BLD-119                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 12-2745
                                      ___________

                                 GARLAND MILLER,
                                            Appellant

                                            v.

                          UNITED STATES OF AMERICA
                      ____________________________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                            (D.C. Civil No. 1-11-cv-00720)
                     District Judge: Honorable John E. Jones III
                     ____________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   February 14, 2013

       Before: SCIRICA, HARDIMAN and GREENAWAY, JR., Circuit Judges

                              (Opinion filed April 8, 2013)
                                      _________

                                       OPINION
                                       _________

PER CURIAM

      Garland Miller, a former federal prisoner proceeding pro se, appeals from the

District Court’s order granting the Defendants’ motion to dismiss for lack of subject
matter jurisdiction. There being no substantial question presented on appeal, we will

summarily affirm. 3d Cir. LAR 27.4 and I.O.P. 10.6.

                                             I.

       Miller arrived at the Allenwood Low Security Correctional Institution (“LSCI-

Allenwood”) in April 2009. At LSCI-Allenwood, the inmates’ cubes contain bunk beds

without ladders. To access the upper bunk, it was necessary to use a stool marked “NO

STEP.” Miller’s request for a lower bunk, due to his foot deformity and inability to

climb, was denied. On April 17, 2009, Miller was climbing down from his upper bunk

when the stool marked “NO STEP” slipped, causing him to hit his left knee first on the

stool and then on the angle iron of the lower bunk. He immediately experienced pain and

swelling, and eventually had surgery to repair a torn meniscus in his left knee. He

claimed that the Bureau of Prisons (“the BOP”) would not give him the anti-

inflammatory drug Celebrex after his surgery, even though it was prescribed by his

physician.

       Miller filed a complaint on April 15, 2011, asserting a claim for monetary

damages under the Federal Tort Claims Act (“FTCA”) against the BOP, two wardens,

and the United States of America (collectively, “the Defendants”). (Dkt. No. 1.) The

Defendants filed a motion to dismiss for lack of subject matter jurisdiction due to Miller’s

failure to exhaust his administrative remedies. (Dkt. No. 12.) By order entered June 6,




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2012, the District Court granted the Defendants’ motion. (Dkt. Nos. 38, 39.) Miller

timely appealed. (Dkt. No. 41.)

                                            II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review

over an order dismissing a claim for lack of subject matter jurisdiction. White-Squire v.

U.S. Postal Serv., 

, 456 (3d Cir. 2010) (citations omitted). We may

summarily affirm the decision of the District Court if no substantial question is presented

on appeal. 3d Cir. LAR 27.4 and I.O.P. 10.6.

       Miller claimed that his injuries were a result of the Defendants’ negligence and

that, pursuant to the FTCA, they were liable for monetary damages. The FTCA “operates

as a limited waiver” of the sovereign immunity of the United States and should be

“strictly construed.” 

(citations omitted). A plaintiff must

exhaust all administrative remedies before bringing a claim under the FTCA. 

28 U.S.C. § 2675(a)). This requirement “is jurisdictional and cannot be

waived.” Roma v. United States, 

, 362 (3d Cir. 2003) (citation omitted).

       Miller filed an Administrative Tort Claim, dated January 4, 2010, raising

numerous claims, including the one pertaining to his left knee injury. The BOP notified

him that his Administrative Tort Claim was rejected because it involved several

incidents, and advised him that each incident needed to be filed separately. (Dkt. No. 1,

p. 4.) Miller never resubmitted his claims as advised. (Dkt. No. 8, p. 7.)

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       An action may not be instituted against the United States for damages unless the

plaintiff presents his claim to the appropriate federal agency and receives a final denial in

writing by the agency. 28 U.S.C. § 2675(a). Because Miller failed to resubmit his

claims, he did not receive a final denial from the Bureau of Prisons. He therefore failed

to exhaust his administrative remedies prior to bringing his claim under the FTCA. See

Pinho v. Gonzales, 

, 200 (3d Cir. 2005) (“Finality requires exhaustion of

administrative remedies.”); see also 

(claim must be finally denied

prior to filing suit). The District Court properly granted the Government’s motion to

dismiss for lack of subject matter jurisdiction.

                                             III.

       There being no substantial question presented on appeal, we will summarily affirm

the District Court’s June 6, 2012 order.




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