Frederick Banks v. Art Roberts

DLD-404 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-2793
___________
FREDERICK BANKS,
Appellant,
v.
ART ROBERTS; JEFF OHARA; MR. FOREMAN; MR. RAPP;
CAMERON LINDSEY; DIRECTOR, FEDERAL BUREAU OF PRISONS;
FEDERAL BUREAU OF PRISONS; G. COMPTON
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civ. No. 06-cv-01232)
District Judge: Honorable Christopher C. Conner
____________________________________
Submitted for Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
September 27, 2007
Before: BARRY, AMBRO and FISHER, CIRCUIT JUDGES
Filed: October 19, 2007
_________
OPINION
_________
PER CURIAM
Frederick Banks appeals from the dismissal of his lawsuit alleging violations of the
Federal Tort Claims Act (“FTCA”), the False Claims Act (“FCA”), negligence and

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1A “Bivens action” is a commonly used phrase for describing a judicially created
remedy allowing individuals to seek damages for unconstitutional conduct by federal
officials. This constitutional tort theory was set out in Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
2Since the filing of the instant action, Banks has been transferred from USP-
Canaan and now resides at Butner Low Security Correctional Institution in Yazoo City,
Mississippi.
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Bivens claims,1 for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure. Because Banks’ appeal presents no substantial question, we will
summarily affirm. LAR 27.4; I.O.P. 10.6.
Banks’ claims are premised on conditions of incarceration and alleged actions by
the Federal Bureau of Prisons (“BOP”) and prison officials at the Canaan Federal Prison
Camp in Waymart, Pennsylvania (“FPC Canaan”) (collectively “defendants”).2 Banks
charges that defendants “refused to pay him the federal minimum wage even though he is
a federal employee and is entitled to be payed [sic] minimum wage.” (Amend. Compl.
pp. 1-2.) Banks also complains of dirty showers, expired food, overcrowding and the
denial of postage for mailing correspondence and filings to the court and various
administrative agencies. The District Court granted defendants’ motion to dismiss based
on Banks’ failure to properly exhaust available administrative remedies relating to his
Bivens claims, and for failure to establish claims under the FTCA and the FCA. Banks
filed a timely notice of appeal.

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3According to an examination of defendants’ exhibits, the District Court accurately
set forth the time line of Banks’ requests for administrative remedies with regard to the
issues alleged in his complaint.
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A. Bivens Claims
The Prison Litigation Reform Act of 1995 (“PLRA”) requires that inmate-
plaintiffs exhaust all administrative remedies prior to filing suit in federal court. Booth v.
Churner, 532 U.S. 731, 739 (2001); see also Nyhuis v. Reno, 204 F.3d 65, 74 (3d Cir.
2000). Although the record demonstrates that Banks filed many requests for
administrative remedies on various topics corresponding to his complaints in the instant
suit, the exhibits supplied by defendants also show that Banks failed to appeal the
resulting decisions with respect to his Bivens claims prior to filing his claim in federal
court and, therefore, failed to comply with the PLRA’s mandatory exhaustion
requirement.3
With respect to his wage complaint, Banks does not dispute the veracity of the
dates evidenced in defendants’ exhibits. Rather, he contends that he was excused from
the statute’s exhaustion requirement because his exhaustion attempts were futile.
(Amend. Compl. at 1.) This argument fails under this Court’s bright line rule that
“completely precludes a futility exception to [the PLRA’s] mandatory exhaustion
requirement.” Nyhuis, 204 F.3d at 71.
Banks also argues that the exhaustion requirement is satisfied by his “good faith
effort” to “continue to file the administrative remedies during the pendency of this action

