Miller v. United States

Filing 30

MEMORANDUM (Order to follow as separate docket entry) re 14 MOTION for Summary Judgment filed by United States.Signed by Honorable Malachy E Mannion on 11/6/14. (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s))(bs)

Page 1
Slip Copy, 2014 WL 2940454 (M.D.Pa.)
(Cite as: 2014 WL 2940454 (M.D.Pa.))

Only the Westlaw citation is currently available.
United States District Court,
M.D. Pennsylvania.
Corey ROBINSON, Plaintiff,
v.
UNITED STATES of America, Defendant.
Civil Action No. 3:13–CV–1106.
Signed June 30, 2014.
Corey Robinson, Waymart, PA, pro se.
Justin Blewitt, U.S. Attorney's Office, Scranton, PA, for
Defendant.
MEMORANDUM
EDWIN M. KOSIK, District Judge.
*1 Before the court are Plaintiff's Objections (Doc.
33) to the Report and Recommendation of Magistrate
Judge Martin C. Carlson dated May 21, 2014 (Doc. 32).
For the reasons which follow, we will adopt the Report
and Recommendation of the Magistrate Judge.
BACKGROUND
Plaintiff, Corey Robinson, an inmate confined at the
United States Penitentiary–Canaan, Waymart,
Pennsylvania, filed the instant action pursuant to the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2675, et.
seq. The basis of the action is a salmonella outbreak at the
prison. The Defendant, United States of America, filed a
Motion to Dismiss the Complaint (Doc. 21), alleging that
Plaintiff failed to exhaust the administrative tort claim
process set out in the FTCA. In response, Plaintiff set
forth his exhaustion efforts through the prison grievance
system (Docs.25–28).
On May 21, 2014, the Magistrate Judge issued a
Report and Recommendation (Doc 32), wherein he
recommended that the Motion to Dismiss be granted, but
without prejudice to the re-filing of a Complaint, if and
when Plaintiff completes the process of exhausting his

administrative tort claims. Specifically, the Magistrate
Judge found that while Plaintiff may have attempted to
satisfy the administrative exhaustion requirements through
the prison grievance system, he failed to exhaust his tort
claim under the process mandated under the FTCA. As the
Magistrate Judge points out, as a prerequisite to filing suit
under the FTCA, a claim must first be presented to the
appropriate federal agency. Moreover, the requirement
that the appropriate federal agency act on a claim before
suit can be brought is jurisdictional and can't be waived.
In his Objections, plaintiff discusses exhaustion of
administrative remedies as it relates to the prison
grievance system required under the Prison Litigation
Reform Act, 42 U.S.C. § 1997 e(a). Plaintiff also raises
the issue of unavailability of administrative remedies.
As discussed by the Magistrate Judge, there is a
distinction between the type of administrative exhaustion
of inmate grievances required by the Prison Litigation
Reform Act (“PLRA”) and the administration exhaustion
requirement mandated by the FTCA. Further, an inmate
may not rely upon the submission of prison grievances to
satisfy his separate and independent exhaustion
requirement under the FTCA. While Plaintiff asserts that
he has filed B.P. forms for the exhaustion of
administrative remedies under the prison grievance
system, he does not address the Defendant's representation
that he has failed to follow the exhaustion requirements of
the FTCA.
Because proof of exhaustion of prison grievances
does not satisfy the separate administrative exhaustion
requirements under the FTCA, we will adopt the Report
and Recommendation of the Magistrate Judge. The
Defendant's Motion to Dismiss (Doc. 21) will be granted
and the Plaintiff's Complaint will be dismissed without
prejudice so that he can re-file his Complaint as a new
action if and when he fully exhausts his administrative tort
claim under the FTCA. An appropriate Order will follow.
ORDER

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 2
Slip Copy, 2014 WL 2940454 (M.D.Pa.)
(Cite as: 2014 WL 2940454 (M.D.Pa.))

