549 F. App'x 231
4th Cir.
2014

Daniel BLUE, Appellant Pro Se. Jarod James Douglas, Assistant United States Attorney, Wheeling, West Virginia, for Appellee. v. UNITED STATES

United States Court of Appeals, Fourth Circuit

Before AGEE and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Daniel Blue appeals the district court‘s order accepting the recommendation of the magistrate judge and dismissing Blue‘s claim under the Federal Tort Claims Act (“FTCA“) for lack of subject matter jurisdiction. We have reviewed the record and find no reversible error. Blue v. United States, No. 5:12-cv-00121-FPS-DJJ, 2013 WL 1867093 (N.D.W.Va. May 3, 2013).* We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

AFFIRMED.

David Graham GOODMAN, Plaintiff-Appellant, v. Kenneth W. STOLLE, Sheriff/High Constable; John Doe, Sergeant/Sheriffs Deputy; John Doe, Corporal/Sheriffs Deputy; John Doe, Deputy Sheriff; Jane Doe, Deputy Sheriff, Defendants-Appellees.

No. 13-7523.

United States Court of Appeals, Fourth Circuit.

Submitted: Jan. 2, 2014. Decided: Jan. 13, 2014.

David Graham Goodman, Appellant Pro Se. Before AGEE and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Vacated and remanded by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

David Graham Goodman appeals the district court‘s order dismissing his 42 U.S.C. § 1983 (2012) complaint under Fed. R.Civ.P. 41(b) for failure to comply with its prior order. We vacate the order and remand for further proceedings.

We review the district court‘s order for abuse of discretion. See Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir.1989). A district court abuses its discretion when it relies on erroneous factual or legal premises. United States v. Thompson-Riviere, 561 F.3d 345, 348 (4th Cir.2009) (citation and quotations omitted). The district court dismissed Goodman‘s complaint because he “submitted an amended complaint but has not returned the Consent Form or exhaustion affidavit.” On appeal, Goodman claims that he submitted the consent form and exhaustion affidavit in the same envelope as the amended complaint. Upon reviewing the record, we have determined that the consent form and exhaustion affidavit are located in the record at R. 11 and R. 10-2. We thus conclude that the district court relied on an erroneous factual premise in dismissing the complaint.

Accordingly, we vacate the district court‘s order and remand for further proceedings. We deny Goodman‘s motion for a temporary restraining order. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

VACATED AND REMANDED.

Notes

*
Even assuming, as Blue suggests, that the mailbox rule applies in the FTCA context, we conclude that Blue‘s filing of his administrative claim with the wrong agency does not warrant constructive filing under the circumstances of this case. See Hart v. Dep‘t of Labor ex rel. United States, 116 F.3d 1338, 1340 (10th Cir.1997) (finding no constructive filing because claimant failed to file in a timely manner with the prior agency and the untimeliness could not be attributed to any dilatory conduct on the part of a federal agency).