* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Plaintiff Michael S. Stevens, proceeding pro se, ap peals from an order of the district court dismissing this action, filed un der 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 o ffenses 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 o f another to engage in unlawful conduct, and damage by explosives. On July 14, 1998, he was assaulted by his cellmate. He timely filed his administrativ e 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 age ncy within two years after it accrues”) (quotation omitted). Mr. Stevens filed this action in federal district c ourt July 13, 2000. He alleged prison officials had placed him in a cell w ith 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 att empt 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 becaus e he had failed to show any injury as a result of the alleged acts. T he district court dismissed this action holding that it lacked subject-matter jurisd iction because Mr. Stevens had failed to exhaust his administrative remedies priorto commencing this action. On appeal, Mr. Stevens argues that h e did exhaust his administrative remedies and that further exhaustion was impossibleand futile. He also asserts he was denied due process and the right of access t o the courts because prison officials stole and waylaid his mail and inmate communication forms, stole his legal materials, threatened him with serious harm i f 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 j urisdiction de novo, accepting the district court’s findings of jurisdic tional 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 pri or to exhausting his administrative remedies. His administrative claim was denied before the district court dismissed this action. However, the court co ncluded that the fact that he ultimately exhausted those remedies did not ripen h is 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 amendme nt, instead, plaintiff must file new suit). As “Congress intended to require complete exhaustio n . . . before invocation of the judicial process,” Mr. Stevens’ a ction was properly dismissed for lack of subject matter jurisdiction. Id. (quotation omitted). The judgment of the United States District Court for the District o f Kansas is AFFIRMED.

Entered for the Court
Bobby R. Baldock Circuit Judge