Strict FTCA Pre‑Suit Presentment Reaffirmed: DOJ/OIG or Attorney General Contacts Do Not Satisfy § 2675; Pro Se Hardship Is Not an Excuse

Introduction

In a nonprecedential disposition issued on December 4, 2024, the Seventh Circuit affirmed summary judgment against a federal prisoner who sued the United States under the Federal Tort Claims Act (FTCA) for an alleged assault by a Bureau of Prisons (BOP) employee. The panel—Judges Easterbrook, Kirsch, and Lee—held that the plaintiff, Braun Thompson, failed to satisfy the FTCA’s strict pre-suit presentment requirement because he did not timely submit a proper administrative tort claim to the BOP before filing suit. The decision underscores the FTCA’s demand for precise compliance: contacting the Department of Justice’s Office of Inspector General (OIG) hotline or sending letters to the Attorney General does not constitute presentment to the “appropriate Federal agency,” and a later attempt to present a claim after filing suit cannot cure the defect.

This commentary analyzes the court’s reasoning, the precedents it relied upon, and the practical implications for litigants—especially pro se prisoners—navigating FTCA claims. Though nonprecedential, the order offers clear guidance on presentment under 28 U.S.C. § 2675(a), the content requirements in 28 C.F.R. § 14.2, and the inapplicability of Prison Litigation Reform Act (PLRA) “availability” arguments to FTCA exhaustion.

Summary of the Opinion

Thompson alleged that in January 2021, after requesting protective placement in the Special Housing Unit (SHU) to avoid COVID-19 exposure, a guard “charged” at him and “force-marched” him back to his cell without his crutch, causing severe pain and aggravating a medical condition. Before suing, Thompson emailed the DOJ OIG hotline (January 2021) and mailed complaints to the Attorney General (March and May 2021). He filed his FTCA suit in January 2022. Only later—September 2022—did he mail a damages demand to the BOP (and copy the Attorney General). The government submitted evidence that no proper administrative tort claim had been received pre-suit and that the 2021 mailings were undelivered and, in any event, misdirected and noncompliant with regulatory requirements.

The district court granted summary judgment, concluding that Thompson had not exhausted administrative remedies as required by § 2675(a), and further held that the PLRA “availability” doctrine does not govern FTCA presentment. The Seventh Circuit affirmed. Relying chiefly on McNEIL v. UNITED STATES, the court reiterated that FTCA claimants must complete presentment before initiating suit, and pro se status or litigation hardships do not excuse noncompliance. The panel also emphasized that communications to the DOJ OIG or to the Attorney General do not satisfy presentment to the BOP, and that Thompson’s later, post-filing letter to the BOP could not retroactively cure a prematurely filed action. Dismissal was without prejudice, but the panel treated it as final for appellate purposes because amendment could not solve the timing defect.

Analysis

Precedents Cited and Their Role

McNEIL v. UNITED STATES, 508 U.S. 106 (1993): The Supreme Court’s cornerstone decision on FTCA presentment. McNeil holds that an FTCA action “shall not be instituted” before a claimant has presented the claim to the appropriate federal agency and received a final denial (or waited the requisite six months). Crucially, a prematurely filed FTCA suit cannot be cured by later exhaustion, and pro se status does not relax the statute’s command. The panel invoked McNeil to make dismissal “mandatory” where suit precedes presentment and to reject arguments grounded in the hardships of litigating without counsel.
Chronis v. United States, 932 F.3d 544 (7th Cir. 2019): Clarifies the regulatory content and addressee of a proper FTCA claim. Under 28 C.F.R. § 14.2(a), presentment requires “written notification of an incident” plus a demand for a “sum certain” in money damages, presented to the appropriate agency. The panel cited Chronis to underscore that Thompson’s pre-suit communications were both misdirected and lacking required information, and thus had “no effect” for § 2675(a) purposes.
Ross v. Blake, 578 U.S. 632 (2016): Defines “availability” for PLRA exhaustion. The district court noted—and the panel reinforced—that PLRA concepts like “availability” do not translate into the FTCA’s statutory scheme, which contains no comparable textual qualification. The Seventh Circuit did not definitively decide whether any equitable exception could exist under the FTCA but held that, even assuming arguendo such an exception, Thompson’s pro se difficulties would not suffice under McNeil.
Crouch v. Brown, 27 F.4th 1315 (7th Cir. 2022): Cited for appellate finality, confirming that a dismissal without prejudice is appealable when amendment cannot cure the defect—in this case, the pre-suit timing violation.
Homoky v. Ogden, 816 F.3d 448 (7th Cir. 2016): Reinforces the rule that issues not raised below are not considered on appeal. Applied here to Thompson’s new requests for declaratory and injunctive relief concerning access to a print law library and appointment of counsel.

