Williams v. Federal Bureau of Prisons

Filing 9

ORDER denying 8 Motion for Permission to Preserve the Right to Refile Federal Tort Claim Act (FTCA), by Magistrate Judge Boyd N. Boland on 4/23/2014.(slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00860-BNB
WESLEY BERNARD WILLIAMS,
Plaintiff,
v.
FEDERAL BUREAU OF PRISONS,
Defendant.

ORDER

Mr. Williams has filed a “Request for Permission to Preserve the Right to Refile
Federal Tort Claims Act [FTCA] Civil Action No: 14-cv-00860-BNB, Williams v. Federal
Bureau of Prisons, Until Adjudication of Civil Action No. 13-cv-03420-RBJ-BNB Under
Bivens” (ECF No. 8).
In the April 2, 2014 Order Directing Plaintiff to File Amended Complaint (ECF No.
5), the Court advised Mr. Williams of the pertinent law governing the filing of an FTCA
claim and a Bivens action arising out of the same subject matter. Plaintiff may choose
to dismiss this action against the United States without prejudice, pursuant to Fed. R.
Civ. P. 41(a). An action under the FTCA must be filed within six months after the
claimant receives notice of the agency’s final denial of an administrative claim, however.
28 U.S.C. § 2401(b). The agency’s final denial of Mr. Williams’ administrative claim is
dated March 6, 2014. (ECF No. 1, at 28).
Timeliness “is one of the conditions of the government's waiver of sovereign
immunity under the FTCA, and [a federal] court lacks subject matter jurisdiction to

proceed under the FTCA if a plaintiff fails to satisfy the FTCA's timing requirements set
forth in § 2401(b).” Franklin Sav. Corp. v. United States, 385 F.3d 1279, 1287 (10th Cir.
2004). As such, the Court cannot “preserve” Plaintiff’s right to file a future FTCA claim
against the United States if, at the time of filing, the action is time-barred. Accordingly, it
is
ORDERED that Plaintiff’s “Request for Permission . . .” (ECF No. 8) is DENIED.
It is
FURTHER ORDERED that if Mr. Williams intends to pursue an FTCA claim
against the United States in this action, he shall file his Amended Complaint, in
compliance with the April 2, 2014 Order, within thirty (30) days of the date of this
Order. No further extensions will be granted absent a showing of just cause.
DATED April 23, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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