Opinion
Civil Action No. 14-cv-00860-BNB
04-23-2014
WESLEY BERNARD WILLIAMS, Plaintiff, v. FEDERAL BUREAU OF PRISONS, Defendant.
ORDER
Mr. Williams has filed a "Request for Permission to Preserve the Right to Refile Federal Tort Claims Act [FTCA] Civil Action No: 14-cv-00860-BNB, Williams v. Federal Bureau of Prisons, Until Adjudication of Civil Action No. 13-cv-03420-RBJ-BNB Under Bivens" (ECF No. 8).
In the April 2, 2014 Order Directing Plaintiff to File Amended Complaint (ECF No. 5), the Court advised Mr. Williams of the pertinent law governing the filing of an FTCA claim and a Bivens action arising out of the same subject matter. Plaintiff may choose to dismiss this action against the United States without prejudice, pursuant to Fed. R. Civ. P. 41(a). An action under the FTCA must be filed within six months after the claimant receives notice of the agency's final denial of an administrative claim, however. 28 U.S.C. § 2401(b). The agency's final denial of Mr. Williams' administrative claim is dated March 6, 2014. (ECF No. 1, at 28).
Timeliness "is one of the conditions of the government's waiver of sovereign immunity under the FTCA, and [a federal] court lacks subject matter jurisdiction to proceed under the FTCA if a plaintiff fails to satisfy the FTCA's timing requirements set forth in § 2401(b)." Franklin Sav. Corp. v. United States, 385 F.3d 1279, 1287 (10th Cir. 2004). As such, the Court cannot "preserve" Plaintiff's right to file a future FTCA claim against the United States if, at the time of filing, the action is time-barred. Accordingly, it is
ORDERED that Plaintiff's "Request for Permission . . ." (ECF No. 8) is DENIED. It is
FURTHER ORDERED that if Mr. Williams intends to pursue an FTCA claim against the United States in this action, he shall file his Amended Complaint, in compliance with the April 2, 2014 Order, within thirty (30) days of the date of this Order. No further extensions will be granted absent a showing of just cause.
DATED April 23, 2014, at Denver, Colorado.
BY THE COURT:
Boyd N. Boland
United States Magistrate Judge