Fiorito v. United States

U.S. District Court, District of Minnesota June 8, 2023

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Michael Fiorito, File No. 22-cv-3055 (ECT/DTS)

Plaintiff,

v. OPINION AND ORDER

United States of America,
Defendant.

Michael Fiorito, pro se.

Kristen Elise Rau, United States Attorney’s Office, Minneapolis, MN, for Defendant
United States of America.

Pro se Plaintiff Michael Fiorito is serving a 270-month sentence of imprisonment
for mail fraud and conspiracy to commit mail fraud. See USA v. Fiorito, No. 07-cr-212(1)
(PJS/JSM), ECF No. 436. In this case removed from Minnesota state court, Fiorito alleges
that Defendant (the “Government”) committed medical malpractice, negligence, and other
torts by failing to properly treat medical conditions from which Fiorito claims to have
suffered while he was incarcerated at the Federal Correctional Institution, Sandstone
(“FCI – Sandstone”), in Sandstone, Minnesota. Compl. [ECF No. 1-1] ¶¶ 20, 40.
Specifically, Fiorito alleges that the Government refused to provide him with appropriate
medical care for his “right great toe & knuckle” and right ankle. Id. ¶¶ 17; 23–37. Since
February 2022, Fiorito has initiated at least eighteen lawsuits here in the District of
Minnesota. See ECF No. 20 at 1–2 (listing case names and numbers).
Several motions require adjudication. The Government has filed a “Motion to
Screen and Dismiss Pursuant to

28 U.S.C. § 1915

 and/or Motion for Summary Judgment 
Pursuant to Rule 56.”  ECF No. 18.  Fiorito has filed several motions.  These include: his 

“Combined Motion to Compel Production of Documents and His First Objections to 
Defendants Motion to Dismiss and Memorandum in Support Of” [ECF No. 26]; “Plaintiffs 
[sic] Motion Objecting That an Expert Affidavit Is Needed in This Case” [ECF No. 34]; 
and “Plaintiffs [sic] Motion Requesting This Honorable Court Appoint Him Counsel for 
the Limited Purpose of Addressing the Conflict Between State Law and the Federal Rules 

of Civil Procedure” [ECF No. 35].  The Government’s motion will be granted because 
there is not subject-matter jurisdiction over this case.  Fiorito’s motions will be denied as 
moot.                                                                     
An individual injured by the negligent acts or omissions of a federal employee 
acting within the scope of his or her office or employment may only recover for the injuries 

by bringing a claim against the United States under the Federal Tort Claims Act (“FTCA”).

28 U.S.C. § 2679

(b)(1); Hinsley v. Standing Rock Child Protective Servs.,

516 F.3d 668

, 
671–72 (8th Cir. 2008) (citing

28 U.S.C. § 1346

(b)).  Before filing suit under the FTCA, 
however, “the [injured] claimant . . . [must] first present[ ] the claim to the appropriate 
Federal agency” and obtain a “final denial” of that claim by the agency.

28 U.S.C. § 2675

(a).  This presentment requirement “provides federal agencies a fair opportunity to 
meaningfully consider, ascertain, adjust, determine, compromise, deny, or settle FTCA 
claims prior to suit.”  Mader v. United States,

654 F.3d 794

, 800–01 (8th Cir. 2011) (en 
banc) (citation omitted).  To provide federal agencies with that “fair opportunity,” the 
claimant must give notice of the underlying incident in writing, with sufficient information 
for the agency to investigate, and indicate the amount of damages sought.

Id. at 800

, 803–
04 (citing

28 C.F.R. § 14.2

).  Presentment must occur “within two years after such claim 

accrues.”

