Tort Claims

By Elizabeth Franklin-Best, Esq., and Christopher Zoukis, JD, MBA

If someone in federal prison is hurt, or their property is lost or destroyed, because a Bureau of Prisons employee was negligent, the claim against the United States runs through the Federal Tort Claims Act — and it starts with an administrative claim on a Standard Form 95, filed with the BOP regional office for the region where the injury happened, within two years of when the claim accrued. That two-year deadline is statutory and unforgiving: 28 U.S.C. § 2401(b) says a tort claim against the United States “shall be forever barred” unless presented within it.

Three things about this process surprise almost everyone. A tort claim is not a BP-9 — it does not go through the prison grievance ladder and the institution will not accept it. An injury that happened on a work assignment is not an FTCA claim at all; it goes to a different system with a different form and a different clock. And the FTCA has now become, for most purposes, the only damages route against the federal government for what happens in a federal prison, because the Supreme Court has narrowed constitutional damages suits against individual federal officers almost to the vanishing point.

The federal tort claim, at a glance
Statute	28 U.S.C. § 1346(b) and 28 U.S.C. §§ 2671–2680
Regulation	28 C.F.R. part 14 (government-wide); 28 C.F.R. part 543, subpart C (BOP)
Bureau policy	Program Statement 1320.07, Federal Tort Claims Act, effective August 1, 2024 — rescinded PS 1320.06 (Aug. 1, 2003)
Form	SF-95, Claim for Damage, Injury, or Death — a General Services Administration form, not a BOP form
Where it is filed	The BOP regional office for the region where the loss or injury occurred — not the institution
Deadline to present the claim	2 years from accrual — 28 U.S.C. § 2401(b)
Deadline to sue after denial	6 months from the date the denial was mailed by certified or registered mail — § 2401(b)
Agency decision window	Generally 6 months from presentment; after that you may treat the claim as denied — PS 1320.07 at p. 7
Who decides	Regional Counsel, or the Associate General Counsel, Litigation Branch for Central Office claims — PS 1320.07 at p. 6
Defendant in court	The United States — not the warden, not the officer, not the BOP

Currency: PS 1320.07 verified against the Bureau’s own policy set; statutory text verified against the U.S. Code as of July 2026.

What the Federal Tort Claims Act actually covers

The FTCA is a limited waiver of the federal government’s sovereign immunity. 28 U.S.C. § 1346(b)(1) gives the federal district courts exclusive jurisdiction over claims against the United States “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”

That last clause is the whole architecture of an FTCA case, and it is why these claims are harder than they look. The United States is liable only where a private person would be liable, and only under the law of the state where the negligence happened. A claim arising at a federal prison in Texas is measured against Texas negligence law; the same facts at a federal prison in Pennsylvania are measured against Pennsylvania law. Duty, breach, causation, damages, comparative fault, expert-affidavit requirements in medical cases — all of it comes from state law, applied to a federal defendant.

That federal prisoners can use this statute at all was settled in United States v. Muniz, 374 U.S. 150 (1963), where the Supreme Court held that suits by federal prisoners “for personal injuries sustained during confinement in a federal prison, by reason of the negligence of a government employee” are within the purview of the Act. Muniz also identified the federal source of the duty owed: the Bureau’s obligation to provide for the “safekeeping, care, and subsistence” and “protection” of federal prisoners under 18 U.S.C. § 4042 is, in the Court’s words, “fixed by 18 U.S.C. § 4042, independent of an inconsistent state rule.” So state law supplies the standard of care, but § 4042 supplies the duty, and a state rule immunizing jailers does not immunize the United States.

The Bureau’s own policy states the scope in one sentence: under the FTCA, “the Government may be liable for the negligent or wrongful acts or omissions of its employees while acting within the scope of their employment” (PS 1320.07 at p. 1). A Program Statement is agency policy, not law — but this one tracks the statute, and its procedural sections are how the Bureau will actually process your claim.

