Case: 13-15113   Date Filed: 10/01/2014   Page: 1 of 15


                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 13-15113
                       Non-Argument Calendar
                     ________________________

                  D.C. Docket No. 1:09-cv-03328-RLV



GERALD A. WEST,

                                                      Plaintiff-Appellant,

                                 versus

C. PEOPLES,
ROSA,
UNITED STATES OF AMERICA,

                                                      Defendants-Appellees.

                     ________________________

              Appeal from the United States District Court
                 for the Northern District of Georgia
                    ________________________



                           (October 1, 2014)
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Before TJOFLAT, WILSON, and JORDAN, Circuit Judges.

PER CURIAM:

       Gerald A. West, a federal prisoner proceeding pro se, appeals from the

district court’s order dismissing the action below based on West’s failure to file a

proposed pretrial order pursuant to a court-imposed deadline. West also appeals

from the district court’s earlier orders dismissing West’s Bivens 1 claims and

granting partial summary judgment against West on certain of his claims brought

pursuant to the Federal Tort Claims Act (FTCA). 2 After review of the parties’

briefs and the record on appeal, we affirm in part, and vacate and remand in part.

                                        DISCUSSION

       Before the district court, West alleged that, while incarcerated at United

States Penitentiary, Atlanta (USP Atlanta), he was assaulted by correction officer

Clarence Peoples, resulting in physical injury. West further contended that

correction officer Rosa Rivera “stood guard” while Peoples assaulted him. Based

on these allegations, West asserted two causes of action against Defendant-

Appellees Clarence Peoples, Rosa Rivera, and the United States of America

(collectively, “Appellees”): (1) a Bivens action against Peoples and Rivera for use

       1
         Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 

, 91 S.
Ct. 1999 (1971).
       2
           See Myers v. Sullivan, 

, 673 (11th Cir. 1990) (“Under general legal
principles, earlier interlocutory orders merge into the final judgment, and a party may appeal the
latter to assert error in the earlier interlocutory order.”).


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of excessive force by the correction officers against West; and (2) an action

pursuant to the FTCA against the United States.

      On motion by the Appellees, the district court dismissed West’s Bivens

claims for failure to exhaust the Federal Bureau of Prison’s (BOP) three-level

administrative remedy procedure. Thereafter, on Appellees’ partial motion for

summary judgment, the district court dismissed West’s FTCA claims arising out of

conduct by Rivera for lack of administrative exhaustion. Finally, the district court

dismissed West’s remaining FTCA claims, sua sponte, based on West’s failure to

file a proposed pretrial order by the court’s stated deadline. We address each of

the district court’s decisions in turn.

                      I.     Dismissal of West’s Bivens Claims

      We review de novo a district court’s dismissal of an action for failure to

exhaust available administrative remedies as required by 42 U.S.C. § 1997e(a) of

the Prison Litigation Reform Act of 1995 (PLRA). Johnson v. Meadows, 

, 1155 (11th Cir. 2005).

      The PLRA mandates that “[n]o action shall be brought with respect to prison

conditions under section 1983 of this title, or any other Federal law, by a prisoner

confined in any jail, prison, or other correctional facility until such administrative

remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); Jones v. Bock,

, 211, 

, 918–19 (2007) (“There is no question that


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exhaustion is mandatory under the PLRA and that unexhausted claims cannot be

brought in court.”). This exhaustion requirement “applies to all inmate suits about

prison life, whether they involve general circumstances or particular episodes, and

whether they allege excessive force or some other wrong.” Porter v. Nussle, 

, 532, 

, 992 (2002). Thus, § 1997e(a) “clearly applies” to

Bivens claims. Accord Alexander v. Hawk, 

, 1324 (11th Cir. 1998).

      “[T]he PLRA exhaustion requirement requires proper exhaustion.”

Woodford v. Ngo, 

, 93, 

, 2387 (2006). “[T]o properly

exhaust administrative remedies prisoners must ‘complete the administrative

review process in accordance with the applicable procedural rules,’ rules that are

defined not by the PLRA, but by the prison grievance process itself.” 

, 127 S. Ct. at 922 (citation omitted) (quoting 

,

126 S. Ct. at 2384). Accordingly, to properly exhaust available administrative

remedies pursuant to the PLRA, compliance with the applicable prison grievance

process is required. See id. at 

–23.

      At the time of West’s administrative complaint, West was a federal prisoner

subject to the grievance process delineated by the BOP. The BOP maintains a

multi-tiered administrative grievance process. See 28 C.F.R. §§ 542.10 et seq. An

inmate must first present his or her complaint or other issue of concern to prison

staff. 

If the matter cannot be resolved informally at the staff level,


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the inmate can submit a formal, written Request for Administrative Remedy (form

BP-9) to the warden. 