28 U.S.C. § 2401

(b).  An FTCA plaintiff bears the burden of pleading and 
proving complete exhaustion of administrative remedies; without exhaustion according to 
these requirements, a federal court lacks subject-matter jurisdiction to consider the claim.  
McNeil  v.  United  States,

508 U.S. 106, 112

  (1993)  (“The  most  natural  reading  of 
[§ 2675(a)] indicates that Congress intended to require complete exhaustion of Executive 

remedies before invocation of the judicial process.”); Barber v. Simpson,

94 F.3d 648, at *2

  (8th  Cir.  1996)  (per  curiam)  (citations  omitted)  (unpublished  table  decision) 
(reaffirming that FTCA presentment requirement is jurisdictional); Bryant v. Dep’t of 
Army,

553 F. Supp. 2d 1098, 1104

 (D. Minn. 2008) (“Presentment of an administrative 
claim [under the FTCA] is jurisdictional. . . . The plaintiff has the burden of pleading and 

proving that he has satisfied the presentment requirement.” (citing Bellecourt v. United 
States,

994 F.2d 427, 430

 (8th Cir. 1993))).                              
Fiorito does not allege exhaustion in his Complaint or indicate that he fulfilled the 
presentment requirement.  See generally Compl.  Fiorito alleges only that he “notified staff 
about the pain and inability to sometimes walk ove[r] 2 dozen times” via “electronic emails, 

paper inmate request forms, and in-person please [sic] for help.”  Compl. ¶¶ 18, 33.  
Communications alerting prison staff to the need for medical treatment are not the same 
thing as presentment of a claim arising from the provision of allegedly tortious treatment 
(or non-treatment).  The communications Fiorito alleges do not meet the presentment 
requirement.  See A.M.L., by & through Losie v. United States,

61 F.4th 561, 564

 (8th Cir. 
2023).  Fiorito’s failure to plead factual allegations plausibly showing presentment is 
enough to justify dismissal.  There is more.  Though it was not its burden, the Government 

submitted  evidence  in  support  of  its  motion  confirming  that  Fiorito  presented  no 
administrative claim regarding his right toe.  A paralegal specialist employed by the U.S. 
Department of Justice testified that she searched a Bureau of Prisons (or “BOP”) database 
into which “[a]ll administrative tort claims submitted and received by the BOP are entered” 
and found 33 claims filed by Fiorito.  ECF No. 22 ¶¶ 4–5.  Fourteen of these claims related 

in whole or in part to FCI Sandstone, but none of those claims were based on right toe pain 
or right toe medical treatment.

Id.

 ¶¶ 6–7.  Fiorito’s Complaint will be dismissed for lack 
of subject-matter jurisdiction.1                                          
Fiorito has a fallback.  He argues that he should have an opportunity in this case to 
pursue discovery to establish subject-matter jurisdiction.  ECF No. 26 ¶¶ 7–8, 11.  The 

problem with this request is that evidence establishing the jurisdictional prerequisite—the 
presentment of a claim—is something Fiorito already should have.  This is not a situation 
where a plaintiff lacks access to information that may be probative of subject-matter 

                                                                     
1    The Government advances an alternative ground for dismissal—that Fiorito did not 
comply with Minnesota’s requirement that a person claiming medical malpractice submit 
an affidavit showing that a medical expert reviewed the facts of the case and corroborated 
the complaint’s allegations.

Minn. Stat. § 145.682

.  Though compliance with the statute’s 
requirements is a question of law for the court to determine, Sorenson v. St. Paul Ramsey 
Med. Ctr.,

444 N.W.2d 848

, 851–52 (Minn. Ct. App. 1989); Tousignant v. St. Louis Cnty.,

615 N.W.2d 53, 58

  (Minn.  2000);  Lake  Superior  Ctr.  Auth.  v.  Hammel,  Green  & 
Abrahamson, Inc.,

715 N.W.2d 458, 468

(Minn. Ct. App. 2006), the absence of subject-
matter jurisdiction makes that determination unnecessary here.
jurisdiction. If Fiorito complied with the presentment requirement, he should be able at
least to allege facts describing his compliance.2 Given the jurisdiction-based dismissal of
his Complaint, Fiorito’s motions will be denied as moot.