*2 AND NOW, THIS 30th DAY OF JUNE, 2014, IT
IS HEREBY ORDERED THAT:
(1) The Report and Recommendation of Magistrate Judge
Martin C. Carlson filed May 21, 2014 (Doc. 32) is
ADOPTED;
(2) The Defendant's Motion to Dismiss (Doc. 21) is
GRANTED;
(3) Plaintiff's Complaint is DISMISSED without
prejudice to re-file this Complaint if and when Plaintiff
fully exhausts his administrative tort claim under the
FTCA; and
(4) The Clerk of Court is directed to CLOSE this
case and to FORWARD a copy of this Memorandum and
Order to the Magistrate Judge.
REPORT AND RECOMMENDATION
MARTIN C. CARLSON, United States Magistrate Judge.
I. Statement of Facts and of the Case
The pro se plaintiff is a federal prisoner, who was
formerly housed at the United States Penitentiary–Canaan
in the summer of 2011. The plaintiff is currently suing the
United States, alleging that in June of 2011 the prison
served inmates chicken fajitas. (Doc. 1.) According to the
plaintiff, the chicken was bad, and was tainted with
salmonella bacteria. (Id.) Consequently, the plaintiff
contracted food poisoning, and suffered excruciating pain
and symptoms which included headaches, diarrhea,
abdominal pains, nausea, chills, vomiting, inability to eat
and profuse sweating. (Id.) Alleging negligence on the part
of the prison in the preparation and service of this food,
the plaintiff has brought this action seeking damages from
the United States, pursuant to the Federal Tort Claims Act,
28 U.S.C. § 2675, et seq.
On December 9, 2013, the defendant filed a motion to
dismiss this complaint, which we also construed as a
motion for summary judgment. (Doc. 21.) This motion
alleged that the plaintiff had failed to exhaust his
administrative remedies within the prison before filing this
lawsuit, something that prisoner plaintiffs are required by
law to do as a prerequisite to seeking relief in federal
court. In support of this motion, the defendant submitted
a declaration which attested that Robinson never filed an

administrative tort claim of the type prescribed by the
FTCA, a Form SF 95 or its equivalent. (Doc. 22–1.) For
his part, Robinson alleges that he attempted to satisfy this
administrative exhaustion requirements, but Robinson
describes exhaustion efforts through the prison grievance
system, a remedial system which is wholly separate from
the type of exhaustion process mandated under the FTCA
for tort claims. (Doc. 26.) On these facts, the defendant
has now moved to dismiss this complaint, citing the
plaintiffs failure to exhaust administrative remedies within
the prison system prior to filing this complaint. Such
administrative exhaustion is required by law before an
inmate may proceed into federal court. The parties have
fully briefed this motion, and this motion is, thus, ripe for
resolution.
For the reasons set forth below, it is recommended
that the motion to dismiss be granted, but without
prejudice to the re-filing of a complaint if and when the
plaintiff completes the process of exhausting his
administrative tort claims.
II. Discussion
A. The Parties's Burdens of Proof and Persuasion
1. Motion to Dismiss Rule 12(b)(1)
*3 The defendant moved to dismiss this FTCA claim
for failure to exhaust pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure. Rule 12(b)(1) permits
the dismissal of an action for “lack of subject matter
jurisdiction.” A Rule 12(b)(1) motion may be treated as
either a facial or factual challenge to the court's subject
matter jurisdiction. See Mortensen v. First Fed. Sav. and
Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977). In
reviewing a facial attack, the court must only consider the
allegations of the complaint and documents referenced
therein and attached thereto, in the light most favorable to
the plaintiff. See id., PBGC v. White, 998 F.2d 1192, 1196
(3d Cir.1993). In reviewing a factual attack, the court may
consider evidence outside the pleadings. See Gotha v.
United States, 115 F.3d 176, 178–79 (3d Cir.1997) (citing
Mortensen, 549 F.2d at 891). Gould Electronics Inc. v.
United States, 220 F.3d 169, 176 (3d Cir.2000) (footnote
omitted) holding modified on other grounds by Simon v.
United States, 341 F.3d 193 (3d Cir.2003).