The kinds of claims that arise in federal prisons are recognizable: failure to provide adequate medical care, failure to protect from an assault by another incarcerated person, unsafe conditions causing a fall, negligent handling or loss of property, negligent dental care, medication errors. Each of them still has to be built as a state-law negligence claim.

The two deadlines that end an FTCA claim

More federal tort claims are lost to these two dates than to anything about the merits.

Stage	Deadline	Runs from	Authority
Present the administrative claim to the agency	2 years	The date the claim accrued	28 U.S.C. § 2401(b) — “shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues”
File suit in district court after a written denial	6 months	The date of mailing, by certified or registered mail, of the notice of final denial	§ 2401(b) — “or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency”
File suit when the agency has not answered	Any time after 6 months from presentment	The presentment date	PS 1320.07 at p. 7: “If you have not received a letter either proposing a settlement or denying your claim within six months after the date your claim was presented, you may assume the claim is denied.”

Four points that follow from that table:

Presentment is not filing suit. You cannot go straight to court. The administrative claim must be presented first, and the two-year clock is on presentment, not litigation.

The six-month suit clock runs from the mailing date, not the date you received the letter. PS 1320.07 at p. 7 requires all denial letters to go out by certified or registered mail and to state that the claimant “may file suit in the appropriate District Court within six months after the mailing of the denial.” Keep the envelope.

The “presentment date” is defined, and it is generous about routing errors. PS 1320.07 at p. 4 defines it as “the date your submission containing all required signatures and necessary information is first received by either the Department of Justice or an office of the Bureau of Prisons.” A claim transferred between Bureau offices “will be considered filed with that office when the claim was received by the first appropriate agency office,” and the policy gives a worked example: a claim received by the Department of Energy on October 12, transferred to DOJ October 19, to the BOP Central Office October 24, and to a regional office November 1, is treated as received October 19 — the date it first reached the correct agency.

When a claim “accrues” is a legal question, not an obvious one. In an ordinary injury case it is usually the date of the injury. In medical cases and in cases involving latent harm it can be later. Do not assume; that determination belongs to a lawyer working from your records.

Applied Insight — Christopher Zoukis, JD, MBA, Managing Director: The most damaging thing we see is a client who spent eighteen months running BP-9s, BP-10s and BP-11s about an injury, believing that was the tort claim. It was not. The administrative remedy ladder and the SF-95 are separate systems with separate clocks, and the two-year FTCA deadline does not pause while a grievance is pending. If the loss involves an injury or property, we get the SF-95 presented first and let the grievance run alongside it.

Filing the SF-95: what has to be on it and where it goes

The form is the SF-95, Claim for Damage, Injury, or Death, published by the General Services Administration, not by the Bureau. PS 1320.07 at p. 3 directs that BOP employees will provide it, and that people in custody “should obtain forms from employees at the institution where they are incarcerated.” It is also available publicly from the GSA forms library, which means a family member or lawyer on the outside can obtain and complete it — a meaningful difference from the BP-9, BP-10 and BP-11 forms, which the Bureau does not publish at all.

The Bureau’s policy also states that a claim may be filed without the SF-95, provided it contains the required content. PS 1320.07 at pp. 3–4 lists it:

Required on an administrative tort claim	Note
Date of the incident
Place where the incident occurred
Explanation of events
Names of witnesses
Description of injury or property loss
Date of claim
Sum certain claimed	Required. A specific dollar figure
Claimant’s signature	Required. Must be the claimant, or a representative with written authority

The two items marked required are the only two that can get a claim rejected outright. PS 1320.07 at p. 5 is explicit: “The Bureau may reject or not accept a claim only if a claimant or representative (1) fails to sign the administrative claim, or (2) fails to provide a sum certain for damages. Claims that are unclear, illegible, or lack allegations of federal involvement should be denied instead of rejected.” That distinction matters. A rejection is a non-filing — the clock never stopped. A denial is an adverse decision that starts your six-month suit window. A claim killed for the want of a dollar figure or a signature is the worst outcome available, because it does not even generate an appealable denial.

