*

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

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. This order and judgment is

not binding precedent except under the doctrines of law of the case, res judicata

and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

August 19, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GARY L. GAINES,

Plaintiff-Appellant, No. 08-7030

v. (E.D. Oklahoma)

UNITED STATES MARSHALS

SERVICE; MUSKOGEE COUNTY

SHERIFF; OFFICE OF CHARLES

PEARSON, 

Defendants-Appellees.

 (D.C. No. CIV. 06-083-SPS)

ORDER AND JUDGMENT*

Before HENRY, Chief Judge, ANDERSON, and BALDOCK, Circuit Judges.

Gary L. Gaines, a state prisoner proceeding pro se, appeals the district

court’s dismissal of his complaint against the United States Marshal’s Service

(USMS) and the Sheriff of Muskogee County, Oklahoma. Pursuant to Rule 12(h)
-2-

of the Federal Rules of Civil Procedure, the district court dismissed Mr. Gaines’s

complaint after finding it had not been timely filed, thereby depriving the court of

subject matter jurisdiction. We have jurisdiction under 28 U.S.C. § 1291 to

review the district court’s decision. 

In February 2006, Mr. Gaines filed a complaint in federal district court

against the USMS and the Muskogee County Detention Center (MCDC), claiming

he had received inadequate medical care from the USMS in November 2002 when

it transported him to the MCDC, where he allegedly received inadequate medical

care from the sheriff’s department. Mr. Gaines had already filed an

administrative tort claim against the USMS, which was denied. The district court

dismissed Mr. Gaines’s claims against the MCDC, which is not a suable entity. 

After Mr. Gaines amended his complaint to name the Sheriff of Muskogee County

as a defendant, the district court dismissed Mr. Gaines’s claims against the Sheriff

as well, correctly observing that any claims Mr. Gaines might have made against

the Sheriff under 42 U.S.C. § 1983 were time-barred by Oklahoma’s two-year

statute of limitations.

The district court also dismissed Mr. Gaines’s claims against the USMS,

which, like MCDC, is not a suable entity. The court informed Mr. Gaines that he

could amend the complaint to include the United States as a defendant, the proper

course under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., but

only if the action had been timely filed. See 28 U.S.C. § 2401(b) (“A tort claim
-3-

against the United States shall be forever barred . . . unless action is begun within

six months after the date of mailing by certified or registered mail, of notice of

final denial of the claim by the agency to which it was presented.”) In this case,

the Clerk of the Court received the complaint via U.S. mail on February 27, 2006,

more than six months after August 22, 2005, when Mr. Gaines received notice

that his administrative claims against the USMS had been denied. The district

court directed Mr. Gaines to establish compliance with the “prison mailbox rule,”

whereby a prisoner may effect timely filing of legal documents through a prison

mail system by submitting a sworn, notarized statement that, among other things,

attests to the date that the prisoner deposited the documents with the system. See

Price v. Philpot, 420 F.3d 1158, 1164-65 (10th Cir. 2005). After reviewing Mr.

Gaines’s submissions, the district court determined that he had not complied with

the prison mailbox rule, and, therefore, that his filing was untimely. Mr. Gaines

timely appealed the court’s ruling. 

We review de novo a district court’s determination that it lacks subject

matter jurisdiction. Erlandson v. Northglenn Mun. Court, 528 F.3d 785, 788

(10th Cir. 2008). After carefully examining the record and the district court’s

thorough order, we agree with the court’s reasoning and conclusion. Under the

prison mailbox rule, when an inmate does not have access to a legal mail system,

as was the case with Mr. Gaines, “[t]imely filing may be shown by a declaration

in compliance with 28 U.S.C. § 1746 or by a notarized statement, either of which
1

 Because we hold that Mr. Gaines did not timely file his amended

complaint, we need not determine whether the new complaint related back to the

original complaint under Rule 15(c) of the Federal Rules of Civil Procedure. 

Rule 15(c) requires, among other things, that the newly named party (here, the

United States) have had sufficient notice of the original institution of the action. 

See FED. R. CIV. P. 15(c)(1)(C). When the United States is added as a defendant,

as a general rule, the mailing of process to the United States Attorney or the

Attorney General of the United States will suffice to establish proper notice. See

FED. R. CIV. P. 15(c)(2); Allgeier v. United States, 909 F.2d 869, 872 (6th Cir.

1990) (discussing notice to the United States in the context of Rule 15(c)). Mr.

Gaines, however, has made no effort to show that process was timely served to a

proper party, and the government has not conceded that Mr. Gaines’s amended

complaint would relate back. 

-4-

must set forth the date of deposit and state that first-class postage has been

prepaid.” Price, 420 F.3d at 1164. Here it is undisputed that Mr. Gaines

submitted a proper declaration indicating that he gave a copy of the complaint to

prison officials on February 20, 2006, which was barely within the six month

window for filing under the FTCA. However, he neglected to state that first class

postage was prepaid, a requirement that our cases have rigidly enforced. See

Price, 420 F.3d at 1166 (holding that a complaint was untimely because the

plaintiff had failed to comply with the prison mailbox rule). Thus, Mr. Gaines’s

filing was untimely, and the district court did not err in determining that it lacked

subject matter jurisdiction.1

 

Accordingly, we AFFIRM the district court’s decision. 

 Entered for the Court,

Robert H. Henry

Chief Circuit Judge