The opinion of the court was delivered by: Chief Judge Kane
Alfonzo A. Roscoe, an inmate confined at the Federal Correctional Institution at Schuylkill, Pennsylvania, filed this civil rights action on August 16, 2007. On the complaint form submitted, Roscoe indicated that this matter was a combined Bivens*fn1 action pursuant to 28 U.S.C. § 1331, and complaint pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346. In the complaint Roscoe names as Defendants employees at the Federal Correctional Institution at Allenwood ("FCI-Allenwood"), his former place of confinement, as well as the United States of America. On February 2, 2009, the Court issued a Memorandum and Order granting a motion to dismiss filed by Defendants with respect to the Bivens claims raised in this action, as well as Plaintiff's FTCA claim as it pertained to the issues raised in administrative remedy #2005-04800. (Doc. No. 35.) However, Plaintiff was granted leave to file an amended complaint strictly limited to setting forth a FTCA claim regarding issues raised in a second administrative tort remedy (#2007-01681) he had filed. The amended complaint was filed on February 26, 2009. (Doc. No. 36.) Presently pending is a motion to dismiss the amended complaint filed by Defendant United States. (Doc. No. 37.) For the reasons that follow, the motion will be deemed unopposed, and granted.
In the original complaint Plaintiff set forth claims against various employees at FCI- Allenwood which included excessive force, improper placement in the Special Housing Unit and retaliation. In ruling on Defendants' motion to dismiss, all Bivens claims were dismissed based upon Plaintiff's expressed desire to proceed only on the Federal Tort claims. However, the Court noted that even if Plaintiff were attempting to pursue the Bivens claims, they are barred by the doctrine of claim/issue preclusion.
Plaintiff also sought to raise a claim under the FTCA. In moving to dismiss this claim, Defendants argued that tort claim #2005004800 filed by Plaintiff, wherein he sought damages for personal injury due to the assault by one of the Defendants, was barred by the statute of limitations. The Court granted Defendants' motion, finding that said FTCA claim was clearly untimely. (Doc. No. 35 at 7.) However, in opposing Defendants' motion to dismiss, Plaintiff for the first time argued that he had actually filed a second administrative tort claim - #2007-01681. In this second administrative tort claim, Plaintiff states he sought damages for mental and emotional stress related to the issue of his improper placement in the SHU.
In reviewing the original complaint in this matter, Plaintiff failed to properly clarify details with respect to any second tort claim. Further, based on Plaintiff's assertions, it would appear that any FTCA claim set forth regarding the second tort claim would be timely. As such, on February 2, 2009, the Court issued a Memorandum and Order dismissing the Bivens claims in their entirety, and dismissed the FTCA claim as it pertained to issues raised by Plaintiff in administrative tort claim #2005-04800. However, Plaintiff was granted leave to file an amended complaint strictly limited to FTCA claims raised in administrative tort claim # 2007-01681. On February 26, 2008, an amended complaint was filed. (Doc. No. 36.) Presently pending is a motion to dismiss the amended complaint by the United States, the only proper Defendant remaining in this action. For the reasons that follow, the motion will be granted.
A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the claims alleged in the complaint. In reviewing a motion to dismiss, the court must "accept all factual allegations as true, construe the complaint in the light most favorable to 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). The court is generally limited in its review to the face of the complaint, attached exhibits, and matters of public record in deciding motions to dismiss. In addition, factual allegations within documents described or identified in the complaint may be considered if the plaintiff's claims are based upon those documents. Pension Benefit Guar. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). A district court may consider these documents as well as indisputably authentic documents, without converting a motion to dismiss into a motion for summary judgment. Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004).
Although the moving party bears the burden of showing that no claim has been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2007), the plaintiff has an obligation to allege facts sufficient to "raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007) (internal citations omitted). Furthermore, "once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, Id. at 1960. When evaluating a motion to dismiss, a court need not "credit a complaint's 'bald assertions' or 'legal conclusions.'" Evancho v. Fisher, 423 F.3d 347, 354-55 (3d Cir. 2005). Finally, when a plaintiff fails to plead "enough facts to state a claim to relief that is plausible on its face," Twombly, 127 S.Ct. at 1960, the complaint should be dismissed. A district court should provide leave to amend "when amendment could cure the deficiency and would not be inequitable." Grayson v. Mayview State Hospital, 293 F.3d 103, 106 (3d Cir. 2002).
In the amended complaint Plaintiff specifically states that he brings his claims pursuant to the FTCA, and names the United States as the Defendant. However, he goes on to state, in pertinent part and including all typographical and grammatical errors, as follows:
Although the FTCA under 28 U.S.C. 1346(b) require that any suit against any officials or agencies of the United States, the United States is to be named as the Defendant, individual employees of the agency, "FBOP" (Federal Bureau of Prisons) are specified as Defendants. They are: former Wardens' Troy Williamson and Karen F. Hogsten, former Associate Wardens' B. Meeks and J. Esparza, former Captain Tim Burns, former SIS Lieutenant B. Feltman, ad SIS Lieutenant J. Lyons, and Lieutenants Clarkson and Hepner. (Doc. No. 36, Amended Compl. at 2-3.) His allegations concern his placement into the Special Housing Unit at FCI-Allenwood, under administrative detention, following a physical altercation between him and Officer Dodson. Plaintiff alleges he was denied due process with regard to his SHU confinement from August 15, 2005 to December 21, 2005, without being provided any explanation, and further alleges that he was not provided with a segregation review hearing during said confinement. He also complains that the individuals referenced above prevented him from pursuing his allegations against Officer Dodson.
Plaintiff states that the legal claims raised in the amended complaint are violations of his First, Fifth and Fourteenth Amendment rights by the individual government employees. (Id. at 6.) As relief, Plaintiff seeks $70,600 for emotional and mental anguish, loss of sleep and anxiety. (Id. at 7.)
Defendant moves to dismiss Plaintiff's amended complaint on the following grounds: (1) the United States has not waived sovereign immunity for the claims Plaintiff seeks to raise in the amended complaint; (2) to the extent Plaintiff now attempts to assert new Bivens claims, he was only permitted leave to amend to add a FTCA action; and (3) Plaintiff cannot recover ...