Where it goes is the other trap. 28 C.F.R. § 543.31(c), reproduced at PS 1320.07 at p. 4, directs the claim to “the regional office in the region where the loss or injury occurred,” or to the Office of General Counsel in the Central Office if it happened there. The Bureau’s implementing instruction is blunt: “Institution employees will not accept claims submitted at institutions but will transfer the claims to the correct Regional Office or the Central Office, depending on where the loss or injury occurred.” Handing an SF-95 to a counselor is not presentment. Our directory of BOP regional offices lists the six regional offices and the Central Office.

Anyone may file — “inmate, employee, visitor, or private citizen” (PS 1320.07 at p. 3). A representative may file on the claimant’s behalf with a written, signed authorization, and a representative may file a wrongful-death claim. Note the consequence the policy attaches: “If you hire a lawyer or authorize a representative to act on your behalf, the agency will correspond only with that representative.” A person in custody who files a claim also has an affirmative duty to notify the processing office of any transfer or release, and to keep the agency updated on their address.

What happens after you present a claim

The claim is date-stamped on receipt in Regional Counsel or the Office of General Counsel, “whether or not the claims are received in the proper office” (PS 1320.07 at p. 4). A properly presented claim generates an acknowledgment letter with the presentment date and a claim number; use that number on everything afterward.

The regional office then refers the claim to the institution for investigation. Under PS 1320.07 at pp. 5–6, the warden designates employees to investigate and prepare a report, which goes to Regional Counsel with the warden’s recommendations. The report must include:

• the SF-95 or other written notification;
• background materials — witness statements, photographs, medical case descriptions as necessary;
• relevant administrative remedy requests; and
• the warden’s conclusions and recommendations.

That third bullet is the practical reason to run a grievance alongside a tort claim even though exhaustion is not required for the FTCA: the Bureau’s own investigation file will include your administrative remedy filings. A contemporaneous, specific BP-9 about the same facts becomes part of the record the decision-maker reads.

Special handling applies in three categories. Medical malpractice claims are reviewed by institution Health Services staff, who must supply “a clear case description… including a history of all relevant medical treatment, medications, and services rendered,” plus any medical justification for the treatment given. Motor vehicle accidents get a timely Safety Department investigation with photographs. Claims by people in the Witness Security Program are routed through the Inmate Monitoring Section in the Central Office.

Settlement authority is capped, and the numbers are public. The Director is authorized to settle administrative tort claims that do not exceed $50,000 under 28 C.F.R. § 0.172, redelegated to the General Counsel and then to Regional Counsels and the Associate General Counsel, Litigation Branch. PS 1320.07 at p. 7 sets the mechanics: Regional Counsel and the Associate General Counsel have settlement authority up to $50,000; above that, counsel must request authority from the General Counsel before negotiating; and a settlement exceeding $50,000 must be submitted by the General Counsel to the Torts Branch, Civil Division, U.S. Department of Justice for final approval — and the Torts Branch “will not consider requests for settlement authority without a final settlement agreement signed by the claimant and claimant’s attorney if claimant is represented.” Settlements over $2,500 are paid by the Judgment Fund Branch at the Treasury; $2,500 or less is paid from the funds of the institution where the claim arose.

Accepting a settlement ends everything. PS 1320.07 at p. 7: “If you accept a settlement, you give up your right to bring a lawsuit against the United States or against any employee of the government whose action or lack of action gave rise to your claim.” That is a release of both the government and the individual staff members. It should not be signed without advice.

If the claim is denied or the offer is unsatisfactory, you may ask the Bureau in writing to reconsider in the administrative stage, with additional evidence — or file suit. Requesting reconsideration is not free of risk to the calendar; how it interacts with the six-month suit deadline is a question for counsel on the specific dates.

The work-injury trap: if you were hurt on a job, this is not your claim

This is the single most consequential thing on this page, because the mistake is common and it is usually fatal.

