NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 16-3148

___________

ERNEST PRIOVOLOS,

Appellant

v.

FEDERAL BUREAU OF INVESTIGATION;

LABORATORY EMPLOYEES JOHN DOE 1 AND JOHN DOE 2;

UNITED STATES OF AMERICA 

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 15-cv-00151)

District Judge: Honorable C. Darnell Jones, II

____________________________________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

December 23, 2016

Before: GREENAWAY, JR., GREENBERG and ROTH, Circuit Judges

(Opinion filed: April 13, 2017)

___________

OPINION*

___________

PER CURIAM

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Ernest Priovolos, proceeding pro se, appeals an order of the United States District 

Court for the Eastern District of Pennsylvania granting the United States’ motion to 

dismiss, or in the alternative for summary judgment, in an action brought under the 

Federal Tort Claims Act (FTCA). 28 U.S.C. § 2674. For the following reasons, we will 

affirm. 

In 1990, a jury in the Montgomery County Court of Common Pleas found 

Priovolos guilty of third degree murder and related offenses. He was sentenced to an 

aggregate term of 12 to 27 years of imprisonment. His attempts to obtain post-conviction 

relief in state and federal court were unsuccessful. In 2012, Priovolos hired a forensics 

expert, who, after reviewing FBI laboratory reports that were prepared prior to trial, 

concluded that Priovolos should have been excluded as a source of blood and hair 

samples recovered from the victim’s clothing. 

Relying on the expert’s report, Priovolos filed a complaint under the FTCA 

against the FBI and two of its laboratory employees. Priovolos alleged that the “falsified 

laboratory reports” resulted in infliction of emotional distress and false imprisonment. 

The District Court sua sponte dismissed the complaint pursuant to 28 U.S.C. 

§ 1915(e)(2)(B)(ii). Priovolos appealed, and we affirmed in part and vacated in part. 

Priovolos v. FBI, 632 F. App’x 58 (3d Cir. 2015). In particular, we held that the FBI and 

its employees were not proper defendants, and that Priovolos was not entitled to punitive 

damages and injunctive relief under the FTCA. Id. at 59 n.1. But we concluded that 

Priovolos could remedy the jurisdictional defect caused by failing to name the United 
3

States as a defendant, and that the District Court erred in concluding that the false 

imprisonment claim was barred by Heck v. Humphrey, 512 U.S. 477 (1994). Id. at 60-

61.

On remand, Priovolos filed an amended complaint naming the United States as a 

defendant. After being served with the amended complaint, the United States filed a 

motion to dismiss, or in the alternative for summary judgment, arguing, inter alia, that the 

District Court lacked subject matter jurisdiction because Priovolos failed to submit an 

administrative tort claim to the FBI. The District Court agreed, stating that “it is apparent 

from the record that [Priovolos] did not exhaust appropriate administrative remedies and 

as such, is now barred from pursuing claims against the United States under the FTCA.” 

Priovolos v. United States, 2016 WL 3551501, at *5 (E.D. Pa. June 30, 2016) (not 

precedential). Priovolos appealed.1

The FTCA is the exclusive remedy against the United States for certain negligent 

or wrongful acts of federal employees acting within the scope of their employment. See

28 U.S.C. § 2679(b)(1); Aliota v. Graham, 984 F.2d 1350, 1355 (3d Cir. 1993). The 

FTCA “operates as a limited waiver” of the sovereign immunity of the United States and 

should be “strictly construed.” White-Squire, 592 F.3d at 456 (citations omitted). 

Federal courts cannot assume jurisdiction over FTCA claims until the plaintiff has first 

 

1 We have jurisdiction pursuant to 28 U.S.C. § 1291. “When reviewing an order 

dismissing a claim for lack of subject matter jurisdiction, we exercise plenary review over 

legal conclusions and review findings of fact for clear error.” White-Squire v. U.S. 

Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010).
4

presented his claim to the appropriate federal agency and the claim has been denied. 28 

U.S.C. § 2675(a); White-Squire, 592 F.3d at 457. This exhaustion requirement “is 

jurisdictional and cannot be waived.” Roma v. United States, 344 F.3d 352, 362 (3d Cir. 

2003) (citation omitted).

Priovolos’ amended complaint did not allege that he presented his claims to the 

FBI. In addition, according to a sworn declaration from an FBI official who searched the 

records system where all administrative claims submitted to the FBI are indexed, 

Priovolos did not file any claim pertaining to the allegations in his complaint. See

Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977) (stating 

that in evaluating a Rule 12(b)(1) motion that presents a factual challenge to subject 

matter jurisdiction, the District Court is entitled to consider evidence outside the 

complaint). Therefore, under the FTCA, the District Court lacked jurisdiction over his 

federal tort claim. See McNeil v. United States, 508 U.S. 106, 113 (1993) (“The FTCA 

bars claimants from bringing suit in federal court until they have exhausted their 

administrative remedies.”). In his response to the motion to dismiss, Priovolos indicated 

that he submitted an “administrative request for relief” to the FBI after filing his amended 

complaint. But the subsequent filing and denial of a claim after suit has been commenced 

does not overcome the failure to exhaust administrative remedies and premature filing of 

the complaint. See id. at 111-12. Thus, Priovolos failed to exhaust administrative 

remedies as required by the FTCA, and the District Court did not have subject matter 

jurisdiction over his claims. 
5

For the foregoing reasons, we will affirm the District Court’s judgment.