The opinion of the court was delivered by: McLAUGHLIN, Sean J., District J.
This civil lawsuit arises out of injuries which Plaintiff claims he suffered due to inadequate medical treatment for a broken nose while incarcerated at FCI McKean.*fn1
Plaintiff's complaint originally asserted claims against the United States and/or various individual Defendants -- persons associated with FCI McKean either as prison officials or professionals who provide health care services to the inmate population -- for the alleged violations of his Eighth Amendment rights, his Fifth Amendment Due Process rights, and his rights under the Federal Torts Claims Act ("FTCA"), 28 U.S.C. §§2671 et seq. Plaintiff's civil complaint was received by the Clerk of Court on May 8, 2006 and was referred to Chief United States Magistrate Judge Susan Paradise Baxter for report and recommendation in accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates.
On November 21, 2006, the Defendants filed a partial motion to dismiss the complaint or, in the alternative, partial motion for summary judgment . In that motion, the Defendants argued, inter alia, that: (i) Plaintiff had failed to state a viable Eighth Amendment Bivens*fn2 claim with regard to Defendants' treatment of his fractured nose; (ii) Plaintiff's FTCA claim against the individual Defendants should be dismissed because they are not proper parties to such a claim; (iii) the United States cannot be held liable for the alleged negligence of Defendant Mark Welch because he is a private medical practitioner not employed by the United States; and (iv) the individual Defendants are entitled to qualified immunity.
On April 19, 2007 Judge Baxter issued a Report and Recommendation  in which she recommended that this Court dismiss Plaintiff's Eighth Amendment Bivens claims against the individual Defendants, Plaintiff's FTCA claims against the individual Defendants, and Plaintiff's FTCA claim against the United States to the extent that the claim was premised upon the alleged negligence of Defendant Mark Welch. By Memorandum Order dated August 21, 2007 , this Court adopted Judge Baxter's April 19, 2007 Report and Recommendation and dismissed the aforementioned claims. As a result of this ruling, the only claims remaining in the case at present are Plaintiff's FTCA claim against the United States (excluding Plaintiff's claims of medical negligence on the part of Defendant Welch) and Plaintiff's Fifth Amendment Due Process claim against Defendant James F. Sherman, the Warden of FCI McKean.
In her April 19, 2007 Report and Recommendation, Judge Baxter noted that no motion had been made by the defense to dismiss Plaintiff's Fifth Amendment Due Process Claim against Defendant Sherman.*fn3 Eight days after the filing of the Report and Recommendation, but before this Court had taken any action on the R&R, Defendants filed a motion  seeking an enlargement of time in which to file an answer to the complaint and a motion to dismiss the due process claim against Defendant Sherman. That motion was granted by Judge Baxter and, on May 15, 2007, Defendants timely filed an "Answer and New Matter" relative to the remaining FTCA claim  and a "Supplemental Motion to Dismiss" the Fifth Amendment Bivens claim against Defendant Sherman . As grounds for his motion to dismiss, Defendant Sherman argued that Plaintiff had failed to exhaust his administrative remedies under the Prison Litigation Reform Act of 1995 ("PLRA"), 42 U.S.C. § 1997e(a), and had failed to allege any facts sufficient to establish a basis for Sherman's personal liability.
On September 28, 2007, Judge Baxter filed a Report and Recommendation  recommending that Defendant Sherman's motion to dismiss be granted. She noted that, in support of his claim that Plaintiff had failed to exhaust available administrative remedies, Defendant Sherman had supplied an uncontradicted Declaration of Rosalind Bingham, Paralegal Specialist for the Bureau of Prison's Northeast Regional Office. In her declaration, Ms. Bingham certified that no administrative remedy requests or appeals had ever been filed by Plaintiff regarding the alleged violation of his Fifth Amendment rights by Defendant Sherman. (See Report and Recommendation  at p. 5 of 6.) Because Plaintiff had failed to offer any evidence contradicting this assertion, Judge Baxter opined that Plaintiff's Fifth Amendment Due Process claim is not properly before this Court and should be dismissed.
