The opinion of the court was delivered by: Judge Vanaskie
Spencer Bowens, an inmate presently confined at the Allenwood United States Penitentiary, White Deer, Pennsylvania (USP-Allenwood), proceeding pro se, initiated this combined Bivens*fn1 and Federal Tort Claims Act ("FTCA")*fn2 action. Named as Defendants are the United States Department of Justice, National Inmate Appeals Administrator Harrell Watts, and Northeast Regional Director D. Scott Dodrill of the Federal Bureau of Prisons ("BOP"). Plaintiff is also proceeding against three (3) USP-Allenwood officials -- Warden Jonathan Miner, and Correctional Officers Jenkins and Stanley.*fn3
Plaintiff states that he placed several personal photographs in an envelope addressed to Ms. Joan Apkers. He gave the envelope to Correctional Officer Stanley for the purpose of having it mailed out of the prison. According to the Complaint, Ms. Apkers subsequently informed Bowens that although she had received the envelope, it did not contain any photographs. (Dkt. Entry # 1 at ¶ V(1).)
Upon discussing the matter with Officer Stanley, Plaintiff was told that said officer had given the photos to Defendant Jenkins, the "morning watch officer." Officer Jenkins subsequently informed Plaintiff that he had forwarded the photographs to the prison's SIS.*fn4
The Complaint notes that Plaintiff was not given a confiscation slip as required by institutional policy. After further inquiry, Plaintiff was informed that his photos could not be located. The Bivens portion of the Complaint alleges that the taking of his "irreplacable [sic] photographs" which were to be used "for a published documentary" was an improper confiscation of his personal property in violation of his freedom of speech and due process rights under the First and Fifth Amendments. In his FTCA claim, Plaintiff alleges that he is entitled to an award of monetary damages for the negligent confiscation of his photographs without being afforded proper notice by BOP employees.
Defendants filed a motion to dismiss, or in the alternative for summary judgment, on September 26, 2008. (Dkt. Entry # 16.) However, their subsequently filed supporting brief withdrew their request for summary judgment, noting "it would not be appropriate at this time." (Dkt. Entry # 17 at n. 1.) Defendants' motion to dismiss is ripe for consideration.
Defendants seek dismissal of the complaint under Federal Rule of Civil Procedure 12(b)(1) on the basis that there is a lack of subject-matter jurisdiction. A Rule 12(b)(1) motion "may be treated as either a facial or factual challenge to the court's subject matter jurisdiction. Warner v. McVey, 2009 WL 703416 * 2 (W.D. Pa. March 16, 2009)(citing Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). Defendants describe their pending motion as raising a "factual attack," i.e., challenging jurisdiction on facts apart from the pleadings.*fn5 (Dkt. Entry # 17 at 4.).
With respect to a factual challenge, a court "is not limited to considering only the allegations on the face of the complaint if the defendant is challenging subject matter jurisdiction." Walters v. United States, 2008 WL 191476 *1 (M.D. Pa. Jan. 22, 2008)(citing Carpet Group Int'l v. Oriental Rug Importers Ass'n, 227 F.3d 62, 69 (3d Cir. 2000). As noted by the Third Circuit Court of Appeals, review is "not confined to the allegations in the complaint and [courts] can look beyond the pleadings to decide factual matters relating to jurisdiction." Cestonaro v. United States, 211 F.3d 749, 754 (3d Cir. 2000). In addition, "no presumptive truthfulness attaches" to the allegations in the Complaint and disputed material facts do not prevent the court evaluating the merits of the lack of jurisdiction claims. Mortensen v. First Fed. Sav. & Loan Ass'n., 549 F.2d 884, 891 (3d Cir. 1977). Simply put, the Court is "free to weigh the evidence and satisfy itself whether it has the power to hear the case." Carpet Group, 227 F.3d at 69.
Defendants argue that Plaintiff's FTCA claim should be dismissed for lack of subject matter jurisdiction because it is barred under 28 U.S.C. § 2680(c). (Dkt. Entry # 17 at 7.) Specifically, they contend that since Bowens' claim involves the detention of his property by BOP prison officials and their failure to return that property and because the United States has not waived sovereign immunity as to such claims, this Court must dismiss the FTCA portion of the Complaint.
Under the FTCA, the United States waives sovereign immunity for torts involving "injury or loss of property . . . 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." See Simon v. United States, 341 F. 3d 193, 200 (3d Cir. 2003).*fn6 As Defendants argue, however, exempted from the general waiver of sovereign immunity is "[a]ny claim arising in respect of the . . . detention of any . . . property by . . . any . . . law-enforcement officer." 28 U.S.C. § 2680(c).
In Ali v. BOP, 552 U.S. 214, 128 S.Ct. 831, 840-41 (2008), the Supreme Court addressed an FTCA claim filed by a federal prisoner who claimed that BOP officers had lost his personal property during his transfer to another prison. The Court stated that "Section 2680(c) forecloses lawsuit against the United States for the unlawful detention of property by 'any,' not just 'some' law enforcement officers." Id. at 841. Based upon the reasoning announced in Ali, federal corrections officers are covered by the term any law enforcement officer as used ...