George v. Boynes

• Decision Date: 11 March 1977
• Docket Number: Civ. A. No. 75/510.
• Citation: 435 F. Supp. 995
• Parties: Lowell GEORGE, Plaintiff, v. Austin A. BOYNES and Government of the Virgin Islands, Defendants.
• Court: U.S. District Court — Virgin Islands

435 F. Supp. 995

Lowell GEORGE, Plaintiff, v. Austin A. BOYNES and Government of the Virgin Islands, Defendants.

Civ. A. No. 75/510.

District Court, Virgin Islands, D. St. Thomas and St. John.

March 11, 1977.

James L. Hymes, III, Grunert, Stout, Hymes & Mayer, Charlotte Amalie, St. Thomas, U. S. V. I., for plaintiff.

Ronald T. Mitchell, Pallme, Anduze, Mitchell & Dow, Charlotte Amalie, St. Thomas, U. S. V. I., for defendant Austin A. Boynes.

Peter A. Martin, Asst. Atty. Gen., Dept. of Law, Charlotte Amalie, St. Thomas, U. S. V. I., for defendant Government of the Virgin Islands.

WARREN H. YOUNG, District Judge.

This is an action both in tort and pursuant to 42 U.S.C. § 1983 for damages stemming from an alleged altercation between 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 in accordance 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 Act. In waiving the immunity of the Government to tort actions, the Virgin Islands ...