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 3
Slip Copy, 2014 WL 2940454 (M.D.Pa.)
(Cite as: 2014 WL 2940454 (M.D.Pa.))

Here, the defendant's motion presents a factual attack
upon subject matter jurisdiction, arguing that this Court
lacks jurisdiction over this claim due to the plaintiff's
failure to exhaust his administrative remedies. When
presented with such a fact-bound jurisdictional challenge
are cautioned that:
A factual challenge contests the existence of subject
matter jurisdiction, apart from any pleadings. Id. In
reviewing a factual challenge, the court “is free to weigh
the evidence and satisfy itself as to the existence of its
power to hear the case,” even where disputed material
facts exist. Mortensen, 549 F.2d at 891. In a factual
challenge, the plaintiff has the burden of persuasion to
show that jurisdiction exists. Gould, 220 F.3d at 178;
Mortensen, 549 F.2d at 891. If the defendant presents
evidence contesting any allegations in the pleadings, the
presumption of truthfulness does not attach to the
plaintiff's allegations and the plaintiff may present facts
by affidavit or deposition or in an evidentiary hearing.
Gould, 220 F.3d at 177; Mortensen, 549 F.2d at 891,
893 n. 18. “[I]f there is a dispute of material fact, the
court must conduct a plenary trial on the contested facts
prior to making a jurisdictional determination.” Gould,
220 F.3d at 177.
Mover Packing Co. v. United States, 567 F.Supp.2d
737, 748 (E.D.Pa.2008).
2. Summary Judgment Motion–Rule 56
Moreover, to the extent that this motion presents
matters beyond the pleadings, in the form of competing
declarations by the defendant and plaintiff, we have also
previously placed the parties on notice that we may treat
this motion as a motion for summary judgment pursuant to
Rule 56 of the Federal Rules of Civil Procedure. Rule 56
provides that “[t]he court shall grant summary judgment if
the movant shows that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law.” Fed.R.Civ.P., Rule 56(a). Through
summary adjudication a court is empowered to dispose of
those claims that do not present a “genuine issue as to any
material fact,” Fed.R.Civ.P. 56, and for which a trial
would be “an empty and unnecessary formality.” Univac
Dental Co. v. Dentsply Int'l, Inc., No. 07–0493, 2010 U.S.

Dist. LEXIS 31615, at *4 (M.D.Pa. Mar. 31, 2010).
*4 The substantive law identifies which facts are material,
and “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505,
91 L.Ed.2d 202 (1986). A dispute about a material fact is
genuine only if there is a sufficient evidentiary basis that
would allow a reasonable fact finder to return a verdict for
the non-moving party. Id. at 248–49.
The moving party has the initial burden of identifying
evidence that it believes shows an absence of a genuine
issue of material fact. Conoshenti v. Pub. Serv. Elec. &
Gas Co., 364 F.3d 135, 145–46 (3d Cir.2004). Once the
moving party has shown that there is an absence of
evidence to support the nonmoving party's claims, “the
non-moving party must rebut the motion with facts in the
record and cannot rest solely on assertions made in the
pleadings, legal memoranda, or oral argument.” Berckeley
Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d
Cir.2006); accord Celotex Corp. v. Catrett, 477 U.S. 317,
324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the
non-moving party “fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the burden
at trial,” summary judgment is appropriate. Celotex, 477
U.S. at 322. Summary judgment is also appropriate if the
non-moving party provides merely colorable, conclusory,
or speculative evidence. Anderson, 477 U.S. at 249. There
must be more than a scintilla of evidence supporting the
nonmoving party and more than some metaphysical doubt
as to the material facts. Id. at 252; see also Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586,
106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In making this
determination, the court must “consider all evidence in the
light most favorable to the party opposing the motion.”
A.W. v. Jersey City Pub. Schs ., 486 F.3d 791, 794 (3d
Cir.2007).
Further, a party who seeks to resist a summary judgment
motion by citing to disputed material issues of fact must
show by competent evidence that such factual disputes
exist. In this regard, “only evidence which is admissible at
trial may be considered in ruling on a motion for summary
judgment.” Countryside Oil Co., Inc. v. Travelers Ins.