The Government seeks imposition of a filing restriction that would prohibit Fiorito
from “initiat[ing] matters in the District of Minnesota, or matters removed thereto, only
with the prior express written permission of the Chief Judge of the U.S. District for the
District of Minnesota.” ECF No. 20 at 12–13. The Government also asks that this
restriction include the condition that “[a]ny action initiated in, filed in, or removed to the

District of Minnesota without such prior express written permission would be subject to
immediate closure by the Clerk and dismissal without prejudice by the Court.” Id. at 13.
This request will be denied because granting it would be duplicative of a restriction Chief
Judge Schiltz ordered on April 12, 2023, following the commencement and removal of this
case. See Fiorito v. Southwick, No. 22-cv-2128 (PJS/TNL), ECF No. 48. That restriction

reads:
All future litigation commenced by Fiorito in this District, or
commenced by Fiorito in state court and thereafter removed to
this District, is subject to the following restrictions: a. The
litigation will be stayed automatically upon filing or upon
removal for review pursuant to 28 U.S.C. § 1915A. All
deadlines established by the Federal Rules of Civil Procedure
will be tolled for the duration of that stay. The Clerk of Court
is directed to return without filing any documents filed by
Fiorito during the pendency of the stay. b. At the time that he
commences a lawsuit to which 42 U.S.C. § 1997e(a) applies,
Fiorito must establish a prima facie case either that he has
2 Fiorito’s abuse-of-process claim is separately subject to dismissal because the
Government has not waived its sovereign immunity with respect to such claims.

18 U.S.C. § 2680

(h).                                                                
     exhausted  administrative  remedies  for  his  claims  or  that 
     administrative  remedies  were  unavailable  for  those  claims. 
     Fiorito may establish a prima facie case either by pleading     
     specific facts in his complaint or by attaching documentary     
     evidence to that complaint. Failure to establish the required   
     prima  facie  case  upon  filing  or  removal  is  grounds  for 
     administrative termination of the proceeding by the district    
     judge assigned to that proceeding. c. The stay that will apply  
     to  any  litigation  commenced  by  Fiorito  will  automatically 
     terminate upon dismissal of the action; upon issuance of a      
     Report and Recommendation pursuant to Rule 72(b)(1) of the      
     Federal Rules of Civil Procedure; or upon an order of the Court 
     directing defendants to file an answer or otherwise respond to  
     Fiorito’s pleading.                                             
Because Fiorito is already subject to a filing restriction, the Government’s request will be 
denied as moot.

ORDER

Based on the foregoing, and on all the files, records, and proceedings herein, IT IS 
ORDERED THAT:                                                             
1.   Defendant’s Motion to Screen and Dismiss Pursuant to

28 U.S.C. § 1915

 
and/or Motion for Summary Judgment Pursuant to Rule 56 [ECF No. 18] is GRANTED. 
2.   The  Complaint  is  DISMISSED  WITHOUT  PREJUDICE  for  lack  of 
subject-matter jurisdiction.                                              
3.   Fiorito’s Combined Motion to Compel Production of Documents and His 
First Objections to Defendants Motion to Dismiss and Memorandum in Support Of [ECF 
No. 26]; Motion Objecting That an Expert Affidavit Is Needed in This Case [ECF No. 34]; 
and Motion Requesting This Honorable Court Appoint Him Counsel for the Limited 
Purpose of Addressing the Conflict Between State Law and the Federal Rules of Civil 
Procedure [ECF No. 35] are DENIED as moot.                                
4.   The Government’s request for a filing restriction is DENIED as moot. 

       LET JUDGMENT BE ENTERED ACCORDINGLY.                          

Date:  June 8, 2023           s/ Eric C. Tostrud                          
                         Eric C. Tostrud                             
                         United States District Court

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Michael Fiorito, File No. 22-cv-3055 (ECT/DTS)

Plaintiff,

v. OPINION AND ORDER

United States of America,
Defendant.

Michael Fiorito, pro se.

Kristen Elise Rau, United States Attorney’s Office, Minneapolis, MN, for Defendant
United States of America.