An injury sustained on a prison work assignment is not compensable under the FTCA. PS 1320.07 at p. 1 states it in the second paragraph of the policy: “Inmate work-related claims are not compensable under the FTCA’s provisions. Such claims should be processed under the Inmate Accident Compensation Act, 28 C.F.R. §§ 301.301 to .318.”

The Supreme Court settled this in United States v. Demko, 385 U.S. 149 (1966), holding that a federal prisoner’s right to compensation under 18 U.S.C. § 4126 for injuries suffered in prison employment “was his exclusive remedy against the Government barring him from any suit under the Federal Tort Claims Act.” The Court reasoned from the ordinary logic of workers’ compensation: “where there is a compensation statute that reasonably and fairly covers a particular group of workers, it presumably is the exclusive remedy to protect that group.” Demko expressly distinguished Muniz, noting that neither prisoner in Muniz was covered by the prison compensation law.

The inmate accident compensation system has its own form and its own timetable, and the timetable is unusual — it is keyed to release, not to the injury:

Inmate accident compensation
Form	FPI Form 43, Inmate Claim for Compensation on Account of Work Injury
Normal filing window	No more than 45 days before the release date, and no fewer than 15 days before it — 28 C.F.R. § 301.303(a)
Submitted to	The Institution Safety Manager or Community Corrections Manager
If circumstances prevented that	A claim may be accepted up to 60 days following release — § 301.303(f)
Outer limit	A claim for impairment may be accepted up to one year after release, for good cause shown — § 301.303(f)
Late claims go to	Claims Examiner, Federal Bureau of Prisons, 320 First Street NW, Washington, DC 20534
Claimant’s ongoing duty	Keep the Claims Examiner advised of your current address in writing throughout — § 301.303(e)

Two consequences follow that are easy to miss. First, the compensable event under this system is a residual physical impairment that still exists at release — which is why the claim is filed at the end of the sentence rather than at the time of the injury. Second, missing that window does not leave the FTCA as a fallback, because Demko holds the compensation system is exclusive for covered work injuries. The practical instruction is to document the injury when it happens — medical records, the accident report, witness names — and calendar the pre-release filing window years in advance.

Whether a particular injury was “work-related” is itself contested territory, and the answer determines which system you are in. That is a legal judgment, not a self-assessment. See our pages on inmate work assignments and UNICOR for how the job assignments themselves work.

Lost or damaged personal property is a third, separate system

If the loss is personal property rather than injury, there is a good chance the FTCA is not the right instrument either.

PS 1320.07 at p. 3 provides that “[c]laims for damage to, or loss of, an inmate’s privately owned property is considered for settlement under 31 U.S.C. § 3723,” the small-claims provision for privately owned property damage or loss, and routes the reader to Program Statement 5580.09, Inmate Property Claims. This was a deliberate change in the 2024 edition: the Summary of Changes at p. 2 records that it “[a]dds guidance claims regarding inmates’ privately owned property will be considered for settlement under 31 U.S.C. § 3723” and “[r]emoves the reference to the depreciation guidelines because inmate property claims will be processed under 31 U.S.C. § 3723.”

Our explainer on that policy is at inmate property claims, with the program statement broken out at Program Statement 5580-09. What property may be possessed in the first place is governed separately, at inmate personal property.

There is one FTCA-side wrinkle worth knowing about property that is seized. 28 U.S.C. § 2680(c) excepts from the FTCA any claim arising from “the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer” — a broad exception. Congress carved a narrow exception back in, for property seized for non-criminal forfeiture where the claimant’s interest was not forfeited, was not remitted or mitigated, and the claimant was not convicted of a crime for which the interest was subject to criminal forfeiture. Those conditions are cumulative, and in a case that ended in a federal conviction they will rarely all be satisfied.

The discretionary-function exception, and why it defeats many prison claims

The waiver of immunity has a list of exceptions at 28 U.S.C. § 2680, and the first one is the most important in prison litigation.

Section 2680(a) withdraws the waiver for “[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”

Read that last clause again. Where the exception applies, it applies even if the discretion was exercised badly. Muniz itself flagged this as the government’s principal defense in prisoner cases.