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 4
Slip Copy, 2014 WL 2940454 (M.D.Pa.)
(Cite as: 2014 WL 2940454 (M.D.Pa.))

Co., 928 F.Supp. 474, 482 (D.N.J.1995). Similarly, it is
well-settled that: “[o]ne cannot create an issue of fact
merely by ... denying averments ... without producing any
supporting evidence of the denials.” Thimons v. PNC
Bank, NA, 254 F. App'x 896, 899 (3d Cir.2007) (citation
omitted). Thus, “[w]hen a motion for summary judgment
is made and supported ..., an adverse party may not rest
upon mere allegations or denial.” Fireman's Ins. Co. of
Newark NJ v. DuFresne, 676 F.2d 965, 968 (3d Cir.1982),
see Sunshine Books, Ltd. v. Temple Univ., 697 F.2d 90, 96
(3d Cir.1982). “[A] mere denial is insufficient to raise a
disputed issue of fact, and an unsubstantiated doubt as to
the veracity of the opposing affidavit is also not
sufficient.” Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d
Cir.1969). Furthermore, “a party resisting a [Rule 56]
motion cannot expect to rely merely upon bare assertions,
conclusory allegations or suspicions.” Gans v. Mundy,
762 F.2d 338, 341 (3d Cir.1985) (citing Ness v. Marshall,
660 F.2d 517, 519 (3d Cir.1981)).
B. The FTCA's Administrative Exhaustion Requirement
*5 In this case it is alleged that the plaintiff did not
fully exhaust his administrative remedies before bringing
this FTCA action. The plaintiff's alleged failure to exhaust
these administrative remedies may have substantive
significance for the plaintiff since as a prerequisite to suit
under the FTCA, a claim must first be presented to the
federal agency and be denied by the agency, or be deemed
to be denied. Section 2675(a) of Title 28, United States
Code, provides in pertinent part:
An action shall not be instituted against the United
States for money damages for injury or loss of property
or personal injury ... unless the claimant shall have first
presented the claim to the appropriate Federal agency
and his claim shall have been finally denied by the
agency in writing and sent by certified or registered
mail. The failure of the agency to make final disposition
of a claim within six months after it is filed shall, at the
option of the claimant any time thereafter, be deemed a
final denial of the claim for purposes of this section ....
In general, the United States enjoys sovereign
immunity from suit unless it otherwise consents to be
sued. White–Squire v. U.S. Postal Serv., 592 F.3d 453,
456 (3d Cir.2010). The United States' “consent to be sued

must be ‘unequivocally expressed,’ and the terms of such
consent define the court's subject matter jurisdiction.” Id.
The Federal Tort Claims Act constitutes “a limited waiver
of the United States's sovereign immunity.” Id. The FTCA
provides that the United States shall be liable, to the same
extent as a private individual, “for injury or loss of
property, or personal injury or death caused by the
negligent or wrongful act or omission of any employee of
the Government while acting within the scope of his office
or employment [.]” 28 U.S.C. § 1346(b)(1); see also 28
U.S.C. § 2674. Therefore, prior to commencing an FTCA
action a plaintiff must comply with the procedural
prerequisites set forth by the FTCA. Such procedural
compliance is the price plaintiff must pay to take
advantage of the limited waiver of sovereign immunity
provided by the FTCA.
Thus, prior to commencing an FTCA action against
the United States in federal court, a plaintiff must “first
present[ ] the claim to the appropriate Federal agency” and
receive a final denial “by the agency in writing and sent by
certified or registered mail.” 28 U.S.C. § 2675(a). A claim
is considered to be presented when the federal agency
receives written notification of the alleged tortious
incident and the alleged injuries, together with a claim for
money damages in a sum certain, in the form prescribed
by federal regulations. 28 C.F.R. § 14.2(a). If the
receiving federal agency fails to make a final disposition
of the claim within six months from the time it is filed, that
failure is “deemed a final denial of the claim” for purposes
of commencing suit under the FTCA. 28 U.S.C. § 2675(a).
The Third Circuit has instructed us that “[i]n light of
the clear, mandatory language of the statute, and [the]
strict construction of the limited waiver of sovereign
immunity by the United States, ... the requirement that the
appropriate federal agency act on a claim before suit can
be brought is jurisdictional and cannot be waived.” Roma
v. United States, 344 F.3d 352, 362 (3d Cir.2003) (citing
Livera v. First Nat'1 Bank of New Jersey, 879 F.2d 1186,
1194 (3d Cir.1989)). The Supreme Court has likewise
succinctly explained that “[t]he FTCA bars claimants from
bringing suit in federal court until they have exhausted
their administrative remedies.” McNeil v. United States,
508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21
(1993). As a result, a district court may dismiss a claim

