UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
December 13, 1989
MELVIN WILSON, Plaintiff
UNITED STATES PUBLIC HEALTH SERVICE, Defendant
Shadur, United States District Judge.
The opinion of the court was delivered by: SHADUR
MEMORANDUM OPINION AND ORDER
MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE
Melvin Wilson ("Wilson"), an inmate in the custody of the Illinois Department of Corrections ("DOC"), asks leave to file this action without payment of the filing fee. Wilson's pro se Complaint seeks damages against the United States Public Health Service ("Service") under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671-2680 ("FTCA").
Because the Complaint is frivolous as a matter of law, Wilson's motion for leave to file in forma pauperis is denied and this action is dismissed.
This is the second time Wilson has visited this Court with his FTCA claim against Service -- his earlier Complaint and action tendered under Case No. 89 C 2163 [ 1989 U.S.Dist. LEXIS 4177] were dismissed in this Court's April 14, 1989 memorandum opinion and order (the "Opinion") for Wilson's failure to exhaust his administrative remedies. After that dismissal Wilson submitted his administrative claim to the Department of Health and Human Services ("Department"). Finding no evidence of a negligent or wrongful act by a federal employee, Department denied Wilson's claim on July 21, 1989. With Department's final determination of his claim in hand, Wilson has resubmitted his FTCA claim to this District Court.
In dismissing Wilson's first suit, Opinion at 1-2 remarked on the rather confused nature of Wilson's allegations:
Wilson's Complaint is somewhat opaque. From attached documents it appears the suit has its genesis in a contract between Service and the Illinois Department of Corrections for a study on the transmission of HTLV-III/LAV among adult male inmates in correctional facilities. Although Wilson complains Service is conducting experiments on prisoners, he does not provide any information as to the exact nature and methodology of these experiments. Nor does he specify any particular injury. While his allegations are rather disjointed, Wilson appears to contend the experimentation conducted pursuant to the contract has resulted in his exposure to the virus responsible for AIDS. Exactly how this occurred is left a mystery.
Although Wilson has remedied the procedural exhaustion problem this Court found in his first Complaint, he has not made the factual basis for his claim any clearer.
Once again Wilson charges Service with "conducting human experimentation" on prisoners within DOC custody. Additionally he alleges Service staff is forcing known AIDS carriers to cell with other inmates. But he offers no allegations to indicate how or whether he personally was subjected to some form of medical experimentation or forced to share a cell with a known AIDS carrier.
Absent some such showing of personal injury, Wilson has no basis for suit under the FTCA.
Those deficiencies might perhaps be cured by repleading. But even if that were done, Wilson would still fail because his FTCA Complaint is fatally deficient in another respect: Wilson fails to allege any act of negligence by an employee of the federal government. Except as FTCA alters the traditional rule of sovereign immunity, the United States cannot be called to task for torts of its agents ( Doe v. United States, 838 F.2d 220, 221 (7th Cir. 1988)). Section 1346(b) waives that immunity as to damage actions against the United States:
for injury or loss of property, or personal injury or death caused by the negligent or wrongful action or omission of any employee of the Government while acting within the scope of his office or employment, 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.
As "employee of the Government" is used in Section 1346(b), that term includes officers and employees of any federal agency but excludes "any contractor with the United States" (Section 2671). Wilson's Complaint identifies no wrongful conduct on the part of Service or any other federal agency or employee. Instead Wilson's real grievance is not against Service but rather against DOC in its performance of its governmental contract:
1. All three numbered paragraphs in the Complaint section entitled "Legal Claim" levy charges of unprofessional conduct, fraud and deceit and negligence only against Illinois and its agencies.
2. In like fashion, the Complaint's "Nature of Claim" section refers only to acts of DOC.
To the extent the Complaint may be read to allege tortious conduct by the State or DOC officials, Wilson's remedy is through the action he has filed in the Illinois Court of Claims. But to maintain this action Wilson must allege wrongful conduct on the part of a federal employee or agency.
Having failed to do so, he has no viable claim for relief under FTCA.
Accordingly this Court concludes the Complaint lacks any arguable basis in law or in fact and is thus "frivolous" in the legal sense defined in Neitzke. Wilson's motion for leave to file in forma pauperis is therefore denied and this action is dismissed with prejudice pursuant to Section 1915(d) ( Smith-Bey v. Hospital Administrator, 841 F.2d 751, 758 (7th Cir. 1988)).
Date: December 13, 1989