28 U.S.C. § 1915

 and/or Motion for Summary Judgment 
Pursuant to Rule 56.”  ECF No. 18.  Fiorito has filed several motions.  These include: his 

“Combined Motion to Compel Production of Documents and His First Objections to 
Defendants Motion to Dismiss and Memorandum in Support Of” [ECF No. 26]; “Plaintiffs 
[sic] Motion Objecting That an Expert Affidavit Is Needed in This Case” [ECF No. 34]; 
and “Plaintiffs [sic] Motion Requesting This Honorable Court Appoint Him Counsel for 
the Limited Purpose of Addressing the Conflict Between State Law and the Federal Rules 

of Civil Procedure” [ECF No. 35].  The Government’s motion will be granted because 
there is not subject-matter jurisdiction over this case.  Fiorito’s motions will be denied as 
moot.                                                                     
An individual injured by the negligent acts or omissions of a federal employee 
acting within the scope of his or her office or employment may only recover for the injuries 

by bringing a claim against the United States under the Federal Tort Claims Act (“FTCA”).

28 U.S.C. § 2679

(b)(1); Hinsley v. Standing Rock Child Protective Servs.,

516 F.3d 668

, 
671–72 (8th Cir. 2008) (citing

28 U.S.C. § 1346

(b)).  Before filing suit under the FTCA, 
however, “the [injured] claimant . . . [must] first present[ ] the claim to the appropriate 
Federal agency” and obtain a “final denial” of that claim by the agency.

28 U.S.C. § 2675

(a).  This presentment requirement “provides federal agencies a fair opportunity to 
meaningfully consider, ascertain, adjust, determine, compromise, deny, or settle FTCA 
claims prior to suit.”  Mader v. United States,

654 F.3d 794

, 800–01 (8th Cir. 2011) (en 
banc) (citation omitted).  To provide federal agencies with that “fair opportunity,” the 
claimant must give notice of the underlying incident in writing, with sufficient information 
for the agency to investigate, and indicate the amount of damages sought.

Id. at 800

, 803–
04 (citing

28 C.F.R. § 14.2

).  Presentment must occur “within two years after such claim 

accrues.”

28 U.S.C. § 2401

(b).  An FTCA plaintiff bears the burden of pleading and 
proving complete exhaustion of administrative remedies; without exhaustion according to 
these requirements, a federal court lacks subject-matter jurisdiction to consider the claim.  
McNeil  v.  United  States,

508 U.S. 106, 112

  (1993)  (“The  most  natural  reading  of 
[§ 2675(a)] indicates that Congress intended to require complete exhaustion of Executive 

remedies before invocation of the judicial process.”); Barber v. Simpson,

94 F.3d 648, at *2

  (8th  Cir.  1996)  (per  curiam)  (citations  omitted)  (unpublished  table  decision) 
(reaffirming that FTCA presentment requirement is jurisdictional); Bryant v. Dep’t of 
Army,

553 F. Supp. 2d 1098, 1104

 (D. Minn. 2008) (“Presentment of an administrative 
claim [under the FTCA] is jurisdictional. . . . The plaintiff has the burden of pleading and 

proving that he has satisfied the presentment requirement.” (citing Bellecourt v. United 
States,

994 F.2d 427, 430

 (8th Cir. 1993))).                              
Fiorito does not allege exhaustion in his Complaint or indicate that he fulfilled the 
presentment requirement.  See generally Compl.  Fiorito alleges only that he “notified staff 
about the pain and inability to sometimes walk ove[r] 2 dozen times” via “electronic emails, 

paper inmate request forms, and in-person please [sic] for help.”  Compl. ¶¶ 18, 33.  
Communications alerting prison staff to the need for medical treatment are not the same 
thing as presentment of a claim arising from the provision of allegedly tortious treatment 
(or non-treatment).  The communications Fiorito alleges do not meet the presentment 
requirement.  See A.M.L., by & through Losie v. United States,

61 F.4th 561, 564

 (8th Cir. 
2023).  Fiorito’s failure to plead factual allegations plausibly showing presentment is 
enough to justify dismissal.  There is more.  Though it was not its burden, the Government 

submitted  evidence  in  support  of  its  motion  confirming  that  Fiorito  presented  no 
administrative claim regarding his right toe.  A paralegal specialist employed by the U.S. 
Department of Justice testified that she searched a Bureau of Prisons (or “BOP”) database 
into which “[a]ll administrative tort claims submitted and received by the BOP are entered” 
and found 33 claims filed by Fiorito.  ECF No. 22 ¶¶ 4–5.  Fourteen of these claims related 

in whole or in part to FCI Sandstone, but none of those claims were based on right toe pain 
or right toe medical treatment.

