Gibbons v. Ferguson et al

Filing 4

ORDER by Judge Benjamin H Settle denying 1 Motion for Leave to Proceed in forma pauperis and dismissing case.(TG; cc mailed to plaintiff)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 TODD ROY GIBBONS, 8 9 10 Plaintiff, ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT v. BOB FERGUSON, 11 CASE NO. C13-5189 BHS Defendant. 12 13 This matter comes before the Court on Plaintiff Todd Roy Gibbons’s (“Gibbons”) 14 application to proceed in forma pauperis (Dkt. 1) and Gibbons’s proposed complaint 15 (Dkt. 1-1). 16 On March 14, 2012, Gibbons filed a motion to proceed in forma pauperis and a 17 proposed complaint. Gibbons alleges that the United States, through the Washington 18 Attorney General and local medical facilities, has caused him to receive an improper 19 medical diagnosis in early 2005. Dkt. 1-1. Gibbons alleges that the improper diagnosis 20 caused the unfavorable decision in his recent claim for social security benefits. Id. 21 The district court may permit indigent litigants to proceed in forma pauperis upon 22 completion of a proper affidavit of indigency. See 28 U.S.C. § 1915(a). However, the ORDER - 1 1 “privilege of pleading in forma pauperis . . . in civil actions for damages should be 2 allowed only in exceptional circumstances.” Wilborn v. Escalderon, 789 F.2d 1328 (9th 3 Cir. 1986). Moreover, the court has broad discretion in denying an application to proceed 4 in forma pauperis. Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963), cert. denied 375 5 U.S. 845 (1963). 6 A federal court may dismiss sua sponte pursuant to Fed. R. Civ. P. 12(b)(6) when 7 it is clear that the plaintiff has not stated a claim upon which relief may be granted. See 8 Omar v. Sea Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987) (“A trial court may 9 dismiss a claim sua sponte under Fed. R. Civ. P. 12(b)(6) . . . . Such a dismissal may be 10 made without notice where the claimant cannot possibly win relief.”). 11 In this case, Gibbons’s complaint fails to establish that the Court has subject 12 matter jurisdiction. Under the Federally Supported Health Centers Assistance Act 13 (“FSHCAA”), tort claims against qualified and federally funded physicians and clinics 14 are claims against the United States under the Federal Tort Claims Act (“FTCA”). 42 15 U.S.C. § 233. Gibbons has failed to allege that the physicians or clinics that diagnosed 16 him were qualified under the FSHCAA. Although these deficiencies may be solved by 17 amending the complaint, the more fundamental problem of filing an administrative claim 18 within the statute of limitations may not be solved by any amendment. On this issue, the 19 statutory language is clear that a court does not have jurisdiction before administrative 20 remedies have been exhausted, and a court must dismiss any action that is initiated 21 prematurely. McNeil v. United States, 508 U.S. 106, 111 (1993). Gibbons has failed to 22 show that he has exhausted his administrative remedies under the FTCA within the two- ORDER - 2 1 year statute of limitations. Therefore, the Court DENIES Gibbons’s motion to proceed 2 in forma pauperis (Dkt. 1) because it must DISMISS his complaint for lack of subject 3 matter jurisdiction. 4 IT IS SO ORDERED. 5 Dated this 20th day of March, 2013. A 6 7 BENJAMIN H. SETTLE United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER - 3

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