If the inmate is not satisfied with the

warden’s response, he or she may next submit an Administrative Remedy Appeal

(form BP-10) to the appropriate regional director. 

Where the

inmate is not satisfied with the regional director’s response, he or she may appeal

to the General Counsel at BOP’s Central Office (form BP-11).3 

Counsel is the final level of administrative review.

       On appeal, West contends that he exhausted all available administrative

remedies prior to asserting his Bivens claims in the district court. Specifically,

West alleges that he presented his claim about Peoples’s and Rivera’s conduct to

the General Counsel for the BOP, the final level in the administrative-remedy

process. Further, to the extent that he did not properly exhaust his administrative

remedies, West argues that prison officials obstructed his attempts to “properly

file[] his administrative remedies.” Appellees, on the other hand, contend that

West did not “properly exhaust” his administrative remedies as required by the

PLRA because he did not adhere to the BOP’s grievance process.

       Contrary to West’s contentions, the record on appeal demonstrates that West

did not complete the administrative review process in accordance with the


       3
         Furthermore, at each formal level,“[i]f the inmate does not receive a response within the
time allotted for reply, including extension, the inmate may consider the absence of a response to
be a denial at that level.” 28 C.F.R. § 542.18.
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applicable procedural rules. See 

, 127 S. Ct. at 922–23. The

record indicates that West filed an administrative remedy appeal with the Central

Office prior to filing any administrative remedy appeal with the appropriate

regional director. See 28 C.F.R. § 542.15(a). That appeal was rejected by the

Central Office with instructions to West on how he could correct the deficiencies

in his administrative appeal. West then filed an administrative remedy appeal with

a regional director and received a response thereto; however, West did not appeal

the regional director’s response to the General Counsel and, in not doing so, failed

to complete the administrative review process.4

       For these reasons, we conclude that the district court did not err in

dismissing West’s Bivens claims for failure to properly exhaust all available

administrative remedies.

            II.     Partial Summary Judgment on West’s FTCA Claims

       This Court reviews a district court’s grant of summary judgment de novo,

“applying the same legal standards as the district court, and construing the facts

and drawing all reasonable inferences therefrom in the light most favorable to the

non-moving party.” Centurion Air Cargo, Inc. v. United Parcel Serv. Co., 

, 1149 (11th Cir. 2005).


       4
          As to West’s assertions that prison officials obstructed his efforts to exhaust his
administrative remedies, given the multiple grievances filed by West with both the regional
director and the General Counsel, the record does not support such a conclusion.
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      The FTCA is a limited waiver of the sovereign immunity of the United

States government. See Suarez v. United States, 

, 1065 (11th Cir.

1994) (per curiam). Specifically, the FTCA gives district courts jurisdiction over

civil actions against the United States for “personal injury or death caused by the

negligent or wrongful act or omission of any employee of the Government while

acting within the scope of his office or employment,” if a private person would be

liable to the claimant for the same. 28 U.S.C. § 1346(b)(1); see also Turner ex rel.

Turner v. United States, 

, 1200 (11th Cir. 2008). This specific,

statutory exception to sovereign immunity is strictly construed. See 

.

      To this end, a district court only has jurisdiction over a claim brought under

the FTCA if the plaintiff has first met the requirements of 28 U.S.C. § 2675(a).

Bush v. United States, 

, 494 (11th Cir. 1983). Specifically, a plaintiff

is prohibited from bringing claims against the United States under the FTCA

“unless the claimant shall have first presented the claim to the appropriate Federal

agency and his claim shall have been finally denied by the agency.” 28 U.S.C. §

2675(a). In order to properly present a tort claim to an administrative agency, a

plaintiff must file an administrative claim that provides: (1) written notice of the

tort claim sufficient to enable the appropriate agency to investigate; and (2) a sum




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certain as to the value of the claim. Burchfield v. United States, 

,

1255 (11th Cir. 1999).

       The requisite written notice is “minimal.” Id.; see also Adams v. United

States, 

, 289 (5th Cir. 1980) (“Congress intended the section 2675

requirement of presenting notice to be construed in light of the notice traditionally

given to a municipality by a plaintiff who was allegedly injured by a municipality’s

negligence. Congress deemed this minimal notice sufficient to inform the relevant

agency of the existence of a claim.” (citation omitted)).5 A claimant is required to

give an agency “only enough information to allow the agency to ‘begin its own

investigation’ of the alleged events and explore the possibility of settlement.”

(quoting 

). While the

claimant must apprise the government of its potential liability, see 

, the claimant is “not require[d] . . . to provide the agency with a preview of

his or her lawsuit by reciting every possible theory of recovery or every factual

detail that might be relevant,” 

(citation omitted).

