Opinion
CA 3:00-CV-2645-R.
April 9, 2001.
MEMORANDUM OPINION AND ORDER
Plaintiff Charles Roberts ("Mr. Roberts") asserts various tort claims against defendants United States Army, the Department of Veterans Affairs, and the United States of America. Now before this Court is Defendants' Motion to Dismiss the claims against all parties set forth in the Plaintiff's Original Complaint, pursuant to Rule 12(b)(1), (5), and (6) of the Federal Rules of Civil Procedure, filed on February 1, 2000. It is the opinion of this Court that Defendants' motion be GRANTED.
I. BACKGROUND FACTS
In his thirty-one page complaint, Mr. Roberts appears to claim tort violations against the United States of America and the United States Army for the use of radiation during the Vietnam War. Without detailing any specific incidents throughout his complaint, Mr. Roberts claims that he was injured by radiation during the Vietnam War through the negligence of the United States of America and the United States Army. Mr. Roberts also seeks to hold the United States criminally responsible for fraud, false statement, and other criminal violations. This Court is unable to determine any time, place, or manner of Mr. Robert's injuries, other than they occurred during the Vietnam War.II. ANALYSIS
This Court must grant Defendants' Motion to Dismiss on several grounds. Primarily, this Court does not have jurisdiction over this action, and must dismiss it pursuant to Fed.R.Civ.P. 12(b)(1). In addition, Mr, Roberts has not properly served the United States, mandating dismissal under Fed. Rules Civ. Pro 12(b)(5). Finally, to the extent the Mr. Roberts does state claims that may be understood, they are not claims upon which this Court could grant relief, even if the proper administrative channels had been followed by Mr. Roberts which would have permitted this Court to exercise federal-question jurisdiction over his complaint.
This Court does not have subject-matter jurisdiction over this action. Fed.R.Civ.P. 8(a)(1) requires a plaintiff to include as part of his complain "a short and plain statement of the grounds upon which the court's jurisdiction depends." Mr. Roberts has failed to do so in this case, and his pro-se status cannot save him in this instance. The only colorable claim presented by Mr. Roberts' complaint is that of negligence against the United States Government. In order for this Court to hear a negligence action against the United States, the case must arise under and follow the provisions of the Federal Torts Claims Act, 28 U.S.C. § 1346(b), the federal statute through which sovereign immunity is waived by Congress for negligence actions against the United States. In order to find subject matter jurisdiction on these grounds, this Court must examine whether or not Mr. Roberts' claims fall within the confines of those permitted by the FTCA.
In this case, Mr. Roberts has not filed an administrative claim before filing this lawsuit. The Fifth Circuit has held that the presentation of an administrative claim pursuant to 28 U.S.C. § 2675(a) is a jurisdictional prerequisite to the filing of a suit under the FTCA. See, e.g., Lambert v. United States, 44 F.3d 296 (5th Cir. 1995). Moreover, the FTCA requires that such an administrative action be filed within two years of the time the claim accrues. See 28 U.S.C. § 2401(b) ("[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such a claim accrues.") For the purposes of evaluating whether or not § 2401(b) has been fulfilled, the Fifth Circuit has held that a claim "accrues" at the time of injury or the discovery of the existence of the injury and the probable cause of the injury.See McMillan v. United States, 46 F.3d 377 (5th Cir. 1995). In this case, the Plaintiff does not reference any dates on which his injury was discovered, and he has the affirmative responsibility to do so. Because Mr. Roberts neither properly articulates that his negligence claims fall within the statute of limitations mandated under the FTCA, nor has shown that he filed an administrative claim within this two year statute of limitations, this Court must dismiss the action pending before this Court.
Morever, this Court must dismiss Mr. Roberts' action with prejudice because it is clear from Mr. Roberts' complaint that the negligence he alleges relates to injuries that arose from a service-related activity during the Vietnam War. Both the United States Supreme Court and the Fifth Circuit have held that the United States' immunity from liability under the FTCA is not waived "for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Feres v. United States, 340 U.S. 135, 146 (1950); see also Gaspard v. United States, 713 F.2d 1097, 1101-02 (5th Cir. 1983) (holding that the "Feres Doctrine" barred claims of radiation damage incurred incident to service.) As such, although Mr. Robert's claims are not completely clear, the fact that he does indicate that they are incident to service mandates that his complaint be dismissed with prejudice.