The opinion of the court was delivered by: Hon. John E. Jones III
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
This matter is before the Court on the Report and Recommendation ("R&R") of Magistrate Judge J. Andrew Smyser (Doc. 31), filed on April 26, 2012 which recommends that we grant the United States of America's Motion to Dismiss (Doc. 12) for lack of subject matter jurisdiction based on Plaintiff's failure to exhaust his administrative remedies. Plaintiff Garland Miller ("Plaintiff") filed objections to the R&R (Docs. 33-34) to which the Defendant responded. (Doc. 37). Accordingly, this matter is ripe for our disposition. For the reasons set forth below, the Court will adopt the Magistrate Judge's R&R in its entirety, grant the United States' Motion, and close this case.
On April 15, 2011, Plaintiff, who was formerly confined as a prisoner
at the Allenwood Low Security Correctional Institution
("LSCI-Allenwood) filed the instant civil complaint.*fn1
Plaintiff asserts a claim against the United States of
America pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §
2671, alleging that he was injured due to the negligence of employees
of the United States. Specifically, Plaintiff claims that he was
injured when climbing down from the top bunk in his housing unit
because he was not provided with a ladder but was forced to use a
stool that was marked as "No Step." Plaintiff suffered a knee injury
and ultimately underwent a surgical procedure to correct a torn
meniscus in his knee. Plaintiff claims that despite being prescribed
Celebrex by his treating orthopedist, prison doctors would not give
him that drug.
On January 4, 2010, Plaintiff submitted an administrative claim to the Tort Claims Division of the Bureau of Prisons ("BOP"). Rather than fill out the pre-printed form, Plaintiff attached what is essentially a civil action complaint describing not only the bunk bed incident but also seeking recompense for a lengthy list of other physical conditions suffered by Plaintiff for which he was allegedly not being treated appropriately by BOP physicans. On May 4, 2010, the Northeast Regional Office of the BOP responded to the Plaintiff by letter, indicating that the office had received Plaintiff's administrative claim arising out of the incident, but that the claim was being rejected because it involved separate incidents and, pursuant to BOP policy, each incident must be filed separately for consideration. The letter indicated that Plaintiff could resubmit the claims but that each claim must be filed separately. Plaintiff never did so.*fn2 The filing of this action followed.
On October 31, 2011, the United States filed a Motion to Dismiss, or in the Alterative, for Summary Judgment. (Doc. 12). After the Motion was briefed, Magistrate Judge Smyser issued the instant R&R recommending that the Motion be granted and that this case be dismissed due to Plaintiff's failure to exhaust his administrative remedies.*fn3 As noted above, Plaintiff objects to the Magistrate Judge's recommendation, arguing that his analysis on the exhaustion of administrative remedies was incorrect. We shall now scrutinize the Plaintiff's objections.
When objections are filed to the report of a magistrate judge, the district court makes a de novo determination of those portions of the report or specified proposed findings or recommendations to which objections are made. 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 674-75 (1980). The court may accept, reject, or modify, in whole or in part, the magistrate judge's findings or recommendations. Id. Although the standard of review is de novo, 28 U.S.C. § 636(b)(1) permits whatever reliance the district court, in the exercise of sound discretion, chooses to place on a magistrate judge's proposed findings and recommendations. Raddatz, 447 U.S. at 674-75; see also Mathews v. Weber, 423 U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).
Magistrate Judge Smyser recommends that Plaintiff's action be dismissed because Plaintiff failed to exhaust his administrative tort claim prior to bringing his FTCA complaint in this Court. As such, the Magistrate Judge concludes that this Court lacks subject matter jurisdiction to hear the claim.*fn4 We agree.
As discussed above, Plaintiff did file an initial complaint to the Tort Claims Division of the BOP. However, and as previously noted, by letter dated May 4, 2010, the BOP's Northeast Regional Office rejected the claim and informed the Plaintiff that separate claims needed to be presented separately and that Plaintiff was permitted to re-submit his claims in the appropriate format. Again, Plaintiff never did so.
Plaintiff contends that his claim was exhausted administratively because the BOP did not take action on the claim after having it for six months. Thus, Plaintiff argues that, pursuant to 28 U.S.C. 2675(a), a final denial of his claim can be presumed due to the agency's ...