       The parties dispute the implications of West’s failure to specifically name

Rivera or describe her involvement in the alleged assault in West’s administrative

claim to the BOP. In granting Appellees’ motion for partial summary judgment,


       5
          In Bonner v. City of Prichard, 

(11th Cir. 1981) (en banc), this court
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981. 

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the district court found that West’s administrative tort claim did not give written

notice to Appellees of any wrongdoing by Rivera and, as such, West did not

exhaust his administrative remedies as to Rivera. On appeal, West argues that his

omission of Rivera from his administrative tort claim does not render inadequate

his exhaustion of administrative remedies pursuant to § 2675. Appellees counter

that West’s failure to identify or mention Rivera did not put the United States on

notice of its potential liability on this ground, and, as such, West is prohibited from

asserting any tort claims arising out of the conduct of Rivera. We disagree.

      Here, the Standard Form 95 (SF-95) submitted by West to the BOP was not

lacking in detail. See 28 C.F.R. § 14.2(a). West’s SF-95 included a sum certain as

to the value of his claim. West’s SF-95 also included a full description of the

“essential aspects” of the alleged assault, including the approximate date and

location of the incident, the name of the alleged assaulting officer, and the

surrounding circumstances. See 

. In short, West’s

SF-95 provided sufficient information to enable the BOP to investigate his claim.

Cf. Tidd v. United States, 

, 1568 (11th Cir. 1986) (concluding

claimant did not satisfy requirements of § 2675 where claimant provided only her

own name and the general nature of her alleged injury).

      Indeed, the details of Rivera’s alleged involvement are “so closely related to

the essential material contained in [West’s] claim” that they would have, and did,


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come to light during the BOP’s investigation of West’s claim. See 

. In response to West’s administrative tort claim, the BOP stated that

West was “moved to another cell by [Peoples] and another,” the implication being

that, through its investigation of West’s claim, the BOP was aware of another

officer’s involvement in or presence during the alleged assault. 6 A reasonable

person would next inquire as to Rivera’s involvement and examine any potential

liability on the part of the United States based thereon. Appellees “cannot use an

overly technical reading of the language of [West’s] claim as a reason to turn a

blind eye to facts that [became] obvious when [they] investigate[d] the alleged

events.” 

administrative tort claim did not contain every factual detail

relied on by West in the district court, it is difficult to suppose what details West

could have included in his SF-95 to allow the BOP to conduct a more detailed

investigation. His administrative claim put the United States on notice of West’s

theory of recovery and provided it with sufficient information to investigate the

events alleged. West’s omission of Rivera’s conduct did not prevent West from

satisfying the minimal notice requirements of § 2675(a) such that Appellees were




       6
          Appellants’ lack-of-notice argument is further called into question by the incident
report prepared by Peoples subsequent to the alleged assault in which Peoples stated that “West
was cuffed by Officer R. Rosa and myself.”
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entitled to judgment as a matter of law. Accordingly, the district court erred in

dismissing West’s FTCA claims arising out of Rivera’s conduct on such grounds.

                III.    Dismissal of West’s Remaining FTCA Claims

       We review a district court’s dismissal of an action for failure to comply with

the rules of court for abuse of discretion. Betty K Agencies, Ltd. v. M/V Monada,

, 1337 (11th Cir. 2005).

       The district court did not specify the authority on which it relied when it sua

sponte dismissed West’s action. Still, it is well-established that a district court has

the power to manage its own docket, which includes the inherent power to dismiss

an action for failure to prosecute or for failure to obey a court order. Burden v.

Yates, 

, 505 (5th Cir. Unit B May 1981). A district court has similar

authority under Federal Rule of Civil Procedure 41(b). 7 Kilgo v. Ricks, 

, 192 (11th Cir. 1993). Difficulty arises here because the district court’s

dismissal, while made without prejudice, has the effect of precluding West from

refiling his FTCA claims due to the running of the Act’s statute of limitations.

       “It is undisputed that under [the FTCA], a tort claim must be presented to the

appropriate federal agency within two years after the claim accrues and the lawsuit

must be commenced within six months after the receipt of a final agency decision.”

       7
         See also Betty K Agencies, 

(“Although the plain language of Rule
41(b) suggests that a court may act pursuant to that Rule only when dismissing upon the motion
of the defendant, and acts only on its inherent authority when dismissing sua sponte, many of our
decisions elide this neat distinction.”).
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Phillips v. United States, 

, 1317 (11th Cir. 2001) (emphasis in

original); see also 28 U.S.C. § 2401(b). The BOP administratively denied West’s

tort claim on May 22, 2009. The FTCA’s strict limitation period prevents or

arguably may prevent West from refiling his action. Under these circumstances,

the district court’s dismissal is “tantamount to a dismissal with prejudice.”

.