Although Plaintiff never specifically filed an opposition to Defendant Sherman's motion to dismiss, he did file an "Opposition to Defendants' Answer and New Matter"
 in which he expressed opposition to Sherman's motion. Plaintiff also expressed opposition to the motion in his objections to Judge Baxter's April 19, 2007 Report & Recommendation . Finally, Plaintiff has filed objections to Judge Baxter's September 28, 2007 Report and Recommendation  in which he directly contests her opinion that Sherman's motion should be granted. We consider these objections, and Judge Baxter's Report and Recommendation, de novo.*fn4
Principally, Plaintiff objects to the timing of the instant motion to dismiss. Specifically, he contends that Defendant Sherman is precluded from asserting his motion because the PLRA's exhaustion requirement is a defense that has been waived. Plaintiff refers us to Rule 12(g) of the Federal Rules of Civil Procedure, which states:
(g) Consolidation of Defenses in Motion. A party who makes a motion under this rule may join with it any other motions herein provided for and then available to the party. If a party makes a motion under this rule but omits therefrom any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2) hereof on any of the grounds there stated. Fed. R. Civ. P. 12(g). Essentially, Plaintiff contends that Defendant Sherman waived his "failure-to-exhaust" defense by not including it within the Defendants' original dispositive motion filed on November 21, 2006. We disagree.
As a substantive matter, it is clear that the PLRA required Plaintiff to exhaust his available administrative remedies before asserting his Fifth Amendment Bivens claim in this Court. See 42 U.S.C. § 1997e(a) ("no action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted"). Plaintiff acknowledges as much and agrees that this exhaustion involved a four-step appeal process culminating in review by the BOP's Office of General Counsel. See generally 28 C.F.R. §§ 542.10-542.19. Though not jurisdictional, see Nyhuis v. Reno, 204 F.3d 65, 69 n. 4 (3d Cir. 2000), the exhaustion requirement is not a mere technicality. Rather, it is a Congressionally mandated requirement which district courts must enforce, Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 2382 (2006), and no exception to it based on "futility" is recognized. See Almed v. Dragovich, 297 F.3d 201, 206 (3d Cir. 2002); Nyhuis, 204 F.3d at 73, 78.
As a procedural matter, the plaintiff's failure to satisfy the PLRA's exhaustion requirement constitutes an affirmative defense which must be pleaded and proved by the Defendant. See Jones v. Bock, - U.S. -, 127 S.Ct. 910, 919 (2007); Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003); Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002). Technically speaking, as an affirmative defense, it should be asserted in the defendant's answer, see Fed. R. Civ. P. 8(c), and raised by way of a motion for judgment on the pleadings under Rule 12(c). See Spruill v. Gillis, 372 F.3d 218, 223 n.2 (3d Cir. 2004). Significantly, affirmative defenses are not subject to the provisions of Rule 12(g) because that rule applies only to certain pre-answer defenses asserted under Rule 12(b). See Fed. R. Civ. P. 12(g) advisory committee notes to 1966 Amendment ("Subdivision (g) has forbidden a defendant who makes a preanswer motion under this rule from making a further motion presenting any defense or objection which was available to him at the time ... and which he could have included... therein") (emphasis supplied). In sum, because the plaintiff's failure to exhaust administrative remedies is an affirmative defense, it does not technically fall within the ambit of Rule 12(g).
Nevertheless, that defense is commonly asserted in pre-answer motions brought under Rule 12(b)(6) of the Federal Rules of Civil Procedure, which pertains when the complaint, on its face, fails to state a claim upon which relief can be granted. See, e.g., Kirk v. Roan, No. 05-4436, 160 Fed. Appx. 188, 189-90 (3d Cir. Dec. 20, 2005) (per curiam); Spruill, 372 F.3d at 223; Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002) ("In appropriate cases, failure to exhaust may be raised as the basis for a motion to dismiss [under Fed. R. Civ. P. 12(b)(6)]."); Rodriguez Ramos v. Smith, No. Civ. A. 04-CV-0249, 2005 WL 3054291 at *4 (E.D. Pa. November 14, 2005); Pumphrey v. Ball, No. Civ. A. 03-184-KA, 2003 WL 23335457 at *1 (D. Del. March 18, 2003). Even so, while Rule 12(g) generally requires the consolidation of pre-answer defenses in motions made under Rule 12(b), there is a notable exception for motions made pursuant to Rule 12(b)(6). Significantly, "[a] defense of failure to state a claim upon which relief can be granted ... may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits." Fed. R. Civ. P. 12(h)(2) (emphasis added). See also Fed. R. Civ. P. 12(g) ...