(PS) Strange v. US Army ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LEVI GARCIA STRANGE, No. 2:20–cv–2408–JAM–KJN PS 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS WITHOUT PREJUDICE 13 v. 14 U.S. ARMY, et al., 15 Defendants. 16 17 On December 4, 2020, plaintiff filed a complaint and motion for leave to proceed in forma 18 pauperis under 28 U.S.C. § 1915 (authorizing the commencement of an action “without 19 prepayment of fees or security” by a person that is unable to pay such fees). (ECF Nos. 1, 2.) 20 The court found plaintiff’s application deficient, and ordered him to supplement his declaration 21 by December 30, 2020. (ECF No. 3.) The deadline has now passed without a response. 22 Further, plaintiff’s complaint alleging a tort against the U.S. fails to allege facts 23 concerning participation in an administrative process. See Gillespie v. Civiletti, 629 F.2d 637, 24 640 (9th Cir. 1980) (“The timely filing of an administrative claim . . . should be affirmatively 25 alleged in the complaint.”). The court included in its IFP order a command for plaintiff to 26 indicate whether he has participated in any administrative process, as required by the Federal Tort 27 Claims Act. (See id.) Plaintiff’s failure to respond leaves the court without subject matter 28 jurisdiction. 1 Given plaintiff's non-responsiveness and the deficiencies in plaintiff's filings, the court 2 | recommends plaintiff's complaint be dismissed for lack of subject matter jurisdiction. See, e.g., 3 | Mendoza v. United States, 661 F. App'x 501, 501-02 (9th Cir. 2016) (finding the district court 4 | “properly dismissed Mendoza’s FTCA claim for lack of subject matter jurisdiction because 5 | Mendoza failed to allege administrative exhaustion under the FTCA.”) (citing Gillespie, 629 F.2d 6 | at 640). 7 RECOMMENDATIONS 8 Accordingly, IT IS HEREBY RECOMMENDED that: 9 1. Plaintiffs application to proceed in forma pauperis be DENIED; 10 2. Plaintiff's complaint be DISMISSED WITHOUT PREJUDICE for failure to allege 11 administrative exhaustion; and 12 3. The Clerk of the Court be directed to CLOSE this case. 13 | These findings and recommendations are submitted to the United States District Judge assigned to 14 | the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen (14) days after 15 | being served with these findings and recommendations, plaintiff may file written objections with 16 | the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 17 | Recommendations.” Plaintiff is advised that failure to file objections within the specified time 18 | may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 19 | (9th Cir. 1998); Martinez v. Y1st, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 20 | Dated: January 21, 2021 Aectl Aharon 22 KENDALL J.NE stra.2408 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28