FILED
United States Court of Appeals
Tenth Circuit
August 19, 2008
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
GARY L. GAINES,
Plaintiff-Appellant, No. 08-7030
v. (E.D. Oklahoma)
UNITED STATES MARSHALS (D.C. No. CIV. 06-083-SPS)
SERVICE; MUSKOGEE COUNTY
SHERIFF; OFFICE OF CHARLES
PEARSON,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before HENRY, Chief Judge, ANDERSON, and BALDOCK, Circuit Judges.
Gary L. Gaines, a state prisoner proceeding pro se, appeals the district
court’s dismissal of his complaint against the United States Marshal’s Service
(USMS) and the Sheriff of Muskogee County, Oklahoma. Pursuant to Rule 12(h)
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 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not binding precedent except under the doctrines of law of the case, res judicata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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
of the Federal Rules of Civil Procedure, the district court dismissed Mr. Gaines’s
complaint after finding it had not been timely filed, thereby depriving the court of
subject matter jurisdiction. We have jurisdiction under 28 U.S.C. § 1291 to
review the district court’s decision.
In February 2006, Mr. Gaines filed a complaint in federal district court
against the USMS and the Muskogee County Detention Center (MCDC), claiming
he had received inadequate medical care from the USMS in November 2002 when
it transported him to the MCDC, where he allegedly received inadequate medical
care from the sheriff’s department. Mr. Gaines had already filed an
administrative tort claim against the USMS, which was denied. The district court
dismissed Mr. Gaines’s claims against the MCDC, which is not a suable entity.
After Mr. Gaines amended his complaint to name the Sheriff of Muskogee County
as a defendant, the district court dismissed Mr. Gaines’s claims against the Sheriff
as well, correctly observing that any claims Mr. Gaines might have made against
the Sheriff under 42 U.S.C. § 1983 were time-barred by Oklahoma’s two-year
statute of limitations.
The district court also dismissed Mr. Gaines’s claims against the USMS,
which, like MCDC, is not a suable entity. The court informed Mr. Gaines that he
could amend the complaint to include the United States as a defendant, the proper
course under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., but
only if the action had been timely filed. See 28 U.S.C. § 2401(b) (“A tort claim
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against the United States shall be forever barred . . . unless action is begun within
six months after the date of mailing by certified or registered mail, of notice of
final denial of the claim by the agency to which it was presented.”) In this case,
the Clerk of the Court received the complaint via U.S. mail on February 27, 2006,
more than six months after August 22, 2005, when Mr. Gaines received notice
that his administrative claims against the USMS had been denied. The district
court directed Mr. Gaines to establish compliance with the “prison mailbox rule,”
whereby a prisoner may effect timely filing of legal documents through a prison
mail system by submitting a sworn, notarized statement that, among other things,
attests to the date that the prisoner deposited the documents with the system. See
Price v. Philpot, 420 F.3d 1158, 1164-65 (10th Cir. 2005). After reviewing Mr.
Gaines’s submissions, the district court determined that he had not complied with
the prison mailbox rule, and, therefore, that his filing was untimely. Mr. Gaines
timely appealed the court’s ruling.
We review de novo a district court’s determination that it lacks subject
matter jurisdiction. Erlandson v. Northglenn Mun. Court, 528 F.3d 785, 788
(10th Cir. 2008). After carefully examining the record and the district court’s
thorough order, we agree with the court’s reasoning and conclusion. Under the
prison mailbox rule, when an inmate does not have access to a legal mail system,
as was the case with Mr. Gaines, “[t]imely filing may be shown by a declaration
in compliance with 28 U.S.C. § 1746 or by a notarized statement, either of which
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must set forth the date of deposit and state that first-class postage has been
prepaid.” Price, 420 F.3d at 1164. Here it is undisputed that Mr. Gaines
submitted a proper declaration indicating that he gave a copy of the complaint to
prison officials on February 20, 2006, which was barely within the six month
window for filing under the FTCA. However, he neglected to state that first class
postage was prepaid, a requirement that our cases have rigidly enforced. See
Price, 420 F.3d at 1166 (holding that a complaint was untimely because the
plaintiff had failed to comply with the prison mailbox rule). Thus, Mr. Gaines’s
filing was untimely, and the district court did not err in determining that it lacked
subject matter jurisdiction. 1
Accordingly, we AFFIRM the district court’s decision.
Entered for the Court,
Robert H. Henry
Chief Circuit Judge
1
Because we hold that Mr. Gaines did not timely file his amended
complaint, we need not determine whether the new complaint related back to the
original complaint under Rule 15(c) of the Federal Rules of Civil Procedure.
Rule 15(c) requires, among other things, that the newly named party (here, the
United States) have had sufficient notice of the original institution of the action.
See F ED . R. C IV . P. 15(c)(1)(C). When the United States is added as a defendant,
as a general rule, the mailing of process to the United States Attorney or the
Attorney General of the United States will suffice to establish proper notice. See
F ED . R. C IV . P. 15(c)(2); Allgeier v. United States, 909 F.2d 869, 872 (6th Cir.
1990) (discussing notice to the United States in the context of Rule 15(c)). Mr.
Gaines, however, has made no effort to show that process was timely served to a
proper party, and the government has not conceded that Mr. Gaines’s amended
complaint would relate back.
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