The Court’s Legal Reasoning

The panel’s reasoning proceeded in three straightforward steps:

Statutory command and timing: Section 2675(a) states that “[a]n action shall not be instituted” unless the claimant has first presented the claim to the “appropriate Federal agency” and received a written denial. Under McNeil, compliance must precede filing; later agency contact cannot salvage a prematurely filed suit. Having filed in January 2022, Thompson could not fix the defect by sending a letter to the BOP in September 2022. Dismissal therefore was required.
Who is the “appropriate Federal agency,” and what must be presented: The regulations specify both the content and the recipient:
- Content: An “executed Standard Form 95 or other written notification of an incident,” accompanied by a claim for money damages stated in a “sum certain.” 28 C.F.R. § 14.2(a). The court found that Thompson’s pre-suit contacts with the DOJ OIG hotline and his letters to the Attorney General did not include the required information.
- Recipient: For BOP employee conduct, presentment must be made to the BOP—specifically, the BOP’s regional office. 28 C.F.R. §§ 14.2(b)(1), 543.31. Thompson’s pre-suit communications were misdirected. The government also submitted postal tracking evidence showing that his March and May 2021 mailings were never delivered and that his later attempt to contact the BOP was improperly addressed.
Because Thompson neither presented a compliant claim nor sent it to the correct agency before suing, he failed to exhaust.
No excuse for noncompliance: The court rejected arguments that limited access to legal books or unfamiliarity with computer research excused non-exhaustion. Two points were decisive:
- McNeil’s directive: The Supreme Court has made clear that pro se status and litigation hardships do not relax § 2675(a)’s pre-suit presentment requirement.
- Inapplicability of PLRA “availability”: The FTCA contains no “availability” clause, and even if some equitable exception existed, the record showed that Thompson had access to computer-based legal resources and ultimately used available tools as the case progressed; he simply did not exhaust before filing.

The panel also declined to entertain new issues raised for the first time on appeal—requests for declaratory relief concerning a print law library and for injunctive relief appointing counsel. With the dispositive timing defect resolved, the court found arguments about discovery and other procedures immaterial.

Practical and Doctrinal Impact

Although nonprecedential, the decision is a forceful reminder of the FTCA’s strict gatekeeping:

Pre-suit presentment is mandatory and time-bound. Suit must follow, not precede, proper presentment to the correct agency. A later agency submission cannot retroactively cure a premature filing. Litigants must pay attention to two separate clocks: the two-year window to present to the agency (28 U.S.C. § 2401(b)) and the six-month period after final agency denial to file suit.
Who you tell matters. Notifying the DOJ OIG hotline or the Attorney General does not constitute presentment to the BOP for alleged BOP misconduct. If a non-appropriate agency receives a facially compliant claim, regulations contemplate transfer to the appropriate agency; but misdirected, undelivered, or substantively deficient notices do not satisfy § 2675(a).
What you say matters. A presentment must include a written description of the incident and a demand for a sum certain in money damages. Failure to state a sum certain is a frequent and fatal defect.
Pro se hardship is not an FTCA excuse. Unlike the PLRA’s textually grounded “availability” limitation, the FTCA has no such provision, and McNeil forecloses using pro se status or litigation burdens to bypass § 2675(a). On these facts, the court saw no government interference preventing exhaustion.
Appellate practice point. A dismissal without prejudice can be “final” for appeal when amendment cannot cure the defect (here, the pre-suit timing violation). Parties must assess whether repleading would fix the problem before appealing.

