The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
CLERK SHALL ENTER JUDGMENT
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS W ITHOUT PREJUDICE FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (ECF No. 25)
Plaintiff Keenan Hurt ("Plaintiff") is a federal prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff consented to Magistrate Judge jurisdiction on August 24, 2010. (ECF No. 39.) Pending before the Court is a Motion to Dismiss filed by Defendant United States of America. (ECF No. 25.) Plaintiff filed an Opposition to the Motion on December 13, 2010 and Defendant filed a reply two days later.
This action proceeds on Plaintiff's September 28, 2009 First Amended Complaint. (ECF No. 14.) Plaintiff alleges that Defendant's negligence allowed a fellow inmate at the U.S. Penitentiary in Atwater, California, access to a weapon which was then used in an assault on Plaintiff.
On November 13, 2009, the Court dismissed Plaintiff's Equal Protection and Fourteenth Amendment claims brought under Bivens and directed that this action proceed against Defendant United States of America as an action under the Federal Tort Claims Act, 28 U.S.C. §§ 2671, et seq. ("FTCA").
In the instant Motion, Defendant argues that Plaintiff has failed to properly exhaust administrative remedies available to him as required under the FTCA. Defendant contends that Plaintiff filed his complaint with this Court only twenty-seven days after he filed his administrative tort claim with the Federal Bureau of Prisons and before the Bureau had an opportunity to act upon it.
Attachments to the Motion show that Plaintiff filed an administrative tort claim on March 23, 2009. (Def.'s Motion to Dismiss, Ex. A; ECF No. 25-2, p. 4.) The Federal Bureau of Prisons acknowledged the receipt of the claim and notified Plaintiff that it had up to six months to investigate and reply to the claim before litigation could be filed. (Def.'s Motion Ex. B; ECF No. 25-2, p. 29) Nevertheless, on April 21, 2009, less than a month after filing his administrative claim, Plaintiff filed this action with the Court. The Federal Bureau of Prisons subsequently, on October 30, 2009, denied the administrative claim (Def.'s Motion Ex. C; ECF No. 25-2, p. 31.)
In his opposition, Plaintiff seems to argue that because his original Complaint was dismissed and replaced on September 28, 2009 with an Amended Complaint, the Court should rely on the later document. Since it was filed after the six month time frame for administrative review, this Court has jurisdiction.
"The Prison Litigation Reform Act [("PLRA")] requires that a prisoner exhaust available administrative remedies before bringing a federal action concerning prison conditions." Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009) (citing 42 U.S.C. § 1997e(a)); Brown v. Valoff, 422 F.3d 926, 934 (9th Cir. 2005) (quoting Porter v. Nussle, 534 U.S. 516, 525 n.4 (2002)) (The PLRA "creates 'a general rule of exhaustion' for prisoner civil rights cases."). "'[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.'" Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002) (quoting Porter, 534 U.S. at 532); accord Roles v. Maddox, 439 F.3d 1016, 1018 (9th Cir.), cert. denied, 549 U.S. 905 (2006). The PLRA's "exhaustion requirement is mandatory." McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam); accord Jones v. Bock, 549 U.S. 199, 211 (2007) ("There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court."); see also Panaro v. City of North Las Vegas, 432 F.3d 949, 954 (9th Cir. 2005) (The PLRA "represents a Congressional judgment that the federal courts may not consider a prisoner's civil rights claim when a remedy was not sought first in an available administrative grievance procedure."). Even if the ...