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 5
Slip Copy, 2014 WL 2940454 (M.D.Pa.)
(Cite as: 2014 WL 2940454 (M.D.Pa.))

brought under the FTCA for lack of subject matter
jurisdiction pursuant to Rule 12(b)(1) where the plaintiff
has not exhausted his administrative remedies prior to
filing suit. See, e.g., Abulkhair v. Bush, 413 F. App'x 502,
506 (3d Cir.2011); Accolla v. United States Gov't, 369 F.
App'x 408, 409–10 (3d Cir.2010) (finding the district
court properly dismissed FTCA claim where the plaintiff
filed federal suit prior to exhausting administrative
remedies).
*6 In this regard, it must be emphasized that full
administrative exhaustion is a jurisdictional prerequisite to
filing a lawsuit. Therefore, where an FTCA lawsuit is filed
before the exhaustion process is completed, we are
compelled to dismiss that action. Miller v. United States,
517 F. App'x 62, 63 (3d Cir.2013); Roma v. United States,
344 F.3d 352, 362 (3d Cir.2003). In short, given the
jurisdictional nature of this exhaustion requirement, when
an inmate files an FTCA lawsuit before he receives a final
denial of his administrative tort claim, “the District Court
[i]s without jurisdiction to rule on the FTCA claim[,] See
McNeil, 508 U.S. at 111–12, 113 S.Ct. 1980, 124 L.Ed.2d
21 (holding that a court is without jurisdiction to rule on
a prematurely filed action even if an agency denies the
related administrative claim soon after the federal lawsuit
is filed),” Accolla v. U.S. Gov't, 369 F. App'x 408, 410 (3d
Cir.2010), and the claim must be dismissed.
Moreover, caselaw also recognizes that there is a
fundamental distinction between the type of administrative
exhaustion of inmate grievances through a prison
grievance system that is required by the Prison Litigation
Reform Act of 1996 (the “PLRA”) 42 U.S.C. § 1997e(a),
before bringing a Bivens constitutional tort claim against
individuals, and the separate administrative exhaustion
requirement mandated by the FTCA before inmate may
pursue tort claims against the United States. West v.
Shultz, 1:CV–12–1004, 2014 WL 1668093, *6–9
(M.D.Pa. Apr.24, 2014). Given the existence of these two
separate administrative processes, and the very different
purposes served by these two parallel processes, an inmate
may not rely upon the submission of prison grievances to
satisfy his separate and independent exhaustion obligation
under the FTCA. As this Court has recently observed:
Because of the mandatory exhaustion procedures under

