Houston v. U.S. Bureau of Prisons

Filing 6

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 8/26/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01978-BNB
RONNIE LEE HOUSTON,
Plaintiff,
v.
U.S. BUREAU OF PRISONS,
Defendant.

ORDER OF DISMISSAL

Plaintiff, Ronnie Lee Houston, is a prisoner in the custody of the Federal Bureau
of Prisons at the United States Penitentiary, Administrative Maximum, in Florence,
Colorado. Mr. Houston submitted pro se a Prisoner Complaint (ECF No. 1) for
damages pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b) and
2671-2680. He also submitted a Prisoner’s Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915 (ECF No. 3) and a motion titled “Motion to Propell [sic]
Institutional Finance Office to Produce Inmate Financial Records” (ECF No. 4). The
motion to propell (ECF No. 4) was denied as premature because Mr. Houston has failed
to provide written documentation demonstrating that the BOP denied him a certified
copy of his trust fund account statement for the 6-month period immediately preceding
this filing.
The Court reviewed the submitted documents and determined they were
deficient. On July 18, 2014, Magistrate Judge Boyd N. Boland entered an order (ECF
No. 5) directing Mr. Houston to cure certain enumerated deficiencies in the case within
thirty days if he wished to pursue his claims and show cause why the instant action

should not be dismissed.
The July 18 order pointed out that Mr. Houston had failed either to pay the
$400.00 filing fee or to submit a certified copy of his trust fund account statement for the
six-month period immediately preceding this filing. The July 18 order also pointed out
that Mr. Houston alleged he failed to exhaust available administrative remedies as to his
FTCA claims. See ECF No. 1 at 7.
Magistrate Judge Boland informed Mr. Houston that the FTCA requires a
claimant to exhaust administrative remedies prior to initiating an FTCA action in federal
court, a requirement that is jurisdictional and cannot be waived. Nero v. Cherokee
Nation of Oklahoma, 892 F.2d 1457, 1463 (10th Cir. 1989); see also Robinson v. United
States, No. 13-cv-02269-MSK-CBS, 2014 WL 2536828 (D. Colo. June 5, 2014)
(unpublished). He pointed out that a claimant must file an administrative tort claim with
the appropriate federal agency within two years of the date of the claim’s accrual before
initiating an FTCA action in federal district court. 28 U.S.C. §§ 2401(b), 2675(a); Pipkin
v. U.S. Postal Serv., 951 F.2d 272, 274 (10th Cir. 1991); see also Kendall v. Watkins,
998 F.2d 848, 852 (10th Cir. 1993). Therefore, Magistrate Judge Boland directed Mr.
Houston to show cause why the instant action should not be dismissed for failure to
exhaust administrative remedies before initiating the instant FTCA action in this Court.
The July 18 order warned Mr. Houston that if he failed to cure the designated
deficiencies and show cause as directed within thirty days why the instant action should
not be dismissed for failure to exhaust administrative remedies as to his FTCA claims,
the Prisoner Complaint and the action may be dismissed without further notice. Mr.
Houston has failed within the time allowed to cure the deficiencies, show cause as
directed, or otherwise communicate with the Court in any way.
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Accordingly, it is
ORDERED that the Prisoner Complaint and the action are dismissed without
prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for the failure of
Plaintiff, Ronnie Lee Houston, within the time allowed to cure the designated
deficiencies and show cause as directed why the instant action should not be dismissed
for failure to exhaust administrative remedies as to his claims asserted pursuant to the
Federal Tort Claims Act, and for his failure to prosecute. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED August 26, 2014, at Denver, Colorado.
BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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