United States District Court, E.D. California
ORDER FOR PLAINTIFF TO SHOW CAUSE WHY THIS ACTION
SHOULD NOT BE DISMISSED FOR FAILING TO COMPLY WITH THE
ADMINISTRATIVE EXHAUSTION REQUIREMENT OF THE FEDERAL TORT
CLAIMS ACT PRIOR TO FILING SUIT (DOC. 1) 21-DAY
JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE
Moore-Bey, is a federal prisoner and seeks to bring claims
against the government according to the Federal Tort Claims
Federal Tort Claims Act provides federal tort liability based
on actions of officers or employees of any federal agency. 28
U.S.C. § 2671, et seq. Before a plaintiff may
proceed, he must exhaust the administrative remedies and
demonstrate exhaustion in his complaint. See Gillespie v.
Civiletti, 629 F.2d 637, 640 (9th Cir. 1980) (timely
filing of an administrative claim “should be
affirmatively alleged in the complaint” for an action
under the FTCA). Failure to do so is a jurisdictional bar.
See Brady v. United States, 211 F.3d 499, 502 (9th
Cir. 2000), cert. denied, 531 U.S. 1037, 121 S.Ct. 627 (2000)
(stating that a claimant under the FTCA must comply with 28
U.S.C. § 2675(a) before a district court can exert
jurisdiction over the claim). Exhaustion under the Prison
Litigation Reform Act does not satisfy the requirement to
exhaust under the FTCA. Compare 28 C.F.R.
§§ 542.13-15 (Bureau of Prisons administrative
grievance procedures) with 28 C.F.R. §§
543.30-32 (administrative exhaustion procedures for the FTCA
within the Bureau of Prisons). “Because the requirement
is jurisdictional, it ‘must be strictly adhered to.
This is particularly so since the FTCA waives sovereign
immunity. Any such waiver must be strictly construed in favor
of the United States.' ” Brady, 211 F.3d
at 502, quoting Jerves v. United States, 966 F.2d
517, 521 (9th Cir.1992).
Plaintiff alleges that he filed an administrative tort claim,
his compliance with the FTCA is not specifically evident from
the documents he attached in support of this assertion.
(See Doc. 1, Exh. C, pp. 47-53.) Plaintiff signed
the first page of his government claim form in March of 2016
(id., p. 48 (indiscernible whether dated March 10,
2016 or March 20, 2016)), but Plaintiff signed the last page
of his type-written allegations nearly a month later, on
April 17, 2016 (id., p. 51). Plaintiff provides no
explanation for the disparity in the dates.
that Plaintiff submitted that claim form in April 2016, there
is an unexplained lapse of seven months between that date and
the date on the letter from the Federal Bureau of Prisons
which acknowledged receipt of a claim from Plaintiff on
November 18, 2016. (Id., p. 52.) Further, while that
letter from the Federal Bureau of Prisons acknowledges
receipt of Plaintiff's “Claim for Damage, Injury or
Death (Standard Form 95), ” the March 16, 2017 letter
which Plaintiff attached as the final determination of his
tort claim indicates that it is in response to
Plaintiff's “Small Claims for Property Damage or
Loss (BP-A0943)” and explicitly states “You
cannot file suit in an appropriate U.S. District Court as
there is no judicial review for claims decided pursuant to 31
U.S.C. §3723.” (Id., p. 53.)
only explanation Plaintiff provides for the disparities in
his administrative tort claim are that his
“administrative remedies have been denied/and others
were never responded to by the Administration of the Bureau
of Prisons. There has (sic) been remedies that have been
misplaced by staff at this facility.” (Doc. 1, p. 4,
¶ 2.) However, the exhibit Plaintiff references in
support of this assertion contains copies of administrative
grievances Plaintiff filed at USP Atwater -- not with the
Bureau of Prisons. (Id., Exhibit A, pp. 10-17.)
Plaintiff likewise points to his USP Atwater grievances when
explaining why he cannot attach copies of his request for
administrative remedy and responses received. (Id.,
p. 4, ¶ H.) However, as noted above, exhaustion of a
prison's administrative remedies process does not satisfy
the requirement to exhaust under the FTCA. Compare
28 C.F.R. §§ 542.13-15 (Bureau of Prisons
administrative grievance procedures) with 28 C.F.R.
§§ 543.30-32 (administrative exhaustion procedures
for the FTCA within the Bureau of Prisons).
Court is unable to discern whether Plaintiff properly
complied with the FTCA to establish jurisdiction in this
action. Plaintiff must explain the discrepancies described
herein and show the basis upon which he asserts compliance
with the FTCA to be allowed to proceed in this action.
Likewise, he must explain why he should not be bound by the
determination that he has no right to bring this action, as
set forth in the denial letter attached to his complaint.
Plaintiff is ORDERED to show cause within 21 days
from the date of service of this order why this action should
not be dismissed because of his failure to comply with the
Federal Tort Claims Act prior to filing suit.
is warned that failure to timely respond to this order will
result in dismissal of this action for ...