The practical significance in a BOP case is that an enormous amount of what the Bureau does is discretionary by design. Classification, housing assignment, designation, staffing levels, budget allocation, whether to place someone in protective custody, how to conduct security — all of these involve judgment calls of the kind courts have often treated as protected. What tends not to be protected is conduct governed by a specific, mandatory directive that left the employee no room for choice. This is why the precise wording of the Program Statement, the regulation or the institution supplement that was violated is often the most valuable fact in the file: a directive that says staff shall do something is a different case from one that says staff may.

How any given circuit draws that line is a matter of case law that varies, and it is exactly the kind of question that requires research on the specific facts and the specific circuit. This page does not attempt to predict it.

Intentional torts, and the law-enforcement proviso

Section 2680(h) removes from the FTCA “[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” Standing alone, that would bar most claims arising from staff use of force.

It does not stand alone. The same subsection contains a proviso: “with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising… out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution.” Six of the eleven listed torts come back, but only as to that class of officer, and only for claims arising on or after the proviso’s 1974 enactment.

Note precisely what does and does not return. Assault, battery, false imprisonment, false arrest, abuse of process and malicious prosecution are restored. Libel, slander, misrepresentation, deceit and interference with contract rights are not — they remain barred against everyone.

The statute defines the covered class: “‘investigative or law enforcement officer’ means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.” Whether a particular Bureau employee falls inside that definition is a live question that has generated substantial litigation, and the answer can turn on the employee’s actual authority rather than their job title. Anyone considering a claim of this kind needs the analysis done on the specific facts and the specific circuit.

Note also that Muniz, decided in 1963, contains a sentence stating flatly that the government “is not liable for the intentional torts of its employees” under § 2680(h). That was accurate when written. The law-enforcement proviso was added eleven years later. It is a good example of why a 1963 opinion should not be quoted for the current content of a statute that has since been amended.

Why the FTCA now carries almost all the weight

For decades the standard prison-conditions damages case had two tracks: an FTCA claim against the United States for negligence, and a Bivens claim against individual federal officers for constitutional violations. The second track has narrowed dramatically.

Ziglar v. Abbasi, 582 U.S. 120 (2017) established the modern framework. A Bivens claim presents a “new context” whenever the case “is different in a meaningful way from previous Bivens cases decided by this Court” — including differences in the rank of the officers involved, the constitutional right at issue, the specificity of the official action, the legal mandate the officer was operating under, or the risk of judicial intrusion into other branches. In a new context, courts must ask whether “special factors counselling hesitation” exist, and “[i]f there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy… courts must refrain from creating that kind of remedy.” Abbasi also holds that where “an alternative remedial structure” exists, “that alone may limit the power of the Judiciary to infer a new Bivens cause of action.”

Egbert v. Boule, 596 U.S. 482 (2022) tightened it further. The Court held that the two-step inquiry “often resolves to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy,” and that a court “may not fashion a Bivens remedy if Congress already has provided, or has authorized the Executive to provide, an alternative remedial structure.” It rejected case-by-case balancing, directing courts to ask “more broadly” whether judicial intrusion into a whole field might be harmful. And it held squarely that “there is no Bivens action for First Amendment retaliation.”

The consequence for someone in federal prison is direct. The Bureau operates an Administrative Remedy Program, and courts have treated the existence of that kind of grievance structure as the sort of alternative remedial scheme that counsels against implying a damages remedy. Where that reasoning applies, the FTCA — a claim against the United States for negligence, on state-law standards — is what remains. Injunctive relief and habeas remain separate routes for different problems.

None of this means a Bivens claim is never viable; it means the analysis is now demanding and highly context-specific, and it must be done by a lawyer against current authority in the governing circuit rather than assumed. See prisoner rights in federal prison for the broader landscape.