Id.

 ¶¶ 6–7.  Fiorito’s Complaint will be dismissed for lack 
of subject-matter jurisdiction.1                                          
Fiorito has a fallback.  He argues that he should have an opportunity in this case to 
pursue discovery to establish subject-matter jurisdiction.  ECF No. 26 ¶¶ 7–8, 11.  The 

problem with this request is that evidence establishing the jurisdictional prerequisite—the 
presentment of a claim—is something Fiorito already should have.  This is not a situation 
where a plaintiff lacks access to information that may be probative of subject-matter 

                                                                     
1    The Government advances an alternative ground for dismissal—that Fiorito did not 
comply with Minnesota’s requirement that a person claiming medical malpractice submit 
an affidavit showing that a medical expert reviewed the facts of the case and corroborated 
the complaint’s allegations.

Minn. Stat. § 145.682

.  Though compliance with the statute’s 
requirements is a question of law for the court to determine, Sorenson v. St. Paul Ramsey 
Med. Ctr.,

444 N.W.2d 848

, 851–52 (Minn. Ct. App. 1989); Tousignant v. St. Louis Cnty.,

615 N.W.2d 53, 58

  (Minn.  2000);  Lake  Superior  Ctr.  Auth.  v.  Hammel,  Green  & 
Abrahamson, Inc.,

715 N.W.2d 458, 468

18 U.S.C. § 2680

(h).                                                                
     exhausted  administrative  remedies  for  his  claims  or  that 
     administrative  remedies  were  unavailable  for  those  claims. 
     Fiorito may establish a prima facie case either by pleading     
     specific facts in his complaint or by attaching documentary     
     evidence to that complaint. Failure to establish the required   
     prima  facie  case  upon  filing  or  removal  is  grounds  for 
     administrative termination of the proceeding by the district    
     judge assigned to that proceeding. c. The stay that will apply  
     to  any  litigation  commenced  by  Fiorito  will  automatically 
     terminate upon dismissal of the action; upon issuance of a      
     Report and Recommendation pursuant to Rule 72(b)(1) of the      
     Federal Rules of Civil Procedure; or upon an order of the Court 
     directing defendants to file an answer or otherwise respond to  
     Fiorito’s pleading.                                             
Because Fiorito is already subject to a filing restriction, the Government’s request will be 
denied as moot.

ORDER

Based on the foregoing, and on all the files, records, and proceedings herein, IT IS 
ORDERED THAT:                                                             
1.   Defendant’s Motion to Screen and Dismiss Pursuant to

28 U.S.C. § 1915

 
and/or Motion for Summary Judgment Pursuant to Rule 56 [ECF No. 18] is GRANTED. 
2.   The  Complaint  is  DISMISSED  WITHOUT  PREJUDICE  for  lack  of 
subject-matter jurisdiction.                                              
3.   Fiorito’s Combined Motion to Compel Production of Documents and His 
First Objections to Defendants Motion to Dismiss and Memorandum in Support Of [ECF 
No. 26]; Motion Objecting That an Expert Affidavit Is Needed in This Case [ECF No. 34]; 
and Motion Requesting This Honorable Court Appoint Him Counsel for the Limited 
Purpose of Addressing the Conflict Between State Law and the Federal Rules of Civil 
Procedure [ECF No. 35] are DENIED as moot.                                
4.   The Government’s request for a filing restriction is DENIED as moot. 

       LET JUDGMENT BE ENTERED ACCORDINGLY.                          

Date:  June 8, 2023           s/ Eric C. Tostrud                          
                         Eric C. Tostrud                             
                         United States District Court

Reference

Status: Unknown