Complex Concepts Simplified

FTCA “presentment” vs. “exhaustion”: In FTCA parlance, “exhaustion” usually refers to the statutory pre-suit presentment requirement in § 2675(a). It is not about internal prison grievances; it is about giving the relevant federal agency formal written notice of the tort claim—including a sum certain—and an opportunity to resolve it before litigation.
“Appropriate Federal agency”: This is the agency whose employee’s conduct allegedly caused the injury. For alleged wrongdoing by BOP staff, the appropriate agency is the BOP, and presentment typically goes to the BOP regional office where the incident occurred. 28 C.F.R. §§ 14.2(b)(1), 543.31.
“Sum certain”: The claimant must specify the exact dollar amount of the damages sought at the administrative stage. Omitting or failing to fix a sum certain renders the claim deficient and can bar suit.
No cure by later compliance: Under McNeil, you cannot file first and “fix” presentment later. If you file early, the action must be dismissed; you may then file a new action after proper presentment and denial (or six months of agency inaction).
PLRA “availability” vs. FTCA: The PLRA requires prisoners to exhaust “available” administrative remedies before filing certain suits, and the Supreme Court has elaborated on “availability” in Ross v. Blake. The FTCA, by contrast, contains no “availability” language; courts therefore apply § 2675(a) according to its terms, without importing PLRA-style exceptions.
Nonprecedential disposition: In the Seventh Circuit, a nonprecedential order resolves the case but is not binding authority in future cases. It can, however, be informative and persuasive, particularly on well-settled points like McNeil’s pre-suit rule.

Timeline and Key Facts

January 2021: Alleged incident at FCI Marion; Thompson emails DOJ OIG hotline; later mails letters to the Attorney General (March and May 2021).
January 2022: Thompson files FTCA suit in the Southern District of Illinois.
September 2022: Thompson sends a damages demand to the BOP (copying the Attorney General)—after suit has been filed.
District Court: Grants summary judgment to the United States; finds no pre-suit presentment to BOP and rejects “availability” arguments.
Seventh Circuit: Affirms; dismissal without prejudice treated as final because amendment cannot cure the timing defect.

Practice Pointers for FTCA Claimants (Especially Prisoners)

Use Standard Form 95 (SF-95) or a written submission containing all required elements, including a sum certain.
Send presentment to the appropriate agency—in BOP cases, the relevant BOP regional office—not to OIG or the Attorney General.
Keep proof of receipt (e.g., certified mail tracking). Undelivered or misaddressed mailings do not count.
Do not file suit until either the agency issues a written denial or six months pass without a decision (deemed denial).
Track deadlines: present within two years of accrual; after denial, sue within six months. A premature suit does not toll the clock.
Do not assume pro se status or limited library access excuses noncompliance; courts will apply McNeil strictly.

Conclusion

The Seventh Circuit’s decision in Thompson reinforces a bedrock FTCA rule: pre-suit presentment to the appropriate agency, complying with 28 C.F.R. § 14.2’s content requirements, is a mandatory prerequisite to filing in federal court. Communications with the DOJ OIG or the Attorney General do not satisfy presentment to the BOP, and a later attempt to present after suit is filed cannot cure the temporal defect. McNeil forecloses reliance on pro se hardships as an excuse; the PLRA’s “availability” framework does not govern FTCA claims. While nonprecedential, the disposition offers clear, practical guidance and a cautionary tale for FTCA litigants: identify the correct agency, include a sum certain, document delivery, and file suit only after the administrative process has run its course.