George v. Austin A. Boynes & Gov't of the Virgin Islands

• Decision Date: 11 March 1977
• Docket Number: Civil No. 75/510
• Citation: 13 V.I. 582
• Parties: LOWELL GEORGE, Plaintiff v. AUSTIN A. BOYNES and GOVERNMENT OF THE VIRGIN ISLANDS, Defendants
• Court: U.S. District Court — Virgin Islands

13 V.I. 582

LOWELL GEORGE, Plaintiff v. AUSTIN A. BOYNES and GOVERNMENT OF THE VIRGIN ISLANDS, Defendants

Civil No. 75/510

District Court of the Virgin Islands Div. of St. Thomas and St. John

March 11, 1977

Action arising from alleged altercation between plaintiff and police officer. The District Court, Young, J., dismissed claim against government, without prejudice, for noncompliance with Tort Claims Act procedural requirements.

JAMES L. HYMES, III, ESQ. (GRUNERT, STOUT, HYMES & MAYER), St. Thomas, V.I., for plaintiff

RONALD T. MITCHELL, ESQ. (PALLME, ANDUZE, MITCHELL & DOW), St. Thomas, V.I., for Austin A. Boynes

PETER A. MARTIN, ESQ., Assistant Attorney General (Department of Law), St. Thomas, V.I., for Government of the V.I.

YOUNG, District Judge

This is an action both in tort and pursuant to 42 U.S.C. § 1983 for damages stemming from an alleged altercationbetween plaintiff, Lowell George, and defendant, Austin A. Boynes, a police officer employed by the Virgin Islands Department of Public Safety. Defendant, Government of the Virgin Islands, now moves to dismiss the instant action as the same pertains to it on the grounds that plaintiff has failed to comply with the provisions of 33 V.I.C. § 3410 with respect to the requirements as to the filing of a complaint against the Government and the verification thereof. Plaintiff has not filed any written opposition to said motion.

Specifically, the Government avers that plaintiff failed to file a claim or notice of intention with the Office of the Governor, Richards v. Government of the Virgin Islands, 10 V.I. 6 (D.C.V.I. 1973), 33 V.I.C. §§ 3409, 3410, and that plaintiff has failed to verify the complaint herein as mandated by 33 V.I.C. § 3410. Accordingly, the Government contends that a dismissal of the instant action, to the extent that it asserts a claim against the Government, is warranted.

The Court is in accord with the Government's position. Although the Court previously evinced considerable leniency with respect to the filing and verification requirements enunciated in the Tort Claims Act, Henry v. Government of the Virgin Islands, 10 V.I. 227 (D.C.V.I. 1973); Richards v. Government, supra; Simon v. Lovgren, 10 V.I. 302 (D.C.V.I. 1973), and permitted claimants to amend and supplement their pleadings to meet said statutory prerequisites, the Court prefaced the same upon the then relative newness of the Act and the unfamiliarity thereof to the Virgin Islands Bar. Richards v. Government, supra at p. 8; Henry v. Government, supra at p. 228. In permitting a late filing in Richards the Court went on to state:

It must be appreciated, however, that this holding is limited. Now that the Act has been judicially construed, claims should be filed inaccordance with the statutory requirements. In the future, the Court will be considerably more reluctant to find that misinterpretation of the Act is a reasonable excuse for failure to comply with its provisions. Richards v. Government, supra at p. 8.

Nearly four years have passed since the Court's holdings in Richards, Henry and Simon. No excuse can now be proffered for non-compliance with the clear and simple requirements set forth in the Tort Claims...