                                                                NOT PRECEDENTIAL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.
          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
                                                2
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).
                                              3
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.
                                              4
For the foregoing reasons, we will affirm the District Court’s judgment.




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