IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LUIS SALAZAR, )

Plaintiff, )

vs. ) No. 3:04-CV-2532-K 

)

MAIN POST OFFICE LAREDO, TEXAS, )

Defendant. )

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The

findings, conclusions, and recommendation of the Magistrate Judge are as follows:

I. BACKGROUND

On November 24, 2004, the Court received a civil complaint from plaintiff. Plaintiff therein

complains that postal employees took a $500 ring and payment for a “PO Box” that they refuse to

“set up.” (See Compl. at 1, Answer to Question 1 of Magistrate Judge’s Questionnaire (MJQ).) He

names the “Main Post Office Laredo, Texas” (Post Office) as the sole defendant in his complaint.

(Compl. at 1; Answers to Questions 2 and 3 of MJQ.) Prior to filing this action in federal court,

plaintiff tried to resolve his dispute with the Post Office by calling the Post Office headquarters and

complaining. (See Answer to Question 4 of MJQ.) He was informed that the matter would be

investigated. (Id.) The Court has granted plaintiff permission to proceed in forma pauperis in this

action. No process has been issued in this case. 

II. JURISDICTION

“Federal courts are courts of limited jurisdiction. They possess only that power authorized

by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian

 

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Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). They “must presume that a suit

lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the

party seeking the federal forum.” Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).

In this instance, plaintiff asserts no federal statutory or constitutional basis for this suit

against the Post Office. Nevertheless, liberally construing plaintiff’s pro se complaint, it appears that

plaintiff attempts to raise claims under the Federal Tort Claims Act (FTCA). However, to successfully sue under the FTCA, “a plaintiff must name the United States as the sole defendant.” McGuire

v. Turnbo, 137 F.3d 321, 324 (5th Cir. 1998). More importantly, for purposes of jurisdiction, plaintiff

must exhaust his administrative remedies under the FTCA before filing suit. 

“Exhaustion of administrative remedies is a jurisdictional prerequisite to suit under the Tort

Claims Act, and absent compliance with the statute’s requirement [a] district court [is] without

jurisdiction.” McAfee v. 5th Circuit Judges, 884 F.2d 221, 222-23 (5th Cir. 1989). Section 2675(a)

of Title 28 of the United States Code provides, in pertinent part:

An action shall not be instituted upon a claim against the United States for money

damages for injury or loss of property or personal injury or death 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, unless the claimant shall have

first presented the claim to the appropriate Federal agency and his claim shall have

been finally denied by the agency in writing and sent by certified or registered mail.

The failure of an agency to make final disposition of a claim within six months after

it is filed shall, at the option of the claimant any time thereafter, be deemed a final

denial of the claim for purposes of this section. 

In this instance, plaintiff has not alleged that he has exhausted administrative remedies in

compliance with § 2675(a). Moreover, his answer to Question 4 of the MJQ shows that he has not

exhausted such administrative remedies. Consequently, the Court does not have jurisdiction over

this action to the extent it can be construed as arising under the FTCA. The Court notes that

 

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neither the complaint nor the answers to the MJQ suggest any other basis for federal jurisdiction.

Courts have “a continuing obligation to examine the basis for jurisdiction.” See MCG, Inc.

v. Great Western Energy Corp., 896 F.2d 170, 173 (5th Cir. 1990). The Court may sua sponte raise

the jurisdictional issue at any time. Id.; Burge v. Parish of St. Tammany, 187 F.3d 452, 465-66 (5th

Cir. 1999). Fed. R. Civ. P. 12(h)(3) requires that federal courts dismiss an action “[w]henever it

appears by suggestion of the parties or otherwise that the court lacks jurisdiction over the subject

matter.” Because it appears that the Court lacks subject matter jurisdiction, this action should be

dismissed.

III. RECOMMENDATION

For the foregoing reasons, it is recommended that the District Court DISMISS plaintiff’s

complaint for lack of subject matter jurisdiction. 

SIGNED this 13th day of May, 2005. 

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on plaintiff by mailing a copy to him. Pursuant to 28 U.S.C. § 636(b)(1), any party who

desires to object to these findings, conclusions and recommendation must file and serve written

objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made.

The District Court need not consider frivolous, conclusory, or general objections. Failure to file

written objections to the proposed findings, conclusions, and recommendation within ten days after

being served with a copy shall bar the aggrieved party from appealing the factual findings and legal

conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds

of plain error. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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