Robinson v. The Federal Government

Filing 5

MEMORANDUM AND ORDER -...IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis is GRANTED. [Doc. 3] IT IS FURTHER ORDERED that plaintiff must show cause, no later than twenty-eight (28) days from the date of t his Memorandum and Order, why this action should not be dismissed. IT IS FURTHER ORDERED that if plaintiff fails to respond to this Memorandum and Order, the Court will dismiss this action without further notice. ( Response to Court due by 12/28/2015.). Signed by District Judge Charles A. Shaw on 11/30/2015. (MRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JERMARSH ROBINSON,
Plaintiff,
v.
THE FEDERAL GOVERNMENT,
Defendant.

)
)
)
)
)
)
)
)
)

No. 4:15-CV-1718 CAS

MEMORANDUM AND ORDER
Plaintiff seeks leave to proceed in forma pauperis in this civil action under the Federal
Torts Claim Act. The motion is granted. Additionally, the Court will order plaintiff to show
cause why this action should not be dismissed for lack of jurisdiction.
The Complaint
Plaintiff alleges that he was injured in an altercation with correctional officers while he
was detained at the St. Louis County Justice Center. He says that FBI Agent Carne Cerone
investigated the incident.

He argues that Agent Cerone was negligent and deceitful in

conducting the investigation because he reported that plaintiff did not have any injuries in his
medical records.
Plaintiff filed a copy of his medical records, and they show that he had headaches and
mild dizziness. The doctor did not make a specific diagnosis. The doctor reported that the
headaches could have either resulted from the altercation or from plaintiff’s high blood pressure.
Specifically the report states: “Headache . . . Impression: Secondary to the altercation with
justice services vs from hypertension (blood pressure elevated).” Pl.’s Ex. at 11.

Discussion
Under Rule 12(h)(3) of the Federal Rules of Civil Procedure, the Court is required to
dismiss a complaint at any time if subject matter jurisdiction does not exist.
To bring an action 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.”).
It does not appear that plaintiff presented his claim to the FBI. Therefore, plaintiff is
directed to show cause why this action should not be summarily dismissed for failure to comply
with § 2675(a).
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis is
GRANTED. [Doc. 3]
IT IS FURTHER ORDERED that plaintiff must show cause, no later than twenty-eight
(28) days from the date of this Memorandum and Order, why this action should not be dismissed.
IT IS FURTHER ORDERED that if plaintiff fails to respond to this Memorandum and
Order, the Court will dismiss this action without further notice.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE
Dated this 30th

day of November, 2015.
2