William Oliver v. United States, et al, No. 10-11086 (5th Cir. 2012)

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Case: 10-11086 Document: 00511713207 Page: 1 Date Filed: 01/04/2012 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 10-11086 Summary Calendar January 4, 2012 Lyle W. Cayce Clerk WILLIAM N. OLIVER, Plaintiff - Appellant v. THE UNITED STATES; FEDERAL BUREAU OF PRISONS AT FCI, Fort Worth, Texas, Defendants - Appellees Appeal from the United States District Court for the Northern District of Texas USDC No. 4:10-CV-607 Before BARKSDALE, STEWART, and PRADO, Circuit Judges. PER CURIAM:* William N. Oliver, federal prisoner # 44269-004, proceeding pro se, challenges dismissal of his Federal Tort Claims Act (FTCA) complaint. The district court determined Oliver filed his FTCA complaint in August 2010, more than six months after the Department of Justice (DOJ) mailed a denial letter, date-stamped 27 May 2009, for Oliver s administrative-tort claim. The district * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 10-11086 Document: 00511713207 Page: 2 Date Filed: 01/04/2012 No. 10-11086 court concluded the complaint was, therefore, untimely under the FTCA, 28 U.S.C. § 2401(b) (six-month deadline), and dismissed it under 28 U.S.C. § 1915(e)(2)(B) (district court must dismiss prisoner s in forma pauperis complaint if frivolous or fails to state claim). Review is de novo. E.g., Samford v. Dretke, 562 F.3d 674, 678 (5th Cir. 2009). Although time-barred claims are properly dismissed under § 1915, Gonzales v. Wyatt, 157 F.3d 1016, 1019-20 (5th Cir. 1998), a discrepancy between the 27 May 2009 date stamp on the DOJ letter and events discussed in the letter occurring after that date suggests the date stamp may be incorrect. Consequently, we cannot determine whether the evidence supports the district court s conclusion. For the foregoing reasons, the judgment is VACATED and this matter is REMANDED to district court to determine the limitations issue, after making appropriate factual findings on when the DOJ letter was mailed to Oliver. 2

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