FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 June 29, 2005 

 THOMAS K. KAHN 

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-15925

Non-Argument Calendar

________________________

D. C. Docket No. 02-22807-CV-JAL

JAMES J. O'BRIEN, 

Plaintiff-Appellant, 

versus 

UNITED STATES OF AMERICA, 

FEDERAL BUREAU OF PRISONS, et al.,

Defendants-Appellees. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(June 29, 2005)

Before CARNES, MARCUS and FAY, Circuit Judges.

PER CURIAM:
 The complaint states “Dan,” but pursuant to O’Brien’s request and the district court’s 1

order, the name was corrected to read “Jan” and, therefore, is changed in this opinion as well.

2

James J. O’Brien appeals pro se the district court’s grant of the defendants’

motion to dismiss his claims of negligence under the Federal Tort Claims Act and

the court’s ruling that O’Brien failed to raise or never intended to raise an Eighth

Amendment claim and thus failed to reach the defendants’ motion to dismiss a

possible claim under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 397,

91 S.Ct. 1999, 2005, 29 L.Ed.2d 619 (1971). He further appeals the district court’s

failure to consider whether one of the defendants was properly served. For the

reasons stated more fully below, we affirm.

O’Brien, a federal prisoner proceeding pro se, filed a “pro se Federal Tort

Complaint for Monetary Damages” against the United States; the Federal Bureau

of Prisons (“BOP”); the Federal Detention Center (“FDC”) in Miami, Florida; John

Doe, Warden of the FDC; Associate Warden Hulle of the FDC; M.A. Stern,

D.D.S., of the FDC; and J.J. Jan, D.D.S., of the FDC, all jointly and severally 1

liable in their official and individual capacities. O’Brien’s complaint stated that he

sought redress for “actual pain and suffering and emotional distress, injuries

sustained as a direct result of the actions, inactions, and omissions of the named

Defendants and of their employees, agents, subordinates,” pursuant to 28 U.S.C. §§

1346(b), 2671 et seq. (Federal Tort Claims Act (“FTCA”). O’Brien specifically
3

cited to the jurisdiction, venue, and statute of limitations requirements of the

FTCA. 

In his complaint, O’Brien alleged the following: (1) he was incarcerated

from February 6, 1999, through February 4, 2002, was protected by “the Eighth

Amendment’s proscription against cruel and unusual punishment,” and at all times

had the right to “reasonable medical care that was the equivalent to that measure of

care accorded to private citizens,” including dental care; (2) he submitted 11

written request forms to the dentist complaining of mouth pain and was examined

at least 8 separate times to address his complaints; (3) from January 18, 2000, to

September 25, 2000, defendants Doe, Hulle, Stern, and Dan were aware of

O’Brien’s continued complaints of mouth pain; (4) from September 25, 2000,

when O’Brien had two molars extracted, until February 4, 2002, Doe, Hulle, Stern,

and Dan, were all aware of O’Brien’s complaints regarding his two remaining

molars; (5) from January 18, 2000, to September 25, 2000, Stern told O’Brien that

he had been placed on the oral surgery schedule three separate times, but defendant

Doe removed O’Brien’s name from the list, thus causing O’Brien ongoing mouth

pain in breach of the duty of reasonable care owed to him; (6) the same duty of

reasonable care was breached again between February 27, 2001 and February 4,

2002, when the defendants failed to provide reasonable care to O’Brien after being
4

made aware of continuing pain from O’Brien’s remaining molars.

Based on the foregoing allegations, O’Brien argued that the defendants

exhibited “deliberate indifference to his medical needs by: (a) delaying his thricescheduled oral surgery, and for an unreasonably long period of time; and (b) failing

to reschedule him for followup surgery to address the remaining two impacted

molars, again for an unreasonably long period of time.” O’Brien further alleged

that the FDC defendants were vicariously liable based upon the reasonably

foreseeable knowledge that their failure to act would cause O’Brien pain, they

acted in bad faith, and they committed “wanton misconduct and negligence.” 