Two more limits that catch prisoners specifically

The physical-injury requirement. 28 U.S.C. § 1346(b)(2) provides that “[n]o person convicted of a felony who is incarcerated while awaiting sentencing or while serving a sentence may bring a civil action against the United States or an agency, officer, or employee of the Government, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act (as defined in section 2246 of title 18).” 42 U.S.C. § 1997e(e) imposes a parallel bar. Emotional-distress-only claims by people in custody run into this wall. What counts as a sufficient “physical injury” is contested and circuit-dependent.

Exhaustion of administrative remedies is a separate question from presentment. The Prison Litigation Reform Act’s exhaustion requirement at 42 U.S.C. § 1997e(a) governs actions “with respect to prison conditions.” The FTCA has its own mandatory administrative presentment requirement. These are two different statutes with two different procedures, and whether the PLRA’s requirement attaches to a particular FTCA claim is a legal question that has divided courts. The safe course, and the one we take, is to run both: present the SF-95 within the two-year window and file the administrative remedy about the same facts, which is separately useful because the Bureau’s own investigation file will include it.

Where people get stuck filing a prison tort claim

“I filed a BP-9 about my injury — isn’t that the claim?” No. 28 C.F.R. § 542.10(c) routes tort claims out of the Administrative Remedy Program to “statutorily-mandated procedures,” and the two-year FTCA presentment clock runs regardless of what the grievance is doing. File both.

The institution refused the SF-95. That is correct procedure, not obstruction. PS 1320.07 at p. 4 states that institution employees will not accept claims but will transfer them to the correct office. The claim belongs at the regional office for the region where the injury happened.

The claim came back “rejected” rather than denied. Check for the two rejectable defects: no signature, or no sum certain. PS 1320.07 at p. 5 limits rejection to those two grounds. Fix it and resubmit immediately — a rejection did not stop the two-year clock.

Six months have gone by with no answer. Under PS 1320.07 at p. 7 you may assume the claim is denied and proceed to district court. That is a decision to make with counsel, because filing suit prematurely and filing suit too late are both fatal in different ways.

The injury happened on a work detail. Go to inmate accident compensation, 28 C.F.R. part 301, FPI Form 43, filed in the 45-to-15-day window before release. Demko forecloses the FTCA route for covered work injuries.

The person has been released, or transferred. PS 1320.07 at p. 4 imposes a duty to notify the processing office of a transfer or release and to keep the address current. A claim that becomes unreachable by mail is a claim that gets denied without a real review. Note also that the Administrative Remedy Program remains open to former prisoners for issues arising during confinement, under 28 C.F.R. § 542.10(b).

How our firm approaches a federal tort claim

Elizabeth Franklin-Best, P.C. is a boutique federal criminal defense and appellate firm founded in 2019, running a national federal practice on an intentionally small caseload. On a potential tort claim the first work is diagnostic: identifying which of the three systems the loss actually belongs in — FTCA, inmate accident compensation, or property claim — because filing in the wrong one wastes the only deadline that matters. From there it is the state negligence law of the place the injury happened, the specific Program Statement or regulation that was departed from, the medical and institutional records, and the § 2680 exceptions that the government will raise.

We defend people in the federal system; we do not act for the Bureau or its employees. Legal representation is provided by Elizabeth Franklin-Best and the firm’s attorneys. Elizabeth is admitted to the U.S. Supreme Court and twelve of the thirteen U.S. Courts of Appeals — every regional circuit (1st–11th) plus the D.C. Circuit — and has been admitted pro hac vice in federal courts from Montana to Florida.

If a loved one has been injured in federal custody, the most useful thing you can do today is preserve the record: the date, the location, the names of witnesses and staff, any incident or accident report number, and every medical request and response. Then contact the firm at (843) 620-1100 or book an initial consultation to work out which claim you actually have and how much of the two-year window is left.

This page is general information about federal procedure, not legal advice, and reading it does not create an attorney-client relationship. Whether any particular claim is timely or viable depends on facts and on the law of the state where the injury occurred.

Frequently Asked Questions About Tort Claims

Reviewed for legal accuracy by Elizabeth Franklin-Best, Esq., Principal Attorney·September 2026