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and notify the Court with a supplement or notice once the futile exhaustion becomes
finalized by filing [administrative remedies].” (Amend. Compl. at 1-2.) This effort,
however, is not sufficient to satisfy the exhaustion requirement. A prisoner may not
satisfy the PLRA’s exhaustion requirement by exhausting administrative remedies after
initiating suit in federal court. See Johnson v. Jones, 340 F.3d 624, 627-28 (8th Cir.
2003) (collecting cases and holding that “the district court must look to the time of filing,
not the time the district court is rendering its decision, to determine if exhaustion has
occurred. If exhaustion was not completed at the time of filing, dismissal is
mandatory.”).
Because Banks did not wait to file his complaint until after he had received final
determinations from his administrative filings and completed the appeal process as to
those determinations, Banks has not met the exhaustion requirements of the PLRA and
we must affirm the dismissal of his Bivens claims on that basis. See Johnson, 340 F.3d at
627. To the extent that Banks’ allegation that he was denied postage can be separately
construed as a violation of his constitutional right to access the courts, we note that this
issue is being adjudicated in Banks v. One or More Unknown Confidential Informants of
Fed. Prison Camp Canaan, et al., Civil No. 1:06-cv-1127. We therefore will affirm the
District Court’s dismissal of that claim based on its redundancy to identical claims
presented here.

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B. FTCA Claim
The FTCA waives the sovereign immunity of the United States for torts of federal
employees acting within the scope of their employment “under circumstances where the
United States, if a private person, would be liable to the claimant in accordance with the
law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). The
FTCA contains a jurisdictional bar that requires a plaintiff to file his or her claim with the
appropriate federal agency and receive a final denial by that agency before filing a
complaint in federal court. See 28 U.S.C. § 2675(a).
Here, although Banks filed an administrative tort claim with the BOP and received
a determination, his claim alleged a violation of the right to equal treatment and equal
treatment in accordance with due process. The claim did not include an allegation of
negligence and thus the BOP was not put on notice of Banks’ complaint. Consequently,
the agency was unable to make a final determination with regard to that issue as required
by 28 U.S.C. § 2675(a). Because Banks has failed to meet the administrative
prerequisites for filing a claim for negligence under the FTCA, we agree that the District
Court was barred from considering his negligence claim on the merits. See Sprecher v.
Graber, 716 F.2d 968, 973 (2d Cir. 1983).
Defendants concede that Banks exhausted his FTCA claim with regard to his claim
for unequal treatment and, therefore, the District Court accepted jurisdiction and rejected

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4The District Court correctly construed Banks’ negligence claim under the FTCA,
noting that it could not consider his negligence claim under Bivens, because negligence is
not the basis of a constitutional claim. See Bivens, 403 U.S. at 392 (recognizing an
implied private action for damages against federal officers alleged to have violated a
citizen’s constitutional rights).
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his claim on the merits.4 As the District Court recognized, the FTCA authorizes suits
only against the United States itself, not individual defendants or agencies. 28 U.S.C.
§ 2680(a). We agree with the District Court’s determination that Banks has failed to state
a claim because his suit fails to name the United States as a defendant. 28 U.S.C.
§ 2679(b)(1). We also agree that amending the complaint to name the United States
would be futile because Banks claims damages arising from alleged constitutional
violations by individual federal defendants. Such actions cannot be asserted against the
United States or its agencies. See F.D.I.C. v. Meyer, 510 U.S. 471, 485 (1994).
C. The False Claims Act
The False Claims Act, 31 U.S.C. § 3729, permits an action against any person who
presents a false or fraudulent claim for payment or approval to an officer or employee of
the United States government. We will affirm the dismissal of Banks’ FCA claim.
Banks claims a violation of the FCA because he was not paid the minimum wage
afforded civilian non-prisoner federal employees. He therefore argues that defendants are
“deceiving the United States.” (Amend. Compl. at 3.) However, as the District Court
correctly observed, prisoners that perform intra-prison work are not entitled to
compensation commensurate with the federal minimum wage requirements set forth

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under the Fair Labor Standards Act. Tourscher v. McCullough, 184 F.3d 236, 243 (3d
Cir. 1999). Banks has not alleged any facts that suggest that the work he performs is not
intra-prison and therefore has identified no basis for his claim for compensation at the
federal minimum wage rate.
D. Conclusion
For the stated reasons, we conclude that Banks’ appeal presents us with no
substantial question. See L.A.R. 27.4; I.O.P 10.6. Accordingly, we will summarily
affirm the District Court’s order.

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