Opinion
Case: 1:15-cv-00178
01-30-2015
Johnathan Johnson, Plaintiff, v. United States of America, Defendant.
Assigned To : Unassigned
Assign. Date : 2/4/2015
Description: Pro Se Gen. Civil
MEMORANDUM OPINION
This matter is before the Court on its initial review of plaintiff's pro se complaint and application to proceed in forma pauperis. The Court will grant plaintiff's application and dismiss the complaint for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3) (requiring the court to dismiss an action "at any time" it determines that subject matter jurisdiction is wanting).
Plaintiff is a New York state prisoner. He sues the United States for $36 million. The complaint arises from the alleged refusal of the Clerk of the United States Supreme Court to accept plaintiff's application for a writ of certiorari.
Under the doctrine of sovereign immunity, the United States is subject to suit only upon consent, which must be clear and unequivocal. United States v. Mitchell, 445 U.S. 535, 538 (1980) (citation omitted); see Lane v. Pena, 518 U.S. 187, 192 (1996) (the United States may be sued only upon consent "unequivocally expressed in statutory text[.]"). The Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671-80, provides a limited waiver of the sovereign's immunity for money damages "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." Id., § 1346(b)(1). To the extent that the complaint presents a potential claim under the FTC A, jurisdiction is wanting because plaintiff has not indicated that he has exhausted his administrative remedies by "first presenting] the claim to the appropriate Federal agency. . . .," 28 U.S.C. § 2675, and this exhaustion requirement is jurisdictional. See Abdurrahman v. Engstrom, 168 Fed.Appx. 445, 445 (D.C. Cir. 2005) (per curiam) (affirming the district court's dismissal of unexhausted FTCA claim "for lack of subject matter jurisdiction"); accord Simpkins v. District of Columbia Gov't, 108 F.3d 366, 371 (D.C. Cir. 2007). Hence, this case will be dismissed. A separate Order accompanies this Memorandum Opinion.
/s/_________
United States District Judge
DATE: January 30th, 2015