BLD-170 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 22-1421 ___________

WILLIAM SOLOMON LEWIS, Appellant

v.

UNITED STATES OF AMERICA ____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 3:21-cv-00008) District Judge: Honorable Robert D. Mariani ____________________________________

Submitted for Possible Dismissal Pursuant to

(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 June 9, 2022 Before: MCKEE 1, GREENAWAY, JR., and PORTER, Circuit Judges

(Opinion filed: January 9, 2023) _________

OPINION * _________

PER CURIAM

1 Judge McKee assumed senior status on October 21, 2022. * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. William Lewis, proceeding pro se, appeals from the District Court’s order granting

summary judgment in favor of the United States. We will summarily affirm.

I.

On August 28, 2018, while Lewis was incarcerated at United States Penitentiary –

Allenwood (USP Allenwood), 2 he was assaulted by another inmate wielding a razorblade

and suffered injuries to his face. In January 2021, 3 he filed a complaint under the Federal

Tort Claims Act (FTCA),

and 2671, et seq., alleging that correctional

officers at USP Allenwood were aware of the danger posed by the other inmate but did

nothing to prevent the harm. Lewis sought $2,250 in compensatory damages.

The United States (“the Government”) filed a motion for summary judgment on

the basis that Lewis failed to submit a timely administrative tort claim as required under

(b) and 2675(a). Lewis maintained that he mailed his claim to the

Northeast Regional Office on June 25, 2020, but never received a response. The District

Court found that Lewis failed to prove timely exhaustion and granted summary judgment

in favor of the Government. Lewis now appeals.

II.

2 Lewis was released from federal custody in 2019 and is currently incarcerated at a county jail in Texas. 3 Lewis commenced another action regarding the same incident on August 26, 2020, but it was dismissed without prejudice for lack of jurisdiction because he had not exhausted his administrative remedies. See Lewis v. United States, No. 3:20-CV-1720,

(M.D. Pa. Sept. 23, 2020) 2 We have jurisdiction pursuant to

and review the grant of a

motion for summary judgment de novo. See Dondero v. Lower Milford Twp.,

(3d Cir. 2021). Summary judgment is appropriate “if the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists if the

evidence is sufficient for a reasonable factfinder to return a verdict for the nonmoving

party. See Anderson v. Liberty Lobby, Inc.,

(1986). As a pro se

litigant, Lewis is entitled to liberal construction of his complaint. See Erickson v. Pardus,

(2007) (per curiam). We may summarily affirm if the appeal fails to

present a substantial question. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

III.

The FTCA allows claims to be brought against the Government for torts

committed by federal employees, but certain statutory requirements apply. Relevant

here,

(b) provides that, if a claim under the FTCA is not presented in

writing to the appropriate federal agency “within two years after such claim accrues,” it

will be “forever barred.” 4 See also

(a) (providing that a tort claim shall

not be instituted against the United States unless the claimant first presents it to the

appropriate federal agency and the claim is finally denied in writing). “[T]he requirement

that the appropriate federal agency act on a claim before suit can be brought is

4 Such claims accrue when a plaintiff knows of both the existence and the cause of his or her injury. Miller v. Philadelphia Geriatric Ctr.,

, 271 (3d Cir. 2006). 3 jurisdictional and cannot be waived.” Roma v. United States,

(3d Cir.

2003). As the party invoking the jurisdiction of the court, Lewis bears the burden of

showing that his claims are properly before the court. Dev. Fin. Corp. v. Alpha Hous. &

Health Care, Inc.,

, 158 (3d Cir. 1995).

While Lewis alleged in his complaint that his claims were properly exhausted, the

Government provided an affidavit and records from its computerized database to show

that, despite having previously filed several timely administrative tort claims regarding

different issues, Lewis failed to present a timely claim related to the August 28, 2018

incident. See ECF No. 17. The Government’s affidavit reflects that the Bureau of

Prisons’ Central Office first received documents related to this claim on January 27,

2021. The Central Office forwarded the documents to the Northeast Regional Office,

which received them on March 4, 2021. Regardless of which agency was the appropriate

recipient, neither date falls within two years of the accrual of Lewis’s claim.

Once the Government provided sufficient evidence in support of its motion, Lewis

was required to supplement the record with specific facts demonstrating that there was a

genuinely disputed factual issue. Fireman’s Ins. Co. of Newark, N. J. v. DuFresne,

(3d Cir. 1982). Lewis submitted a complaint and declaration, both dated

August 26, 2020, as exhibits to his brief in opposition to the Government’s motion for

summary judgment. ECF No. 22, p. 5. In the complaint, Lewis stated that “all

administrative remedies have been submitted to the Defendant prior to the filing of this

lawsuit,” and in the declaration, he attested, more specifically, that he “submitted an

4 administrative claim on this matter to the Northeast Regional Office for the Federal

Bureau of Prisons by handing over to jail officials to mail with sufficient postage affixed

by first-class mail on June 25, 2020, and no response has been forthcoming.”

While the record reflects that Lewis signed multiple affidavits asserting that he

handed an administrative tort claim over for mailing on June 25, 2020, these affidavits

were insufficient to defeat summary judgment. Lewis never supplied copies of the

documents he asserts were sent on June 25, 2020, nor did he provide any information

about the contents of the documents, so there is nothing on the record regarding what

specific claims he purportedly raised. He also did not present any evidence, such as an

affidavit of the jail official to whom he handed the envelope or receipts showing the cost

of postage deducted from his jail account, to support his contention that he submitted the

claim in June 2020. Because Lewis’s self-serving affidavits were essentially conclusory

and did not set forth specific facts to prove timely exhaustion, the District Court properly

granted summary judgment in favor of the Government.

IV.

Because no substantial question is presented by this appeal, we will summarily

affirm the District Court’s decision. See 3d Cir. LAR 27.4; I.O.P. 10.6.

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