both the PLRA and the FTCA, and the separate
purposes of these procedures with respect to the
different claims, courts have consistently held that
fulfillment of one exhaustion requirement does not
satisfy the other. See Lambert v. United States, 198 F.
App'x 835, 840 (11th Cir.2006); Brockett v. Parks, 48
F. App'x 539, 541 (6th Cir.2002). This Court has also
made clear that the administrative exhaustion
requirements under the PLRA and the FTCA are
separate and distinct, and that each must be
independently followed in order for an inmate to
maintain Bivens and negligence claims in the same
action. See Williams v. Bledsoe, Civ. No.
3:CV–12–1235, 2013 WL 5522848 *19–20 (M.D.Pa.
Oct.3, 2013) (Caputo, J.); Lopez v. Brady, Civ. No.
4:CV–07–1126, 2008 WL 4415585, at *10
(M.D.Pa.Sept.25, 2008) (McClure, J.)
West v. Shultz, LCV–12–1004, 2014 WL 1668093,
*9 (M.D.Pa. Apr.24, 2014). See, e.g., Williams v. Bledsoe,
3:CV–12–1235, 2013 WL 5522848 (M.D.Pa. Oct.3,
2013) (“Because of the mandatory exhaustion procedures
under both the PLRA and the FTCA, and the separate
purposes of these procedures with respect to these
different claims, courts have consistently held that
fulfillment of one exhaustion requirement does not satisfy
the other.”); McKreith v. Endicott, Civ. A. No.
11–CV–105, 2013 WL 990836, at *4 (E.D.Ky. Mar.12,
2013) (“The fact that the administrative remedies filed by
[plaintiff] regarding his tort claim were somewhat related
to the allegations in his Bivens complaint against [the
defendant] does not cure his failure to properly exhaust his
administrative remedies.”); Gaughan v. U.S. Bureau of
Prisons, No. 02 C 0740, 2003 WL 1626674, at *2
(N.D.Ill.Mar.25, 2003) (“[A]nalysis of the case law
persuades the court that the different administrative
processes serve different functions and thus are not
interchangeable.”); Owusu v. Federal Bureau of Prisons,
No. 02 Civ.0915, 2003 WL, 68031, at *2 (S.D.N.Y.Jan.7,
2003) (“Here, while the plaintiff did fully exhaust the
available administrative remedies for his FTCA claim, he
did not do so for his Bivens claim under the PLRA. The
exhaustion procedures under the two statutes differ, and
the fulfillment of one does not constitute satisfaction of the
other.”); Hylton v. Federal Bureau of Prisons, No. CV
00–5747, 2002 WL 720605, at *2 (E.D.N.Y. March 11,

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 6
Slip Copy, 2014 WL 2940454 (M.D.Pa.)
(Cite as: 2014 WL 2940454 (M.D.Pa.))

2002) (finding that “it is entirely possible that [plaintiff]
exhausted his administrative remedies for purposes of the
FTCA without exhausting administrative remedies
pursuant to the PLRA for purposes of filing a Bivens
claim” because the plaintiff had failed to exhaust the
BOP's four-step grievance procedure); cf. Funches v.
Reish, No. 97 Civ. 7611, 1998 WL 695904, at *9
(S.D.N.Y. Oct. 5, 1998) (finding that a prisoner's FTCA
claim was exhausted but that his Bivens claim was not).
C. The Plaintiffs Current Complaint Should Be
Dismissed as Unexhausted But Without Prejudice to
Re-filing This Action
*7 These legal tenets defining the jurisdictional nature
of the FTCA's exhaustion requirement control here and
compel dismissal of this complaint since the evidence
shows that the defendant has never received a proper
administrative tort claim from the plaintiff of the type
required by the FTCA. Therefore, Robinson has not yet
begun, much less completed, the form of administrative
exhaustion mandated under by the FTCA. Moreover,
recognizing that the plaintiff bears the burden under the
FTCA of showing that he has filed proper administrative
claims with the appropriate administrative agency, Medina
v. City of Philadelphia, 219 Fed. Appx. 172 (3d Cir.2007)
(“Plaintiff carries the burden of proof to establish
presentment of her claim to HUD”); Livera v. First
National State Bank of New Jersey, 879 F.2d 1186, 1195
(3d Cir.1989), we find that Robinson has not carried his
burden of proof in this particular case. In this regard,
Robinson's response to this FTCA exhaustion argument
focuses almost exclusively upon his efforts at exhaustion
of prison grievances, and does not touch upon the FTCA's
separate exhaustion requirement in any persuasive or
compelling way. Since “[t]his Court has also made clear
that the administrative exhaustion requirements under the
PLRA and the FTCA are separate and distinct, and that
each must be independently followed,” West v. Shultz,
1:CV–12–1004, 2014 WL 1668093, *9 (M.D.Pa. Apr.24,
2014), proof of exhaustion of prison grievances simply
does not satisfy Robinson's separate administrative
exhaustion obligations under the FTCA. Therefore, it is
recommended that this complaint be dismissed without
prejudice to re-filing this action if, and when the plaintiff
can fully satisfy the FTCA's exhaustion requirement.
We recommend this course mindful of the fact that

