Antoine Echols v. United States

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No. 96-2071
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Antoine Echols, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
United States of America, * [UNPUBLISHED]
*
Appellee. *
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Submitted: December 6, 1996
Filed: December 12, 1996
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Before FAGG, WOLLMAN, and MURPHY, Circuit Judges.
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PER CURIAM.
Antoine Echols appeals the district court's1 dismissal of his
legal malpractice claim against his federal public defender
pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C.
§§ 2671-80. We affirm.
A party pursuing a tort claim under the FTCA must present the
claim in writing to the appropriate administrative agency within
two years of the claim's accrual. 28 U.S.C. § 2401(b). The
failure to comply with the presentment requirement bars the filing
of the action in district court. Id. § 2675(a). Although Echols,
as a pro se litigant, is entitled to have his complaint construed
liberally, see Selland v. United States, 966 F.2d 346, 347 n.2 (8th
1
The Honorable Catherine D. Perry, United States District
Judge for the Eastern District of Missouri.
Cir. 1992) (per curiam), cert. denied, 507 U.S. 923 (1993), we note
that Echols not only concedes that he did not file an
administrative claim, but also argues on appeal that exhaustion is
not necessary. Therefore, the district court lacked jurisdiction
because Echols did not file an administrative claim. See Farmers
State Sav. Bank v. Farmers Home Admin., 866 F.2d 276, 277 (8th Cir.
1989) (exhaustion is jurisdictional prerequisite). As to the sua
sponte nature of the district court's dismissal, the failure to
first provide Echols with formal notice was not reversible error
based on Echols's argument on appeal that he did not file a claim
and that exhaustion of administrative remedies was not necessary.
See Smith v. Boyd, 945 F.2d 1041, 1043 (8th Cir. 1991) (failure to
give prior notice and opportunity to respond not reversible error
when patently obvious plaintiff could not prevail on facts alleged
in complaint).
Accordingly, we hold that the district court's dismissal of
the complaint was correct, but that it should have been for lack of
jurisdiction. See, e.g., Melo v. United States, 505 F.2d 1026,
1030 (8th Cir. 1974) (amending dismissal order to clarify dismissal
was for want of jurisdiction); see also United States v. Abadia,
949 F.2d 956, 958 n.12 (8th Cir. 1991) (court may affirm on any
ground supported by the record), cert. denied, 503 U.S. 949 (1992).
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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