O’Brien further stated that the laws of the State of Florida permitted the

defendants’ liability for their negligent acts committed within the scope of their

employment and that the FTCA did not allow the United States to assert sovereign

immunity. O’Brien sought, inter alia, $10,000 in compensatory damages.

The defendants subsequently filed a motion to dismiss O’Brien’s complaint

pursuant to Fed.R.Civ. P. 12(b)(1) for lack of subject matter jurisdiction. The

defendants argued that O’Brien had failed to exhaust his administrative remedies

under the FTCA because (1) he had filed an administrative claim with the BOP and

FDC on July 16, 2002, but filed his FTCA claim in federal court on September 24,

2002, before the administrative claim had been decided. Because O’Brien’s
5

administrative claim was not denied until December 2, 2002, the defendants argued

that O’Brien’s FTCA civil action had been prematurely filed and not properly

refiled within six months of the denial of his administrative claim and, thus, the

district court lacked jurisdiction over the claim because O’Brien had failed to

properly exhaust his administrative remedies. The defendants further argued that,

under the FTCA, only the United States was a properly named party and, therefore,

all of the individual defendants and the federal agencies named as defendants were

due to be dismissed.

Finally, the defendants sua sponte noted that, although O’Brien’s complaint

made only a single reference to the Eighth Amendment and one use of the term

“deliberate indifference,” and furthermore, on its face did not seek relief against

the individual defendants under 28 U.S.C. § 1331 for violating O’Brien’s

constitutional rights under Bivens, any possible construction of O’Brien’s

complaint to encompass a Bivens claim was also due to be dismissed under

Fed.R.Civ.P 12(b)(1) because O’Brien had not exhausted his administrative

remedies with respect to that claim. 

O’Brien responded to the defendants’ motion by stating that he did not

dispute that his FTCA complaint was filed prematurely, but argued that he had no

access to the rules regarding the filing of such claims. O’Brien further argued that
6

he made a good-faith attempt to exhaust his administrative remedies, which should

prevent the district court from dismissing for lack of subject matter jurisdiction. 

Finally, O’Brien argued that he was denied access to proper legal materials despite

requests. No mention was made of any Bivens claim or the fact that the defendants

addressed the issue in its motion to dismiss. 

The defendants replied to O’Brien’s argument, that the exhaustion

requirements be waived, arguing that the exhaustion requirements were procedural

and non-waiveable, even for a pro se litigant and, in any event, it was evident from

O’Brien’s complaint that he had access to the FTCA because it was explicitly cited

as his cause of action. It further noted that O’Brien had failed to include any

requests for materials that were denied to him and that O’Brien had failed to allege

that he did not have access to legal resources during the time in which his FTCA

complaint should have been filed.

On October 21, 2003, O’Brien filed a motion to amend his complaint

pursuant to Fed.R.Civ.P. 15(a) in order to substitute Monica Wetzel, the warden of

the FDC in Miami for the majority of O’Brien’s incarceration, for “John Doe.” He

then filed a response to the defendants’ reply brief, arguing that (1) the FTCA’s

exhaustion requirements did not address an “attempt” at exhausting remedies

where request forms were filed and a plaintiff was unable to obtain the proper
 O’Brien refers to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. 2

7

forms; (2) he did not have an urgent need for a legal library or legal materials after

he had filed his “tort” claim on July 16, 2002; (3) he had no way of knowing that

he could refile his claim because he did not have legal materials available to him

and, while he conceded that he overlooked the inclusion of his specific requests,

the materials he requested were statutes, 28 U.S.C. §§ 2401(b) and 2675(a), “which

would have assisted plaintiff on the filing procedures for his Tort Complaint;” and

(4) the government’s failure to object to the evidence O’Brien presented waived

any right to do so, making summary judgment in O’Brien’s favor appropriate. 