pro se plaintiffs often should be afforded an opportunity
to amend a complaint before the complaint is dismissed in
its entirety, see Fletcher–Hardee Corp. v. Pote Concrete
Contractors, 482 F.3d 247, 253 (3d Cir.2007), unless
granting further leave to amend is not necessary in a case
such as this where amendment would be futile or result in
undue delay, Alston v. Parker, 363 F.3d 229, 235 (3d
Cir.2004).
Here, we conclude that this rule applies with
particular force and strongly favors dismissal of this
complaint without prejudice to the re-filing of this action
now that the plaintiff has satisfied the FTCA's exhaustion
requirement. In particular we note that it cannot be said
that the FTCA's statute of limitations would render this
course of action futile. Rather, it is well-settled that: “the
FTCA's statute of limitations is not jurisdictional, and thus
in appropriate circumstances the equitable tolling doctrine
can apply in actions under it. Hughes v. United States, 263
F.3d 272, 278 (3d Cir.2001); see Hedges v. United States,
404 F.3d 744, 748 (3d Cir.2005) (federal courts apply
equitable tolling to wide range of cases against the
Government, including FTCA claims).” Santos ex rel.
Beato v. United States, 559 F.3d 189, 194–95 (3d
Cir.2009).
*8 Further, in the related context of inmate litigation
under the Prison Litigation Reform Act, (PLRA), which
also imposes an administrative exhaustion requirement
upon prisoner-plaintiffs, it has been held that equitable
tolling of any statute of limitations is appropriate while an
inmate exhausts his administrative remedies. This
conclusion has been consistently reached by those
appellate courts which have addressed this question in
precedential opinions. See e.g., Messa v. Goord, 652 F.3d
305, 310 (2d Cir.2011); Brown v. Valoff, 422 F.3d 926,
942–43 (9th Cir.2005); Johnson v. Rivera, 272 F.3d 519,
522 (7th Cir.2001); Brown v. Morgan, 209 F.3d 595, 596
(6th Cir.2000). This view has also often been espoused by
the United States Court of Appeals for the Third Circuit,
albeit in non-precedential opinions, where the court of
appeals has held that: “[b]ecause exhaustion of prison
administrative remedies is mandatory under the Prison
Litigation Reform Act, the statute of limitations applicable
to § 1983 actions may be tolled while a prisoner
exhausts.” Thompson v. Pitkins, 514 F. Appx. 88, 90 (3d

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 7
Slip Copy, 2014 WL 2940454 (M.D.Pa.)
(Cite as: 2014 WL 2940454 (M.D.Pa.))

Cir.2013); Paluch v. Sec'y Pa. Dep't of Corr., 442 Fed.
Appx. 690, 694 (3d Cir.2011) (same). See e.g., Ballard v.
Williams, 3:10–CV–1456, 2010 WL 7809047 (M.D.Pa.
Dec.9, 2010) report and recommendation adopted,
3:10–CV–1456, 2011 WL 5089726 (M.D.Pa. Oct.25,
2011); Ozoroski v. Maue, No. Civ. A. No. 08–0082, 2009
WL 414272, at *7 (M.D.Pa. Feb.18, 2009); Carter v. Pa.
Dep't of Corrections, Civ. A. No. 08–0279, 2008 WL
5250433, at *11 (E.D.Pa. Dec.17, 2008) (“[T]he statute of
limitations begins to run only when [a] plaintiff has
exhausted his administrative remedies under the PLRA.”);
Cooper v. Beard, Civ. A. No. 06–0171, 2006 WL
3208783, at *8 (E.D.Pa. Nov.2, 2006) (“Because an
inmate would be placed in a situation where his suit would
either be barred from federal court for failure to exhaust
administrative remedies under the PLRA, or time-barred
because he had pursued those administrative remedies ...
the statute of limitations for an inmate's § 1983 claims are
tolled while he exhausts his administrative remedies.”).
We need not reach these statute of limitations issues
at present since we are dismissing this action on other,
exhaustion grounds. Suffice it to say that the FTCA's
statute of limitations may be equitably tolled, and that any
statute of limitations and equitable tolling analysis should
await the filing of a new and fully exhausted complaint.
Therefore, while we are compelled to dismiss the original
complaint as unexhausted, that dismissal should be
without prejudice to the re-filing of a complaint by the
plaintiff as a new action, if an when the plaintiff completes
the administrative agency exhaustion required by the
FTCA. Indeed, we note that, in a variety of factual
contexts, courts have expressly sanctioned dismissal of
FTCA actions as unexhausted without prejudice in order
to enable plaintiff's to perfect the exhaustion of their
administrative remedies. See e.g., Wadhwa v. Nicholson,
367 F. App'x 322, 325 (3d Cir.2010); McLaurin v. United
States, 392 F.3d 774, 782 (5th Cir.2004); Konarski v.
Brown, 03–5340, 2004 WL 1249346 (D.C.Cir. June 7,
2004); Bailey v. United States, 992 F.2d 1222 (10th
Cir.1993). In short, in this setting dismissal of an
unexhausted claim without prejudice is the preferred and
proper course of action.
III. Recommendation

*9 Accordingly, for the foregoing reasons, IT IS
RECOMMENDED that the defendant's Motion to Dismiss
(Doc. 21.), for failure to exhaust be GRANTED, and the
plaintiff's complaint be dismissed, without prejudice to the
re-filing of this complaint as a new action if an when the
plaintiff fully exhausts his administrative tort claim under
the FTCA. It is further recommended that the issue of the
potential bar of the statute of limitations, and equitable
tolling of the statute of limitations, be deferred for
consideration when, and if, the plaintiff re-files this
complaint.
The Parties are further placed on notice that pursuant
to Local Rule 72.3:
Any party may object to a magistrate judge's proposed
findings, recommendations or report addressing a
motion or matter described in 28 U.S.C. § 636(b)(1)(B)
or making a recommendation for the disposition of a
prisoner case or a habeas corpus petition within fourteen
(14) days after being served with a copy thereof. Such
party shall file with the clerk of court, and serve on the
magistrate judge and all parties, written objections
which shall specifically identify the portions of the
proposed findings, recommendations or report to which
objection is made and the basis for such objections. The
briefing requirements set forth in Local Rule 72.2 shall
apply. A judge shall make a de novo determination of
those portions of the report or specified proposed
findings or recommendations to which objection is
made and may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the
magistrate judge. The judge, however, need conduct a
new hearing only in his or her discretion or where
required by law, and may consider the record developed
before the magistrate judge, making his or her own
determination on the basis of that record. The judge
may also receive further evidence, recall witnesses or
recommit the matter to the magistrate judge with
instructions.
Submitted this 21st day of May, 2014.
M.D.Pa.,2014.
Robinson v. U.S.
Slip Copy, 2014 WL 2940454 (M.D.Pa.)

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 8
Slip Copy, 2014 WL 2940454 (M.D.Pa.)
(Cite as: 2014 WL 2940454 (M.D.Pa.))

END OF DOCUMENT

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.