* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

APR 1 2003

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MICHAEL S. STEVENS,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

No. 02-3181

(D.C. No. 00-CV-3258-JTM)

(D. Kan.)

ORDER AND JUDGMENT *

Before LUCERO , McKAY , and BALDOCK , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.
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Plaintiff Michael S. Stevens, proceeding pro se, appeals from an order of

the district court dismissing this action, filed under the Federal Tort Claims Act

(FTCA), 28 U.S.C. §§ 1346(b), 2671-2680. We affirm.

Mr. Stevens is serving a life sentence for conspiracy to commit offenses

against the United States, unlawful transportation in interstate commerce of

explosives, unlawful possession of explosives with intent to kill, injure, and

unlawfully damage property, unlawful solicitation of another to engage in

unlawful conduct, and damage by explosives. On July 14, 1998, he was assaulted

by his cellmate. He timely filed his administrative claim on July 11, 2000. See

Dahl v. United States , 319 F.3d 1226, 1228 (10th Cir. 2003) (“tort claim must be

presented in writing to the appropriate Federal agency within two years after it

accrues”) (quotation omitted). 

Mr. Stevens filed this action in federal district court July 13, 2000. He

alleged prison officials had placed him in a cell with an inmate who was on single

cell status because he was under investigation for killing another inmate a few

months earlier. As a result of that cellmate’s attempt to strangle him, Mr. Stevens

alleged he suffered serious and permanent damage to his spine. He further

contended that prison officials told other inmates he was a “baby-raper” in order

to incite them to do additional harm to him. 
-3-

Mr. Stevens’ administrative claim was denied because he had failed to

show any injury as a result of the alleged acts. The district court dismissed this

action holding that it lacked subject-matter jurisdiction because Mr. Stevens had

failed to exhaust his administrative remedies prior to commencing this action.

On appeal, Mr. Stevens argues that h e did exhaust his administrative

remedies and that further exhaustion was impossible and futile. He also asserts

he was denied due process and the right of access to the courts because prison

officials stole and waylaid his mail and inmate communication forms, stole his

legal materials, threatened him with serious harm if he mentioned the attempted

murder, and ignored his request for administrative remedy forms. Mr. Stevens

concludes he should be compensated for his injuries.

“We review a dismissal for lack of subject-matter jurisdiction de novo,

accepting the district court’s findings of jurisdictional facts unless they are clearly

erroneous.” Montoya v. Chao , 296 F.3d 952, 954-55 (10th Cir. 2002). 

Mr. Stevens filed this action in district court prior to exhausting his

administrative remedies. His administrative claim was denied before the district

court dismissed this action. However, the court concluded that the fact that he

ultimately exhausted those remedies did not ripen his current action. We agree.

We have held that even the filing of an amended complaint, an action Mr. Stevens

did not take, does not serve to cure a prematurely filed original complaint. See
-4-

Duplan v. Harper , 188 F.3d 1195, 1199 (10th Cir. 1999) (as general rule,

premature complaint cannot be cured through amendment, instead, plaintiff must

file new suit). 

As “Congress intended to require complete exhaustion . . . before

invocation of the judicial process,” Mr. Stevens’ action was properly dismissed

for lack of subject matter jurisdiction. Id. (quotation omitted). The judgment of

the United States District Court for the District of Kansas is AFFIRMED.

Entered for the Court

Bobby R. Baldock 

Circuit Judge