The opinion of the court was delivered by: Judge McClure
Plaintiff is an inmate at the Federal Correctional Institution at Allenwood, White Deer, Pennsylvania ("FCI-Allenwood"). On October 19, 2006, plaintiff filed pro se this instant civil rights action against United States of America, Warden Karen F. Hogsten, and Special Housing Unit ("S.H.U.") Lieutenant Wolmendorf, alleging a First Amendment retaliation claim and Fifth Amendment Due Process claim. Pursuant to 28 U.S.C. § 1915, plaintiff filed two motions to proceed in forma pauperis.
In his original complaint, plaintiff alleges that he was sent to the S.H.U. for housing on August 3, 2006, and as a result had to relinquish his private property.
When he was released on August 8, 2006, plaintiff asserts unidentified officers deliberately refused to return all his property to him. Although plaintiff filed a grievance with Defendant Hogsten and Defendant Wolmendorf, he alleges they did nothing. Eventually, all of plaintiff's lost property was returned except some family photos and an album book. He vaguely claims that his property was deliberately lost out of retaliation. He requests $17,000 in money damages for his lost property. He also indicates that he has filed a Federal Tort Claims Act ("FTCA") claim for his photos and album book.
This matter was initially referred to United States Magistrate Judge Thomas M. Blewitt.
On November 29, 2006, the magistrate judge issued his thorough eighteen page report and recommendation. First, he recommends we grant plaintiff's motions to proceed in forma pauperis for this action only. Second, the magistrate judge recommends that the complaint be dismissed against all named defendants. The magistrate judge reasons that the United States of America cannot be sued in this matter. According to the magistrate judge, Hogsten and Wolmendorf also cannot be sued in connection to plaintiff's vague First Amendment retaliation claim because plaintiff asserts no facts connecting the defendants to the allegedly wrongful conduct. As for the defendants' alleged failure to prosecute plaintiff's grievance, the magistrate judge finds that the plaintiff has no Fifth Amendment Due Process right with respect to the Bureau of Prison's ("BOP") grievance policy. Finally, he recommends we not allow plaintiff an opportunity to amend his complaint, but rather direct him to file an FTCA action once he has exhausted his FTCA administrative remedies.
Plaintiff did not file objections to this report and recommendation, but instead filed an amended complaint. In his amended complaint, plaintiff drops the United States and Hogsten as defendants, but keeps Wolmendorf and adds a Correction Officer named Ditty. Plaintiff alleges Ditty was the officer who failed to give back plaintiff's property, and that Ditty did so because he is friends with S.H.U. officers who are defendants in plaintiff's other lawsuits. Plaintiff kept Wolmendorf as a defendant because another prisoner allegedly saw Wolmendorf throw plaintiff's grievance in the trash.
For the reasons set forth below, we will adopt the magistrate judge's recommendation to dismiss the original complaint as against all defendants and to grant plaintiff's motions to proceed in forma pauperis for this action only. In addition, we will dismiss plaintiff's amended complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on which relief may be granted. We will refuse to allow the plaintiff the right to amend further because filing a second amended complaint would be futile. We also refuse to direct the plaintiff to file an FTCA action once he exhausts his administrative remedy.
I. RELEVANT LEGAL STANDARD
A district court is required to review de novo those portions of a magistrate judge's report to which objections are made. L.R. 72.3. When no objections are made, the district court may accept the report without review. Thomas v. Arn., 474 U.S. 140, 149 (3d Cir. 2000). According to the Third Circuit, however, "the better practice is to afford some level of review to dispositive legal issues raised by the report." Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987).
Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), the court may at any time dismiss a section 1915 complaint "that fails to state a claim on which relief may be granted." A court may refuse to allow a party to amend its complaint if the court concludes doing so would be futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 111 (3d Cir. 2002). Amending a complaint is deemed futile if the court concludes a plaintiff ...