would allow this Court to conclude that she complied with the

Act’s second statute of limitations requirement.

The Complaint states Kampinen never received a response to
her claim. Therefore, as of March 25, 2001, six months after she
filed the claim, she had the option to treat the government’s
failure to respond as a constructive denial of her claim.
According to the Seventh Circuit, she was required to exercise
that option, if at all, by filing suit within a reasonable time
thereafter. Miller, 741 F.2d at 150 (finding that 17 days was
reasonable). Kampinen failed to meet this requirement because
she waited more than 22 months.to file her Complaint. She
offered no explanation for the delay. Accordingly, this Court
concludes that Kampinen’s federal tort claims are untimely and
therefore legally frivolous within the meaning of 28 U.S.C. §
1915(d).

CONCLUSION

Accordingly, Kampinen’s petition to proceed in forma
pauperis is denied and the Complaint is dismissed. Kampinen’s

motion for appointment of counsel is denied as moot.

George/M. Marovich

United States District Judge

DATED: Toad lL “Lee 7
(


a key part of the government's, waiver of sovereign immunity and
are no less stringent for pro se plaintiffs.” Moore v. United
States Postal Service, No. 95-1021, 1995 WL 632365, at *2 (7th
Cir. Oct. 26, 1995) (citing McNeil _v. United States, 508 U.S.
106, 113 (1993)).

Kampinen’s various tort claims stem from an incident
allegedly involving several United States Secret Service agents
and Chicago police officers which began on September 25, 1998 and
continued through September 28, 1998. Kampinen allegedly hand
delivered a claim to the proper government agency on September
25, 2000.% The Complaint states..that the claim form “was taken
by Mr. Gray, apparently an agent.of the USSS, who although he
took the document, refused to sign it, even though I did ask him
to sign my copy.” A form attached to the Complaint, dated
September 24, 2000, names the appropriate federal agency as the
“U.S. Treasury - U.S. Secret Service Washington DC (Individuals
of)”. The Complaint further avers that Kampinen received
“neither a denial nor an answer from this agency of the
government whom I served, timely. (See attached copy and date
noted on same) Because there hasbeen no response, I now begin
this action.” Plaintiff filed this Complaint on February 11,
2003.

A court must liberally construe the allegations of a pro se
Complaint. Haines v. Kerner, 404 U.S. 519, 520-521 (1972);
Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7th Cir. 1996). In
doing so, this Court is satisfied that Kampinen may be able to
show that she properly presented_her claim to a government agency
by delivering her claim to the United States Secret Service on
September 25, 2000. However, Kampinen has not pled facts that

3 Plaintiff filed a civil. rights action the same day,

based on the same incident, which is still pending in this Court.

3



RBI
. “

‘Minute Order Form (06/97)

\S VY United States District Court, Northern District of Illinois
4

i id i Sitti dge if Or
senor Magistrate Judge George M. Marovich than signed Judge
CASE NUMBER 03 C 1030 DATE 3/12/2003
CASE Kampinen vs. United States
TITLE

of the motion being presented.)

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION:

DOCKET ENTRY:

(1) a Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

Bg a Answer brief to motion due___. Reply toariswer brief due____.

(4) Oo Ruling/Hearing on setfor_ at.

(5) im Status hearing[held/continued to] [set for/re-set for] on setfor at

(6) Oo Pretrial conferencef{held/continued to] [set for/re-set for]on__setfor___—sat__.
(7) im Trial[set for/re-set for}on___at

(8) im (Bench/Jury trial] [Hearing] held/continued to... at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) OLocal Rule 41.1 OFRCP4i(a)(1) C)FRCP41(a)(2).
(10) Ml [Otherdocket entry] ENTER MEMORANDUM OPINION AND ORDER. Kampin

appointment of counsel is denied as moot.

dl!) f [For further detail see order attached to the original minute order.]

to proceed in forma pauperis is denied andthe complaint is dismissed. Kampinen’s motion for

en’s petition

No notices required, advised in open court.

No notic uired.
iotices require number of notices

Document
Number.

Notices mailed by judge’s staff.

Notified counsel by telephone.

Liha,

wv | Docketing to mail notices.
JY | Mail AO 450 form.

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MN
courtroom
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UNITED STATES..DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN..DIVISION

DIANNE KAMPINEN, )
)
Plaintiff, )
)
_

v. _03 € 1030

Judge George M. Marovich

UNITED STATES,
Defendants.

MEMORANDUM OPINION AND ORDER

Petitioner Dianne Kampinen (“Kampinen”) seeks leave to file
her complaint under the Federal Tort Claims Act, 28 U.S.C. §§
1346(b), 2671 et seq., against Defendant, United States, in forma
pauperis. Kampinen also seeks appointment of counsel. For the
reasons set forth below, this Court dismisses the Complaint
because Kampinen’s allegations are untimely and therefore legally

frivolous.

Under 28 U.S.C. § 1915, when determining whether petitioners
may proceed in forma pauperis, courts engage in a two-step
analysis. First, the court examines whether the petitioner has
sufficiently demonstrated that he is impoverished within the
meaning of the statute. 28 U.S.C. § 1915; Nietzke v. Williams,
490 U.S. 319, 324 (1989). Second, the court determines whether
the complaint is frivolous. Denton v. Hernandez, 540 U.S. 25, 31
(1992); Nietzke, 490 U.S. at 324... An action is frivolous, for
purposes of § 1915(d), if there is no arguable basis for relief
in law or in fact. Nietzke, 490_U.S. at 324-25.

As to the first prong, Kampinen has indicated that she is
unemployed and has no assets. She has indicated that her only

source of income is $117 per week. in unemployment wages and a



one-time gift of $1000. Accordingly, this Court concludes that
Kampinen meets the level of poverty necessary for in forma
pauperis status. However, under. the second prong, this Court
finds that the Complaint is legally frivolous because it is
barred by the Act’s statute of. limitations.

The Act imposes two time constraints for filing tort claims
against the United States. Miller v. United States, 741 F.2d
148, 150 (7th Cir. 1984). “First, a claimant must present a
claim to the appropriate federal. agency within two years of the
date of its accrual. Second, a plaintiff must file a legal
action, if at all, no more than..six months after the federal
agency mails its notice of final.denial of the claim.” Id.; 28
U.S.C. § 2401(b).1 “If a federal agency fails to finally dispose
of a properly made claim within six months of its presentation,
the claimant has the option to treat the inaction as a
constructive final denial.” Miller, 741 F.2d at 150; 28 U.S.C. §
2675(a).? This option does not.exist indefinitely, but must be
exercised within a reasonable time after the six month period

expires. Miller, 741 F.2d at 150. “These procedural hurdles are

! The statute reads, in relevant part: “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 claim accrues or unless action is begun within
six months after the date of mailing, by certified or registered
mail, of notice of final denial of the claim by the agency to
which it was presented.” 28 U.S.C. § 2401(b).

2 Section 2765(a) provides, in relevant part: “An action
shall not be instituted upon a claim against the United
States...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....”

2