failed to establish that
the Court has jurisdiction over the subject matter of her allegations.
The Court will allow plaintiff to file an amended complaint within thirty days.
Plaintiff is warned that her amended complaint will take the place of her original
complaint and will be the only complaint which this Court reviews. If plaintiff fails to
file an amended complaint within 30 days, this case shall be dismissed.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis is GRANTED.

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IT IS FURTHER ORDERED that plaintiff shall file an amended complaint as
set forth in this Order within 30 days.
IT IS FURTHER ORDERED that if plaintiff fails to timely file an amended
complaint, this action shall be dismissed.
Dated this 27th day of May, 2011.

/s/ Jean C. Hamilton
JEAN C. HAMILTON
UNITED STATES DISTRICT JUDGE

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