O’Brien also filed a motion to supplement his response to the defendants’ motion

to dismiss, essentially restating his arguments and citing Thomas v. Woodlum, 337

F.3d 720 (6th Cir. 2003) to support his “attempt” argument regarding exhaustion

requirements. No mention of Bivens, 42 U.S.C. § 1983, or any other potential

constitutional deprivation was made.

O’Brien filed two more motions to supplement his response to the

defendants’ motion to dismiss, first arguing that the BOP’s regional counsel

obstructed the evidence and violated the “Privacy Act,” and second, arguing that 2

the government’s reading of Thomas was flawed and the issue was whether an

“attempt” to follow prison procedures was sufficient to exhaust his administrative
8

remedies, which O’Brien argued was enough. The government responded only to

O’Brien’s FOIA claims, arguing that (1) O’Brien failed to exhaust his

administrative remedies and (2) the defendants were otherwise exempt from

O’Brien’s request. The district court granted O’Brien’s motions to supplement,

finding that the defendants had not objected to the additional arguments. 

O’Brien’s FOIA claims, however, were denied.

On April 13, 2004, O’Brien submitted a brief arguing that he had received a

response from the BOP denying his tort claim and, therefore, the prematureness of

his FTCA complaint should be deemed cured. It is noted that, at no point in any of

O’Brien’s responses, replies, supplemental filings, or briefs, is there a mention of

Bivens, 42 U.S.C. § 1983, the Eighth Amendment, or any other deprivation of a

constitutional right.

Finally, on September 28, 2004, the district court granted the defendants’

motion to dismiss. It found that it was without jurisdiction to consider O’Brien’s

FTCA claim because he had failed to exhaust his administrative remedies before

filing his complaint. The court specifically rejected O’Brien’s argument that his

claim be allowed to proceed because no substantial progress had taken place before

his administrative claim was denied granted and, furthermore, it found that even

though O’Brien was pro se, the procedural requirements of the FTCA applied to
9

him without leniency. The district court found that O’Brien’s claim that the BOP

delayed his attempt to comply with administrative procedures was irrelevant

because O’Brien had filed an administrative claim with the BOP, then improperly

filed a civil complaint before the administrative claim had been denied, and failed

to file an FTCA claim within six months after O’Brien’s administrative grievance

had been denied. Finally, the court declined to reach the defendants’ argument that

O’Brien’s Bivens claim, if he had even made one, be dismissed for failing to

exhaust administrative remedies because the court found that “the Complaint does

not state a Bivens claim and . . . in his Response . . . Plaintiff did not assert that he

intended to raise such a claim.” All other pending motions were denied as moot.

On appeal, O’Brien first argues that the district court erred by finding that he

had failed to state a claim under Bivens. He argues that the district court, by

failing to find that his claim was a constitutional claim under Bivens, failed to

reach the defendants’ motion to dismiss, and in so doing, failed to accept as true all

the factual allegations in his complaint, which he argues raised a constitutional

claim under the Eighth Amendment and deliberate indifference standards. O’Brien

argues that the district court was obligated to liberally construe his claim, and

failed to properly apply the rules for determining whether a cause of action under

Bivens had been made. He further argues that the district court should have
 The closest analogy to the district court’s finding that O’Brien did not intend to raise a 3

Bivens claim might be a finding that O’Brien failed to state a claim upon which relief could be

granted, warranting dismissal under Fed.R.Civ.P. 12(b)(6). That finding would be reviewed de

novo. See, e.g., Simmons v. Sonyika, 394 F.3d 1335, 1338 (11th Cir. 2004). However, this is

not a case where the district court found that the plaintiff failed to state a claim either factually or

legally, but rather found that this plaintiff never intended to raise a claim in the first instance,

meaning it did not reach any merit-based decision regarding whether the claim should be

dismissed because it found the claim did not exist in the first place. 

10

permitted him to amend his claim.

The United States Supreme Court has held that federal officials may be sued

in their individual capacities for violations of a person’s constitutional rights. 

