Unpublished Disposition, 855 F.2d 861 (9th Cir. 1988)
Annotate this CasePeter Wayne FROST, Plaintiff-Appellant,v.UNITED STATES of America; Bureau of Prisons, Defendants-Appellees.
No. 87-2632.
United States Court of Appeals, Ninth Circuit.
Submitted June 22, 1988.* Decided July 28, 1988.
Before FERGUSON, NORRIS and WIGGINS, Circuit Judges.
MEMORANDUM**
Frost contends that the district court erred by dismissing his action for lack of subject matter jurisdiction. Appellant's Opening Brief at 1. This contention has merit.
The Federal Tort Claims Act (FTCA) requires claimants to exhaust administrative remedies before filing suit against the United States. 28 U.S.C. § 2675(a). A claimant may not sue the government until either (1) an agency denies relief in writing and sends its decision to him by certified or registered mail, or (2) an agency fails to make a final disposition of the claim within six months after it is filed. Id. The exhaustion of administrative remedies is a jurisdictional prerequisite to suing under the FTCA. Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir. 1980). This court reviews de novo a district court dismissal of an action for lack of subject matter jurisdiction. Atkinson v. United States, 825 F.2d 202, 204 (9th Cir. 1987), cert. denied, 108 S. Ct. 1288 (1988).
Frost's complaint is defective because it fails to allege that he exhausted his administrative remedies before bringing suit against the government. See Gillespie, 629 F.2d at 640 (plaintiff in an FTCA action must allege that he exhausted administrative remedies). The complaint only alleges that Frost filed an administrative claim for supplies taken in August 1986. It does not state whether Frost filed an administrative claim for materials taken in March 1987, nor does the complaint allege the result of any administrative action. However, Frost's motion for summary judgment and his supporting declaration state that he had filed unsuccessful administrative claim after each theft (CR 10: Declaration at paragraphs 12, 13).1
The district court erred by dismissing Frost's action without giving him an opportunity to amend his complaint to allege the exhaustion of administrative remedies. Frost's pro se pleadings are held to less stringent standard than formal pleadings drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972). Pro se plaintiffs should be given an opportunity to amend their complaints unless it clearly appears that the deficiency cannot be overcome by amendment. Gillespie, 629 F.2d at 640. Here, Frost's motion for summary judgment and supporting declaration indicate that he may be able to amend his complaint to allege the exhaustion of administrative remedies required by the FTCA. Accordingly, the district court erred by dismissing Frost's action for lack of subject matter jurisdiction without granting Frost leave to amend his complaint.2
We express no opinion on the merits of the case.
REVERSED and REMANDED.
The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Circuit Rule 36-3
Frost's motion for summary judgment states that he exhausted administrative remedies. His declaration states that (1) his August 1986 administrative claim was denied and (2) he did not receive any relief for his March 1987 administrative claim
The district court properly dismissed Frost's action against the Federal Bureau of Prisons because the United States is the only proper defendant in an FTCA action. 28 U.S.C. § 2674
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