United States District Court, Northern District of Illinois, Eastern Division
April 24, 2003
TONY SILVA, PLAINTIFF,
UNITED STATES, DEFENDANT.
The opinion of the court was delivered by: Milton I. Shadur, Senior United States District Judge
Tony Silva ("Silva") has mailed to this District Court's Clerk's Office the signed original of a Complaint against the United States, seeking a trial by jury (which under law is unavailable against the United States as sovereign) and a judgment for $950,000 in compensatory damages.
Although Silva's submission has several other defects — his failure to pay the $150 filing fee, his failure to tender enough counterparts to provide for service of process together with copies of the Complaint itself and. his inadvertent omission of page 6 of the Complaint — another flaw that is fatal to Silva's action requires this Court to dismiss both the Complaint and this action for lack of subject matter jurisdiction.
As the Complaint reflects, Silva has previously been unsuccessful in attempting to proceed before the United States Court of Federal Claims — that Court's dismissal for lack of jurisdiction of the complaint that he had tendered there was affirmed by the Court of Appeals for the Federal Circuit last October (No, 02-5080, 51 Fed. Appx. 12, 2002 WL 31260448 (Fed. Cir. Oct. 9)). At the end of the Federal Circuit's per curiam opinion, Silva was told:
The proper forum for the requested relief, if
available, is the district courts,
But Silva has not heeded the critical "if available" portion of that message. As the attached photocopy of the first page of his current Complaint reflects, he seeks to advance a tort claim under 28 U.S.C. § 1346(b) and 2680(h).*fn1
But the Federal Tort Claims Act, of which Section 2680 is a part, establishes as an essential precondition to bringing any lawsuit based on the asserted misconduct of federal employees the need to have presented that claim to the appropriate federal agency and to have had the claim either denied or not acted upon within a specified period (see Section 2675). Because Silva has failed to comply with that precondition to suit, this Court lacks jurisdiction.*fn2
Accordingly both Silva's Complaint and this action are dismissed for lack of subject matter jurisdiction. That being the case, he has managed to save the $150 filing fee, and it will not be necessary for him to cure the other defects identified at the outset of this memorandum order.