BLD-119 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-2745
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GARLAND MILLER,
Appellant
v.
UNITED STATES OF AMERICA
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 1-11-cv-00720)
District Judge: Honorable John E. Jones III
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Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
February 14, 2013
Before: SCIRICA, HARDIMAN and GREENAWAY, JR., Circuit Judges
(Opinion filed April 8, 2013)
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OPINION
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PER CURIAM
Garland Miller, a former federal prisoner proceeding pro se, appeals from the
District Court’s order granting the Defendants’ motion to dismiss for lack of subject
matter jurisdiction. There being no substantial question presented on appeal, we will
summarily affirm. 3d Cir. LAR 27.4 and I.O.P. 10.6.
I.
Miller arrived at the Allenwood Low Security Correctional Institution (“LSCI-
Allenwood”) in April 2009. At LSCI-Allenwood, the inmates’ cubes contain bunk beds
without ladders. To access the upper bunk, it was necessary to use a stool marked “NO
STEP.” Miller’s request for a lower bunk, due to his foot deformity and inability to
climb, was denied. On April 17, 2009, Miller was climbing down from his upper bunk
when the stool marked “NO STEP” slipped, causing him to hit his left knee first on the
stool and then on the angle iron of the lower bunk. He immediately experienced pain and
swelling, and eventually had surgery to repair a torn meniscus in his left knee. He
claimed that the Bureau of Prisons (“the BOP”) would not give him the anti-
inflammatory drug Celebrex after his surgery, even though it was prescribed by his
physician.
Miller filed a complaint on April 15, 2011, asserting a claim for monetary
damages under the Federal Tort Claims Act (“FTCA”) against the BOP, two wardens,
and the United States of America (collectively, “the Defendants”). (Dkt. No. 1.) The
Defendants filed a motion to dismiss for lack of subject matter jurisdiction due to Miller’s
failure to exhaust his administrative remedies. (Dkt. No. 12.) By order entered June 6,
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2012, the District Court granted the Defendants’ motion. (Dkt. Nos. 38, 39.) Miller
timely appealed. (Dkt. No. 41.)
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
over an order dismissing a claim for lack of subject matter jurisdiction. White-Squire v.
U.S. Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010) (citations omitted). We may
summarily affirm the decision of the District Court if no substantial question is presented
on appeal. 3d Cir. LAR 27.4 and I.O.P. 10.6.
Miller claimed that his injuries were a result of the Defendants’ negligence and
that, pursuant to the FTCA, they were liable for monetary damages. The FTCA “operates
as a limited waiver” of the sovereign immunity of the United States and should be
“strictly construed.” White-Squire, 592 F.3d at 456 (citations omitted). A plaintiff must
exhaust all administrative remedies before bringing a claim under the FTCA. Id. at 457
(quoting 28 U.S.C. § 2675(a)). This requirement “is jurisdictional and cannot be
waived.” Roma v. United States, 344 F.3d 352, 362 (3d Cir. 2003) (citation omitted).
Miller filed an Administrative Tort Claim, dated January 4, 2010, raising
numerous claims, including the one pertaining to his left knee injury. The BOP notified
him that his Administrative Tort Claim was rejected because it involved several
incidents, and advised him that each incident needed to be filed separately. (Dkt. No. 1,
p. 4.) Miller never resubmitted his claims as advised. (Dkt. No. 8, p. 7.)
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An action may not be instituted against the United States for damages unless the
plaintiff presents his claim to the appropriate federal agency and receives a final denial in
writing by the agency. 28 U.S.C. § 2675(a). Because Miller failed to resubmit his
claims, he did not receive a final denial from the Bureau of Prisons. He therefore failed
to exhaust his administrative remedies prior to bringing his claim under the FTCA. See
Pinho v. Gonzales, 432 F.3d 193, 200 (3d Cir. 2005) (“Finality requires exhaustion of
administrative remedies.”); see also Roma, 344 F.3d at 362 (claim must be finally denied
prior to filing suit). The District Court properly granted the Government’s motion to
dismiss for lack of subject matter jurisdiction.
III.
There being no substantial question presented on appeal, we will summarily affirm
the District Court’s June 6, 2012 order.
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