Ernest Priovolos v. FBI, et al

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: GREENAWAY JR., GREENBERG and ROTH, Circuit Judges. Total Pages: 5.

Case: 16-3148

Document: 003112592789

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Date Filed: 04/13/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-3148
___________
ERNEST PRIOVOLOS,

Appellant
v.
FEDERAL BUREAU OF INVESTIGATION;
LABORATORY EMPLOYEES JOHN DOE 1 AND JOHN DOE 2;
UNITED STATES OF AMERICA

____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 15-cv-00151)
District Judge: Honorable C. Darnell Jones, II
____________________________________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 23, 2016
Before: GREENAWAY, JR., GREENBERG and ROTH, Circuit Judges
(Opinion filed: April 13, 2017)
___________
OPINION*
___________
PER CURIAM

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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Ernest Priovolos, proceeding pro se, appeals an order of the United States District
Court for the Eastern District of Pennsylvania granting the United States’ motion to
dismiss, or in the alternative for summary judgment, in an action brought under the
Federal Tort Claims Act (FTCA). 28 U.S.C. § 2674. For the following reasons, we will
affirm.
In 1990, a jury in the Montgomery County Court of Common Pleas found
Priovolos guilty of third degree murder and related offenses. He was sentenced to an
aggregate term of 12 to 27 years of imprisonment. His attempts to obtain post-conviction
relief in state and federal court were unsuccessful. In 2012, Priovolos hired a forensics
expert, who, after reviewing FBI laboratory reports that were prepared prior to trial,
concluded that Priovolos should have been excluded as a source of blood and hair
samples recovered from the victim’s clothing.
Relying on the expert’s report, Priovolos filed a complaint under the FTCA
against the FBI and two of its laboratory employees. Priovolos alleged that the “falsified
laboratory reports” resulted in infliction of emotional distress and false imprisonment.
The District Court sua sponte dismissed the complaint pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii). Priovolos appealed, and we affirmed in part and vacated in part.
Priovolos v. FBI, 632 F. App’x 58 (3d Cir. 2015). In particular, we held that the FBI and
its employees were not proper defendants, and that Priovolos was not entitled to punitive
damages and injunctive relief under the FTCA. Id. at 59 n.1. But we concluded that
Priovolos could remedy the jurisdictional defect caused by failing to name the United
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States as a defendant, and that the District Court erred in concluding that the false
imprisonment claim was barred by Heck v. Humphrey, 512 U.S. 477 (1994). Id. at 6061.
On remand, Priovolos filed an amended complaint naming the United States as a
defendant. After being served with the amended complaint, the United States filed a
motion to dismiss, or in the alternative for summary judgment, arguing, inter alia, that the
District Court lacked subject matter jurisdiction because Priovolos failed to submit an
administrative tort claim to the FBI. The District Court agreed, stating that “it is apparent
from the record that [Priovolos] did not exhaust appropriate administrative remedies and
as such, is now barred from pursuing claims against the United States under the FTCA.”
Priovolos v. United States, 2016 WL 3551501, at *5 (E.D. Pa. June 30, 2016) (not
precedential). Priovolos appealed.1
The FTCA is the exclusive remedy against the United States for certain negligent
or wrongful acts of federal employees acting within the scope of their employment. See
28 U.S.C. § 2679(b)(1); Aliota v. Graham, 984 F.2d 1350, 1355 (3d Cir. 1993). The
FTCA “operates as a limited waiver” of the sovereign immunity of the United States and
should be “strictly construed.” White-Squire, 592 F.3d at 456 (citations omitted).
Federal courts cannot assume jurisdiction over FTCA claims until the plaintiff has first

We have jurisdiction pursuant to 28 U.S.C. § 1291. “When reviewing an order
dismissing a claim for lack of subject matter jurisdiction, we exercise plenary review over
legal conclusions and review findings of fact for clear error.” White-Squire v. U.S.
Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010).
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presented his claim to the appropriate federal agency and the claim has been denied. 28
U.S.C. § 2675(a); White-Squire, 592 F.3d at 457. This exhaustion requirement “is
jurisdictional and cannot be waived.” Roma v. United States, 344 F.3d 352, 362 (3d Cir.
2003) (citation omitted).
Priovolos’ amended complaint did not allege that he presented his claims to the
FBI. In addition, according to a sworn declaration from an FBI official who searched the
records system where all administrative claims submitted to the FBI are indexed,
Priovolos did not file any claim pertaining to the allegations in his complaint. See
Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977) (stating
that in evaluating a Rule 12(b)(1) motion that presents a factual challenge to subject
matter jurisdiction, the District Court is entitled to consider evidence outside the
complaint). Therefore, under the FTCA, the District Court lacked jurisdiction over his
federal tort claim. See McNeil v. United States, 508 U.S. 106, 113 (1993) (“The FTCA
bars claimants from bringing suit in federal court until they have exhausted their
administrative remedies.”). In his response to the motion to dismiss, Priovolos indicated
that he submitted an “administrative request for relief” to the FBI after filing his amended
complaint. But the subsequent filing and denial of a claim after suit has been commenced
does not overcome the failure to exhaust administrative remedies and premature filing of
the complaint. See id. at 111-12. Thus, Priovolos failed to exhaust administrative
remedies as required by the FTCA, and the District Court did not have subject matter
jurisdiction over his claims.
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For the foregoing reasons, we will affirm the District Court’s judgment.

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