The opinion of the court was delivered by: Judge Jones
This matter is before the Court on the Report and Recommendation of Magistrate Judge Thomas M. Blewitt (Doc. 62) which recommends that the Motion to Dismiss (Doc. 54) of the defendant United States be granted and plaintiff Shemtov Michtavi's Second Amended Complaint be dismissed. Michtavi has filed objections to the Report and Recommendation (Doc. 65), to which the United States filed an opposition (Doc. 66). For the reasons set forth below, the Court will adopt the Magistrate Judge's recommendation, and, although for slightly different reasons, will dismiss Michtavi's complaint.
A. Objections to Magistrate Judge's Report
When, as here, objections are filed to the report of a magistrate judge, the district court makes a de novo determination of those portions of the report or the proposed findings or recommendations to which objections are made. 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 674-75 (1980). Under this standard, a court may accept, reject, or modify, in whole or in part, the magistrate judge's findings or recommendations. Id. Although the standard of review is de novo, 28 U.S.C. § 636(b)(1) permits whatever reliance the district court, in the exercise of sound discretion, chooses to place on a magistrate judge's proposed findings and recommendations. Raddatz, 447 U.S. at 674-75; see also Mathews v. Weber, 423 U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).
The United States moves to dismiss the complaint under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). When considering a motion to dismiss under Rule 12(b)(1), a court must distinguish between facial and factual challenges to its subject matter jurisdiction. See Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). A facial attack challenges whether the plaintiff has properly pled jurisdiction. Id. "In reviewing a facial attack, the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff." Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (citing Mortensen, 549 F.2d at 891). A factual attack, in contrast, challenges jurisdiction based on facts apart from the pleadings.
Mortensen, 549 F.2d at 891. "When a defendant attacks subject matter jurisdiction 'in fact,' ... the Court is free to weigh the evidence and satisfy itself whether it has power to hear the case. In such a situation, 'no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.'" Carpet Group Int'l v. Oriental Rug Importers Ass'n, 227 F.3d 62, 69 (3d Cir. 2000) (quoting Mortensen, 549 F.2d at 891). In this case, the United States' assertion that the Court lacks subject matter jurisdiction over certain of Michtavi's claims raises a factual challenge.
In considering a motion to dismiss pursuant to Rule 12(b)(6), courts "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)).
A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a). Rule 8(a)(2) requires that a complaint contain a short and plain statement of the claim showing that the pleader is entitled to relief, "in order to give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, --- U.S. ----, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 1965. A plaintiff must make "a 'showing' rather than a blanket assertion of an entitlement to relief", and "without some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only 'fair notice,' but also the 'grounds' on which the claim rests." Phillips, 515 F.3d at 232 (citing Twombly, 127 S.Ct. at 1965 n. 3). "[A] complaint must allege facts suggestive of [the proscribed] conduct, and the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly, 127 S.Ct. at 1965, 1969 n.8. Therefore, "stating a claim requires a complaint with enough factual matter (taken as true) to suggest the required element." Phillips, 515 F.3d at 234 (quoting Twombly, 127 S.Ct. at 1965 n. 3).
On the other hand, "a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits." Id. at 231(citing Twombly, 127 S.Ct. 1964-65, 1969 n.8). Rule 8 "does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Id. at 234.
The factual background and procedural history of this action are comprehensively set forth in the Report and Recommendation and the Court's earlier opinions in this case, and because the Court writes only for the parties, we set forth below, in accordance with the above standards of review, only the background necessary to the disposition of the present motion to dismiss.
The sole claim asserted in this action is Michtavi's claim against the United States under the Federal Tort Claims Act ("FTCA") as stated in his Second Amended Complaint. The essential allegations of Michtavi's complaint are that the United States, through its employees in the BOP, failed to prevent the loss of property and depression sustained as a result of fellow inmates' attempts to con him.
Specifically, Michtavi, an inmate at the Allenwood Low Security Correctional Institution, alleges that two inmates conspired to steal his legal papers "so they could formulate a false crime allegedly to be committed by" Michtavi, and then offer to testify against Michtavi in exchange for a reduction in their sentences.
(Doc. 52 at ¶ 12.) However, one of the inmates "had a change of heart" and revealed the plan to Michtavi, who informed prison officials of the scheme. (Id.) The inmate who stole Michtavi's legal papers was placed in the SHU, and a few months later, the other inmate who had informed Michtavi of the scheme was transferred to another facility. (Id. at ¶ 13.)
Michtavi asserts, however, that he quickly fell prey to another scheme. He alleges yet another inmate informed him that the inmate's mother could help Michtavi fight his criminal conviction if Michtavi sent her money to pay for an inexpensive attorney. (Id. at ¶ 14.) Michtavi states that he "fell for this scam" and had his family send money to the inmate's mother. (Id. at ¶ 15.) He also alleges that this inmate too planned to steal his legal papers "in order to fabricate false criminal activity, and then 'play hero' by exposing the same to the U.S. Attorney's office and to the Federal Bureau of Investigation (FBI) in exchange for a reduction in this inmate's own sentence."*fn1 (Id.) Michtavi learned of this inmate's schemes through another prisoner, and informed prison officials. (Id. at ¶¶ 16-18.) Michtavi alleges that in response prison officials did not institute an investigation but rather accused him of wrongdoing. (Id. at ¶ 18.) Nevertheless, Michtavi concedes that prison officials conducted a search of the inmate's cell, confiscated Michtavi's legal papers from the inmate, and returned them to Michtavi. (Id. at ¶ 19.) Michtavi asserts, however, that the mere fact that his papers made it into the inmate's cell demonstrates "some kind of either funny business or just plain incompetence" on ...