Matthews v. Secretary of Veterans Affairs

Opinion

FILED OCT 28 2010 UNITED STATES DISTRICT COURT Clerk, U.S. District & Bankruptcy Courts for the District of Columbia FOR THE DISTRICT OF COLUMBIA

ROBERT R. MATTHEWS,

Plaintiff,

v. Civil Action No. 1e 183r SECRETARY OF VETERANS AFFAIRS,

Defendant.

MEMORANDUM OPINION

This matter is before the Court on plaintiff s application to proceed in forma pauperis and

pro se complaint. The application will be granted and the complaint will be dismissed.

Plaintiff alleges that he unsuccessfully "sought consultation with [a] Veterans Health

Administration orthopedic Resident ... for [a] Service-connected disability," but his efforts

"resulted [in a] complete failure of treatment and diagnosis causing undue personal injury."

CompI. at 1. It appears that plaintiff s sole means of recovery comes under the Federal Tort

Claims Act ("FCTA"), see 28 U.S.c. § 1346(b)(1).

The FTCA provides that the "United States shall be liable [for tort claims] in the same

manner and to the same extent as a private individual under like circumstances." 28 U.S.C. §

2674(a). It requires that a claimant present his claim to the appropriate federal agency prior to

filing a civil action in a federal district court. McNeil v. United States, 508 U.S. 106, 113

(1993); 28 U.S.C. § 2675(a) (requiring claimant to present claim "for money damages for injury

or loss of property ... caused by the negligent or wrongful act or omission of any employee of

the Government while acting within the scope of his office or employment ... to the appropriate

Federal agency" from which written notice of the denial ofthe claim has been forwarded to the

claimant before a suit may be filed). It does not appear that plaintiff has exhausted his

N administrative remedies by having presented his claim first to the appropriate agency and, absent

exhaustion, this Court lacks subject matter jurisdiction. See McNeil, 508 U.S. at 113.

The Court will dismiss this action for lack of subject matter jurisdiction. An Order

consistent with this Memorandum Opinion is issued separately on this same date.

United States District Judge DATE: