Opinion
No. CIV-05-817-C.
November 30, 2005
ORDER
Before the Court are the Magistrate Judge's Report and Recommendation based on the initial review required by 28 U.S.C. § 636(b)(1)(B) (Dkt. No. 13) and Plaintiff's subsequent request to amend his Complaint and proposed Amended Complaint (Dkt. No. 14). As set out below, the Court adopts the Magistrate Judge's Report and Recommendation in part, denies Plaintiff's request to amend his Complaint, and dismisses the action.
In his Complaint (Dkt. No. 8), Plaintiff alleges that during transport he slipped and fell while deplaning a government airplane at the Federal Transfer Center in Oklahoma City, Oklahoma. Plaintiff has sued the United States, two unidentified U.S. Marshal pilots, and four unidentified U.S. Marshals, and asserts a Bivens claim for a Fourth Amendment violation and, seemingly, a claim under the Federal Tort Claims Act. (Id.) In the Report and Recommendation, the Magistrate Judge determined that Plaintiff fails to allege a constitutional violation and found that there is no claim that the individual Defendants were deliberately indifferent to a substantial risk of serious harm to Plaintiff. (Dkt. No. 13, at 5.) Moreover, Plaintiff fails to plead or provide evidence of exhaustion of his administrative remedies as required by 42 U.S.C. § 1997(e). (Id.) For these reasons, the Magistrate Judge recommended that Plaintiff'sBivens claim be dismissed. The Court agrees and determines that, as alleged, Plaintiff's proposed addition of Fifth and Eighth Amendment violations based on the same incident (Dkt. No. 14, at 1) does not remedy the defects identified or preclude dismissal. Therefore, Plaintiff's Bivens claim is dismissed.
See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Furthermore, the Court agrees that Plaintiff's Federal Tort Claims Act allegations are deficient. (See Dkt. No. 13, at 5.) Although Plaintiff attached to the Complaint a letter from the U.S. Department of Justice (Dkt. No. 8, Attachment C) stating that an administrative tort claim was filed, there is no allegation or evidence that the claim was fully adjudicated or denied. The Federal Tort Claims Act's exhaustion of administrative remedies requirement is a jurisdictional prerequisite and cannot be waived. Nero v. Cherokee Nation of Oklahoma, 892 F2d. 1457, 1463 (10th Cir. 1989) (affirming trial court's holding that plaintiffs' failure to exhaust created a jurisdictional bar under the Federal Tort Claims Act). Thus, Plaintiff's Federal Tort Claims Act claim will be dismissed. 28 U.S.C. § 2675(a); Three-M Enters., Inc. v. United States, 548 F.2d 293, 293 (10th Cir. 1977) (affirming dismissal of Federal Tort Claims Act suit for lack of jurisdiction because plaintiff had failed to exhaust administrative remedies).
The Magistrate Judge recommended that, based on Plaintiff's reference to such a claim and naming the United States as a defendant, the Plaintiff be granted leave to amend his Complaint to assert a proper Federal Tort Claims Act claim. (Dkt. No. 13, at 5.) In his proposed Amended Complaint, Plaintiff makes clear that he intends to assert a Federal Tort Claims Act claim. (Dkt. No. 14, at 2.) However, Plaintiff fails to provide any other details regarding his administrative claim. Because Plaintiff has not offered additional allegations or evidence to suggest that he has exhausted his administrative remedies, the Amended Complaint suffers from the same defects already identified. Therefore, Plaintiff is denied leave to file the Amended Complaint. See Lann v. Hill, 436 F.Supp. 463, 469 (W.D. Okla. 1977) (denying amendment to cure exhaustion allegations when proposed additions failed to correct deficiencies).
Accordingly, the Report and Recommendation of the Magistrate Judge is ADOPTED in part. Plaintiff's Bivens and Federal Tort Claims Act claims are dismissed without prejudice. Plaintiff's request to amend his Complaint (Dkt. No. 14) is DENIED.
IT IS SO ORDERED.