Alexander v. U.S.

Full title: David Lee ALEXANDER, Plaintiff-Appellant, v. UNITED STATES of America…

Court: United States Court of Appeals, Ninth Circuit

Date published: Jun 21, 2001

12 F. App'x 555 (9th Cir. 2001)

Opinion

12 Fed.Appx. 555 (9th Cir. 2001) David Lee ALEXANDER, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. No. 00-16584. D.C. No. CV-98-01282-LDG. United States Court of Appeals, Ninth Circuit. June 21, 2001

Submitted June 11, 2001. ^*

* The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Federal prisoner brought action against government under Federal Tort Claims Act (FTCA). The United States District Court for the District of Nevada, Lloyd D. George, J., dismissed action for failure to state claim upon which relief could be granted. Prisoner appealed. The Court of Appeals held that failure to exhaust administrative remedies precluded FTCA claim.

Affirmed.

Appeal from the United States District Court for the District of Nevada Lloyd D. George, District Judge, Presiding.

Before O'SCANNLAIN, SILVERMAN, and GOULD, Circuit Judges.

MEMORANDUM ^**

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.

David Lee Alexander, a federal prisoner, appeals pro se the district court's dismissal of his claims under 28 U.S.C. § 2671, the Federal Tort Claims Act ("FTCA"), for failure to state a claim and lack of subject matter jurisdiction. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court's dismissal, Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295 (9th Cir.1998) (failure to state a claim); Ma v. Reno, 114 F.3d 128, 130 (9th Cir.1997) (lack of subject matter), and we affirm.

The district court properly dismissed Alexander's FTCA claim for lack of subject matter jurisdiction because he failed to exhaust his administrative remedies. See Brady v. United States, 211 F.3d 499, 502 (9th Cir.2000), cert. denied, 531 U.S. 1037, 121 S.Ct. 627, 148 L.Ed.2d 536 (2000) (stating that a claimant under the Federal Tort

Page 556.

Claims Act must comply with 28 U.S.C. § 2675(a) before a district court can exert jurisdiction over the claim). Thus, the district court properly dismissed Alexander's claim for failure to state a claim. See Fed.R.Civ.P. 12(b)(6).

The district court properly construed Alexander's complaint as asserting a Bivens claim. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 396-97, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (recognizing constitutional claims can be brought against federal officials acting under color of federal law).

The district court properly dismissed the Bivens claim as time barred. See Nev. Rev. Stat § 11.190(4)(e); W. Ctr. for Journalism v. Cederquist, 235 F.3d 1153, 1156 (9th Cir.2000) (per curiam).

AFFIRMED.