Bivens v. Six Unknown Named Agents, 403 U.S. 388, 397, 91 S.Ct. 1999, 2005,

29 L.Ed.2d 619 (1971). Because claims under 42 U.S.C. § 1983 and Bivens are

similar, courts generally apply § 1983 law to Bivens cases. Abella v. Rubino, 63

F.3d 1063, 1065 (11th Cir. 1995). Thus, under Bivens, “a plaintiff must show that

he or she was deprived of a federal right by a person acting under color of [federal]

law.” Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001).

We will assume that review of the district court’s conclusions regarding

whether a plaintiff intends to raise a Bivens claim is reviewed de novo, as even

under a de novo review, the record shows that O’Brien, despite having an

opportunity to do so, never attempted or intended to invoke Bivens and, in fact, has

raised Bivens for the first time on appeal.3

O’Brien’s complaint sought redress for “actual pain and suffering and
11

emotional distress, injuries sustained as a direct result of the actions, inactions, and

omissions of the named Defendants and of their employees, agents, subordinates,”

pursuant to 28 U.S.C. §§ 1346(b), 2671 et seq. (FTCA). O’Brien specifically cited

to the jurisdiction, venue, and statute of limitations requirements of the FTCA. At

no point does the complaint mention 42 U.S.C. § 1983 (protecting against

deprivation of constitutional rights by government agents acting under color of

state law), Bivens (extending § 1983 protection to individuals acting under color of

federal law), or either 28 U.S.C. §§ 1331 or 1343 (federal question jurisdiction or

civil rights jurisdiction, including constitutional rights).

As the defendants noted in their motion to dismiss, O’Brien’s complaint

does assert that, while incarcerated at the FDC in Miami, he was protected by the

Eighth Amendment, but the complaint does not allege that O’Brien’s Eighth

Amendment rights were violated. Moreover, while O’Brien mentions that the

defendants were “deliberately indifferent” to his medical needs, the relief O’Brien

sought was for, inter alia, vicarious liability, agency, and negligence, all of which

he claims would be governed by Florida law under the FTCA. The defendants, in

their motion to dismiss, gave O’Brien the benefit of the doubt and raised the

possibility that O’Brien might have intended a Bivens claim. It noted that, even if

the district court were to give such a construction to O’Brien’s complaint, which it
12

need not do given that the complaint did not facially seek relief for a violation of

constitutional rights, the claim should be dismissed for failure to exhaust

administrative remedies.

In his multiple responses to the defendants’ motion, O’Brien never once

raised Bivens, mentioned any alleged constitutional violation, filed a motion to

amend his complaint to include such a claim, or even addressed the government’s

argument that he had failed to exhaust his administrative remedies regarding a

Bivens claim. Furthermore, O’Brien knew how to amend his complaint pursuant

to Fed.R.Civ.P. 15(a), as he filed a motion to do so seeking to amend one of the

defendants. 

The fact remains that throughout his responses and motions to

amend/supplement those responses, O’Brien only argues the FTCA, and for the

first time on appeal argues that he intended to raise a Bivens claim. “This Court

has repeatedly held that an issue not raised in the district court and raised for the

first time in an appeal will not be considered.” Access Now, Inc. v. Southwest

Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004). Accordingly, while O’Brien is

pro se and entitled to a liberal construction of his complaint, he had multiple

opportunities to respond to the defendants’ assertion that O’Brien did not raise a

Bivens claim, but if he did, it should be dismissed for lack of subject matter
13

jurisdiction. O’Brien chose not to amend his complaint or argue Bivens despite

being on notice (as he did respond to the defendants’ motion to dismiss) that a

Bivens claim was not out of the question if he intended to raise it. However, we

conclude that O’Brien’s Bivens claim is raised for the first time on appeal and,

therefore, decline to consider it. Access Now, 385 F.3d at 1331.

O’Brien next argues that the district court erred by finding that he had failed

to exhaust his administrative remedies, contending that his “attempt” to do so

should have been satisfactory. We review the dismissal of an action for lack of

subject matter jurisdiction de novo. Ochran v. United States, 117 F.3d 495, 499

(11th Cir. 1997). “The Federal Tort Claims Act (FTCA) provides that an ‘action

shall not be instituted upon a claim against the United States for money damages’

unless the claimant has first exhausted his administrative remedies.” McNeil v.

