McNeary v. United States Marshal Service

Filing 5

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF No. 4] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $13.33 within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittancepayable to Clerk, United States District Court, and to include upon it: (1) his name; (2) his prison registration number; (3) the case number; and (4) that the remittance is for an original proceeding. IT IS FURTHER ORDERED that this action is DISMISSED without prejudice An Order of Dismissal will accompany this Memorandum and Order. 4 Signed by District Judge Henry Edward Autrey on 1/20/15. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
REGINALD MCNEARY,
Plaintiff,
v.
UNITED STATES MARSHAL SERVICE,
Defendant.

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No. 4:14CV2007 HEA

OPINION, MEMORANDUM AND ORDER
Plaintiff sues the United States Marshals Service for alleged medical neglect by officials
at St. Louis County Justice Center and St. Charles County Corrections. The case is dismissed for
lack of jurisdiction. Fed. R. Civ. P. 12(h)(3).
Plaintiff alleges that from October 2013 through April 2014 he was subjected to medical
negligence by jail officials. He says he sent letters to the Marshals Service that were not
answered. Plaintiff does not state the basis for the Court’s jurisdiction. He seeks monetary
relief.
To sue a federal agency for negligence, plaintiff must bring suit under the Federal Torts
Claim Act, 28 U.S.C. §§ 2671-2680 (the “FTCA”). To bring an action in federal court against
the Marshals Service under the FTCA, 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.”). Plaintiff has
not presented his claim to the Marshals Service. Therefore, jurisdiction is lacking.

Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF
No. 4] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $13.33
within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance
payable to “Clerk, United States District Court,” and to include upon it: (1) his name; (2) his
prison registration number; (3) the case number; and (4) that the remittance is for an original
proceeding.
IT IS FURTHER ORDERED that this action is DISMISSED without prejudice
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 20th day of January, 2015.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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