Gene Jirak v. Warden J. A. Terris ( 2016 )

United States Court of Appeals
For the Eighth Circuit
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No. 15-3815
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Gene Jirak
lllllllllllllllllllll Plaintiff - Appellant
v.
Warden J.A. Terris; Assistant Warden True; CMS Supervisor Wolfe; Safety
Supervisor Kalista; Unit Manager Stoner; Dr. Malatinsky, Clinical Director HSD;
Director Charles Samuels; Attorney General Eric Holder, Department of Justice;
Unit Manager Arturo Aviles, in their individual and professional capacities
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the District of South Dakota - Sioux Falls
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Submitted: September 6, 2016
Filed: September 9, 2016
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Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
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PER CURIAM.
Former federal prisoner Gene Jirak brought this pro se action asserting claims
under the Eighth Amendment, the Federal Tort Claims Act (FTCA), and other federal
laws, based on allegations related to his past federal confinement. He appeals after
the district court1 dismissed his complaint for failure to exhaust administrative
remedies under the Prison Litigation Reform Act (PLRA), and denied his motion to
alter or amend judgment under Federal Rule of Civil Procedure 59(e).
We conclude, after careful review, that the dismissal of the complaint was
warranted. See 28 U.S.C. § 2675(a) (claimant must present claim to appropriate
federal agency and have claim denied in writing before filing FTCA complaint); 42
U.S.C. § 1997e(a) (under PLRA, prisoner must exhaust available administrative
remedies before bringing federal prison-conditions claim); see also 18 U.S.C. § 4126
(establishing fund to compensate federal inmates who have suffered work injuries);
United States v. Demko, 385 U.S. 149, 151-54 (1966) (§ 4126 is exclusive remedy for
federal inmates’ work-related injuries, and FTCA actions which seek recovery for
such injuries are barred); King v. Iowa Dep’t of Corr., 598 F.3d 1051, 1052 (8th Cir.
2010) (de novo standard of review). We further conclude that the district court did
not abuse its discretion in denying the Rule 59(e) motion, given that the defendants
had been granted an extension of time to respond to Jirak’s complaint and therefore
were not in default. See Fed. R. Civ. P. 55(a) (when party against whom judgment or
relief is sought fails to plead or otherwise defend, clerk must enter party’s default);
United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006)
(standard of review for denial of Rule 59(e) motion).
We affirm, but we modify the dismissal to be without prejudice. See, e.g.,
Langford v. Norris, 614 F.3d 445, 457 (8th Cir. 2010) (dismissals for failure to
exhaust under § 1997e(a) must be without prejudice).
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1
The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota.
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