      Dismissal of a case with prejudice is considered “a sanction of last resort,

applicable only in extreme circumstances.” Jones v. Graham, 

, 1458

(11th Cir. 1983) (per curiam) (internal quotation marks omitted). A district court

may only properly impose dismissal with prejudice when: “(1) a party engages in a

clear pattern of delay or willful contempt (contumacious conduct); and (2) the

district court specifically finds that lesser sanctions would not suffice.” Betty K

Agencies, 

–38 (internal quotation marks omitted).

      In considering the first prong, West argues that he was not aware of the

district court’s order directing him to file a proposed pretrial order by September

17, 2013. West contends that, due to delays or deficiencies in the prison’s mail

system, he did not receive any notification of the deadline and so dismissal based

on his failure to file a proposed pretrial order is improper. Appellees respond that

any lesser sanction would not serve the interests of justice in light of West’s

“pattern” of dilatory tactics.


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        Contrary to Appellees’ contentions, the record falls short of demonstrating

that West has engaged in a pattern of clear delay or willful contempt. The initial

deadline for pretrial order, per the local rules, was August 19, 2012. A pretrial

order was not filed by that date; however, as the district court noted, “there were

other issues that were addressed in the meantime.” As such, on January 8, 2013,

the district court directed counsel for both parties to confer and to submit a

proposed consolidated pretrial order by February 8, 2013. After a series of joint

motions by the parties, the deadline was ultimately extended to September 17,

2013.

        To be sure, West missed this deadline; but the record is devoid of evidence

of any prolonged indifference on his part during the life of this litigation. See

Cohen v. Carnival Cruise Lines, Inc., 

, 925–26 (11th Cir. 1986) (per

curiam). The only evidence of an alleged pattern of dilatory tactics is West’s filing

of discovery motions deemed meritless by Appellees. On the whole, the record

suggests that West’s failure to comply with the district court’s order was more a

matter of negligence than contumacious conduct.

        Further, as to the second prong, the district court failed to make the

necessary finding that lesser sanctions would not suffice here. “Although we

occasionally have found implicit in an order the conclusion that ‘lesser sanctions

would not suffice’, we have never suggested that the district court need not make


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that finding, which is essential before a party can be penalized for his attorney’s

misconduct.” Mingo v. Sugar Cane Growers Co-Op of Fla., 

, 102

(11th Cir. 1989) (per curiam) (citation omitted). We have, on occasion, inferred

such a finding “where lesser sanctions would have ‘greatly prejudiced’

defendants.” World Thrust Films, Inc. v. Int’l Family Entm’t, Inc., 

,

1457 (11th Cir. 1995) (per curiam) (internal quotation marks omitted). Here,

however, it is unclear how Appellees would have been greatly prejudiced by the

imposition of lesser sanctions, and we decline to infer a finding that lesser

sanctions could not have sufficed under the circumstances.

       Therefore, we conclude that the district court abused its discretion in

dismissing West’s remaining FTCA claims based on West’s failure to file a

proposed pretrial order.

                                      IV.     Conclusion

       For the reasons stated above, we affirm the district court’s dismissal of

West’s Bivens claims, but vacate the district court’s partial granting of summary

judgment and subsequent sua sponte dismissal of West’s FTCA claims and remand

those claims to the district court for further proceedings in accordance with this

opinion.8


       8
         Appellees also present ancillary arguments for dismissal of the instant appeal. First,
Appellees contend that West’s appeal should be dismissed because he failed to serve his opening
brief on counsel for Appellees and to file a proof of service in accordance with Rule 25(b) of the
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       AFFIRMED in part; VACATED AND REMANDED in part.




Federal Rules of Appellate Procedure and Eleventh Circuit Rule 25(d). While a certificate of
service was not initially included with West’s opening brief, he corrected the deficiency within
14 days of being notified thereof by the Clerk of the Court. See 11th Cir. R. 42-3(b). Moreover,
Appellees have not alleged that they suffered any prejudice from the deficiencies in service of
West’s opening brief.
        Second, Appellees contend that West has waived and/or abandoned his arguments on
appeal because West’s brief lacks citations to the record and provides only “cursory statements,
with little or no citation to authority.” See Fed. R. App. P. 28(a)(8). A pro se complaint is
entitled to a liberal reading by this Court. Finch v. City of Vernon, 

, 1504–05
(11th Cir. 1989) (citing Haines v. Kerner, 

, 

(1972)). Since West is pro
se, and since his brief, liberally construed, both sufficiently identifies the issues on appeal and
contains assertions of district court error, we decline to find that West has waived and/or
abandoned his arguments on appeal by failing to comply with Rule 28’s requirements. See
Allstate Ins. Co. v. Swann, 

, 1542 (11th Cir. 1994).
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