United States, 508 U.S. 106, 107, 113 S.Ct. 1980, 1981, 124 L.Ed.2d 121 (1993). 

Pursuant to 28 U.S.C. § 2675(a) of the FTCA:

An action shall not be instituted upon a claim against the United

States for money damages for injury or loss of property or 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, 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 in writing and sent by certified or

registered mail. The failure of an agency to make final disposition of a

claim within six months after it is filed shall, at the option of the

claimant any time thereafter, be deemed a final denial of the claim for
14

purposes of this section.

28 U.S.C. § 2675(a).

In McNeil, the United States Supreme Court decided whether an action may

be maintained under the FTCA when the claimant failed to exhaust his

administrative remedies prior to filing suit, but did so before substantial progress

was made in the litigation. McNeil, 508 U.S. at 107, 113 S.Ct. at 1981. In

McNeil, the plaintiff filed a complaint on March 6, 1989, in district court under the

FTCA and four months later filed an administrative claim, which was subsequently

denied on July 21, 1989. Id. at 107-08, 113 S.Ct. at 1981-82. The government

moved to dismiss the complaint, arguing that the complaint was not filed until

April 15, 1990, when the plaintiff paid the filing fees, while the plaintiff argued

that the complaint was filed on March 6, 1989, and, therefore, timely. Id. at 108-

09, 113 S.Ct. at 1982. The Court rejected the plaintiff’s argument that, so long as

no substantial progress has been made in the litigation by the time the claimant has

exhausted his administrative remedies, the federal agency will have had a fair

opportunity to investigate and/or settle the claim. Id. at 111-12, 113 S.Ct at 1983. 

Thus, the Supreme Court in McNeil held that the “FTCA bars claimants

from bringing suit in federal court until they have exhausted their administrative

remedies,” and because the plaintiff there “failed to heed that clear statutory
15

command, the District Court properly dismissed his suit.” Id. at 113, 113 S.Ct. at

1984. The Court further noted that, the fact that the plaintiff in McNeil was pro se

did not excuse mistakes in following procedural rules in ordinary civil litigation. 

Id., 113 S.Ct at 1984. 

Here, like in McNeil, O’Brien prematurely filed his civil complaint under

the FTCA and likewise “failed to heed that clear statutory command” requiring that

his administrative remedies be exhausted before bringing suit. Moreover, while

McNeil noted that pro se litigants are entitled to have their pleadings liberally

construed, procedural rules such as exhausting administrative remedies before

filing suit were specifically excluded from that rule. See McNeil, 508 U.S. at 113,

113 S.Ct. at 1984. Finally, any argument O’Brien makes regarding his inability to

properly file an administrative claim is meritless given that he adequately

presented his tort claim to the BOP, which denied the claim. Accordingly,

O’Brien’s complaint was filed prematurely, before administrative proceedings had

concluded, and was not refiled within six months after his administrative claim had

been denied. Therefore, we conclude that the district court properly dismissed

O’Brien’s FTCA complaint for lack of subject matter jurisdiction.

Lastly, O’Brien argues that the district court failed to address and review

whether defendant Wetzel was properly served. Here, because we have already
16

determined that the district court did not err by finding that O’Brien did not raise or

intend to raise a Bivens claim and did not err by dismissing O’Brien’s FTCA

complaint for lack of jurisdiction, any unresolved issues relating to service of

process on Monica Wetzel, former warden of the FDC in Miami, are moot because

the district court does not have jurisdiction over any of O’Brien’s claims, including

those against Wetzel.

Based on the foregoing, the district court did not err by dismissing O’Brien’s

FTCA complaint, finding that O’Brien did not raise or intend to raise a Bivens

claim, or denying as moot the propriety of service of process on defendant Wetzel. 

We, therefore, affirm.

AFFIRMED.