F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 1 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MICHAEL S. STEVENS,
Plaintiff-Appellant,
v. No. 02-3181
(D.C. No. 00-CV-3258-JTM)
UNITED STATES OF AMERICA, (D. Kan.)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before LUCERO , McKAY , and BALDOCK , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff Michael S. Stevens, proceeding pro se, appeals from an order of
the district court dismissing this action, filed under the Federal Tort Claims Act
(FTCA), 28 U.S.C. §§ 1346(b), 2671-2680. We affirm.
Mr. Stevens is serving a life sentence for conspiracy to commit offenses
against the United States, unlawful transportation in interstate commerce of
explosives, unlawful possession of explosives with intent to kill, injure, and
unlawfully damage property, unlawful solicitation of another to engage in
unlawful conduct, and damage by explosives. On July 14, 1998, he was assaulted
by his cellmate. He timely filed his administrative claim on July 11, 2000. See
Dahl v. United States , 319 F.3d 1226, 1228 (10th Cir. 2003) (“tort claim must be
presented in writing to the appropriate Federal agency within two years after it
accrues”) (quotation omitted).
Mr. Stevens filed this action in federal district court July 13, 2000. He
alleged prison officials had placed him in a cell with an inmate who was on single
cell status because he was under investigation for killing another inmate a few
months earlier. As a result of that cellmate’s attempt to strangle him, Mr. Stevens
alleged he suffered serious and permanent damage to his spine. He further
contended that prison officials told other inmates he was a “baby-raper” in order
to incite them to do additional harm to him.
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Mr. Stevens’ administrative claim was denied because he had failed to
show any injury as a result of the alleged acts. The district court dismissed this
action holding that it lacked subject-matter jurisdiction because Mr. Stevens had
failed to exhaust his administrative remedies prior to commencing this action.
On appeal, Mr. Stevens argues that h e did exhaust his administrative
remedies and that further exhaustion was impossible and futile. He also asserts
he was denied due process and the right of access to the courts because prison
officials stole and waylaid his mail and inmate communication forms, stole his
legal materials, threatened him with serious harm if he mentioned the attempted
murder, and ignored his request for administrative remedy forms. Mr. Stevens
concludes he should be compensated for his injuries.
“We review a dismissal for lack of subject-matter jurisdiction de novo,
accepting the district court’s findings of jurisdictional facts unless they are clearly
erroneous.” Montoya v. Chao , 296 F.3d 952, 954-55 (10th Cir. 2002).
Mr. Stevens filed this action in district court prior to exhausting his
administrative remedies. His administrative claim was denied before the district
court dismissed this action. However, the court concluded that the fact that he
ultimately exhausted those remedies did not ripen his current action. We agree.
We have held that even the filing of an amended complaint, an action Mr. Stevens
did not take, does not serve to cure a prematurely filed original complaint. See
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Duplan v. Harper , 188 F.3d 1195, 1199 (10th Cir. 1999) (as general rule,
premature complaint cannot be cured through amendment, instead, plaintiff must
file new suit).
As “Congress intended to require complete exhaustion . . . before
invocation of the judicial process,” Mr. Stevens’ action was properly dismissed
for lack of subject matter jurisdiction. Id. (quotation omitted). The judgment of
the United States District Court for the District of Kansas is AFFIRMED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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