Pedreira v. Federal Bureau of Prisons

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS ROBERT J. PEDREIRA, SR., * * Plaintiff, * * v. * Civil Action No. 18-cv-12535-IT * UNITED STATES FEDERAL BUREAU * OF PRISONS, et al., * * Defendants. * ORDER April 16, 2019 TALWANI, D.J. Now before the court is the Motion to Amend [#20] filed by pro se Plaintiff Robert J. Pedreira, Sr. For the reasons set forth below, the motion is denied without prejudice to Plaintiff commencing a new action to pursue the matter raised in the Motion to Amend. On December 10, 2018, Plaintiff, a former federal prisoner, filed a Complaint [#1] against the United States Federal Bureau of Prisons (“BOP”), the United States Public Health Services (“PHS”), and various medical and non-medical staff concerning conditions of confinement while he was incarcerated at FMC Devens. On January 7, 2019, the court directed the Clerk to issue summonses as to the individual litigants but dismissed the BOP and PHS from the action because it did not appear from the complaint that Perreira had exhausted his administrative remedies before commencing the action with regard to any claim under the Federal Tort Claims Act (“FTCA”). Order [#7] at 3-4.1 1 The court noted that if Plaintiff had exhausted his FTCA administrative remedies prior to commencing the action, he could seek leave to amend the complaint in accordance with Rule 15(a) to explicitly include his FTCA claim. Id. at 4. On April 4, 2019, Plaintiff filed a Motion to Amend [#20] to reinstate the BOP and PHS as defendants. He attached to the motion a letter dated March 18, 2019, from the BOP denying Plaintiff’s administrative tort claim that he received inadequate medical treatment while incarcerated at FMC Devens. The FTCA administrative remedy exhaustion requirement is jurisdictional and must be

completed before a plaintiff files an action under the FTCA in federal court. See McNeil v. United States, 508 U.S. 106, 111-12 (1993); Barrett ex rel. Estate of Barrett v. United States, 462 F.3d 28, 36 (1st Cir. 2006). Because this document confirms that Plaintiff had not exhausted his administrative remedies prior to filing the Complaint on December 10, 2018, the court DENIES the Motion to Amend. If Plaintiff seeks to bring an FTCA claim based on the administrative claim denied on March 18, 2019, he must do so in a separate action, rather than by amendment. If Plaintiff proceeds in this manner, he shall note on the civil case cover sheet that the new complaint is related to the pending complaint. IT IS SO ORDERED.

/s/ Indira Talwani United States District Judge