The opinion of the court was delivered by: Judge Conner
Plaintiff Dwayne Manning ("Manning"or "plaintiff"), a federal inmate incarcerated at the Low Security Correctional Institution at Allenwood, White Deer, Pennsylvania ("FCI-Allenwood"), commenced this action on February 11, 2011, asserting Bivens*fn1 claims pursuant to 28 U.S.C. § 1331, and a claim under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq.*fn2 (Doc. 1.) Named as defendants are the following: Officer Flock ("Flock"); Miller; Trimble; Myers, Wolever, Feltman, Krenzel, United States of America; Department of Justice; Bureau of Prisons; Warden Scism; Regional Director Norwood; and Watts. The Bivens claims include challenges to his conditions of confinement, interference with legal mail, harassment, and retaliation. (Doc. 1.) The FTCA claim seeks monetary damages for injuries Manning sustained after falling off a step stool when he attempted to gain access to his top bunk. (Id.)
Ripe for disposition is the motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b) and motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(b) filed on behalf of all defendants. (Doc. 11.) For the reasons set forth below, the motion to dismiss will be granted in part and denied in part and the motion for summary judgment will be granted.
Defendants move to dismiss certain portions of plaintiff's complaint. As to the Bivens claim, which is an implied right of action allowing plaintiffs to sue federal agents acting under color of federal authority for civil rights violations, defendants move to dismiss the claims against them in their official capacities. (Doc. 20, at i.) They also move to dismiss the Bivens claims against defendants Watts and Norwood for lack of personal involvement. (Id.)
They seek to dismiss the FTCA claim as to all defendants, except the United States, because the United States is the only proper defendant in an FTCA claim. (Doc. 20, at ii.) Dismissal was also originally sought on the ground that Manning failed to exhaust his FTCA administrative remedies and failed to articulate an FTCA claim against the United States. (Id. at ii, 31.) However, in his opposition to the motion to dismiss, Manning demonstrated exhaustion and clarified his claim under the FTCA. (Doc. 28, at 22.) Defendants acknowledge same in their reply brief (Doc. 32, at 12) and, alternatively, seek summary judgment on the ground that the claim is barred by the discretionary function exception to the FTCA. (Id.; Doc. 33, at 1, fn 1.)
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept as true all [factual] allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is generally limited in its review to the facts contained in the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
Federal notice and pleading rules require the complaint to provide "the defendant notice of what the . . . claim is and the grounds upon which it rests." Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The plaintiff must present facts that, if true, demonstrate a plausible right to relief. See FED. R. CIV. P. 8(a) (stating that the complaint should include "a short and plain statement of the claim showing that the pleader is entitled to relief"); Ashcroft v. Iqbal, ---U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (explaining that Rule 8 requires more than "an unadorned, the-defendant unlawfully-harmed-me accusation"); Twombly, 550 U.S. at 555 (requiring plaintiffs to allege facts sufficient to "raise a right to relief above the speculative level"). Thus, courts should not dismiss a complaint for failure to state a claim if it contains "enough factual matter (taken as true) to suggest the required element. This 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." Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 556).
Courts are cautioned that because of this liberal pleading standard, a plaintiff should generally be granted leave to amend before dismissing a claim that is merely deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000). The federal rules allow for liberal amendments in light of the "principle that the purpose of pleading is to facilitate a proper decision on the merits." Foman v. Davis, 371 U.S. 178, 182 (1962) (citations and internal quotations omitted). However, leave to amend under Rule 15 may be denied in cases of (1) undue delay; (2) bad faith or dilatory motive; (3) undue prejudice; or (4) futility of amendment. See Foman, 371 U.S. at 182; see also Arthur v. Maersk, Inc., 434 F.3d 196, 204-05 (3d Cir. 2006) (stating that "leave to amend must generally be granted unless equitable considerations render it otherwise unjust"); see also Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004) (stating "absent undue or substantial prejudice, an amendment should be allowed under Rule 15(a) unless denial can be grounded in bad faith or dilatory motive, truly undue or unexplained delay, repeated failure to cure deficiency by amendments previously allowed or futility of amendment") (citations and internal quotation marks omitted); Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000) (summarizing factors to consider under Rule 15).
B. Pertinent Allegations of the Complaint
Manning sues all of the defendants in both their individual and official capacities. (Doc. 1, at ¶¶ 2-11.)
At some time after July 23, 2010, Manning wrote defendant Norwood, the "regional director over LSCI Allenwood," a letter explaining that prison officials were interfering with his pursuit of his administrative remedies. (Doc. 1, at ¶¶ 10, 32-33.) Norwood informed him that he must pursue remedies through the prison system before coming to him. (Id. at ¶ 33.) Manning also alleges that on every instance where he sought relief through the grievance system, "no matter how much wrong the institution does, Norwood ignores it and goes along with the institution." (Id.)
He also alleges that defendant Watts had the opportunity to correct all of the violations and chose not to investigate. (Doc. 1, at ¶ 35.) In addition, he asserts that Watts violated his due process rights when he failed to timely respond to grievance appeals. (Id.)
In the caption of his complaint, Manning includes the Administrative Tort Claim No., TRT-NER-2010-04746. (Doc. 1, at 1.) In the opening sentence of his preliminary statement, he states that this is a civil rights action for damages and injunctive relief and "compensatory damages" under tort action "28 U.S.C. §§ 1346 . . . ." (Id.) Under the jurisdiction heading, he states that "[t]he Court also has jurisdiction over Plaintiff's claims of tort action under 28 U.S.C. §§ 1346." (Id.)
In his request for administrative relief, he claimed that staff improperly advised him to utilize a stool to access his top bunk causing him to fall and suffer injury and that the injury could have been avoided if ladders had been provided to gain access to the top bunks. (Doc. 29, at 32.) He submits the December 7, 2010, decision of the Federal Bureau of Prisons' Regional Counsel denying his request for administrative relief. (Doc. 29, at 32.) This instant action was filed on February 11, 2011. (Doc. 1.)
Bivens is analogous to its statutory cousin, 42 U.S.C. § 1983*fn3 , which allows federal suits of state agents who commit civil rights violations while acting under color of state law. The required elements of a Bivens claim are (1) the conduct complained of was a person acting under color of law, and (2) the conduct deprived that person of a right, privilege, or immunity secured by the Constitution. See, e.g., Grohman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995) (describing elements of a § 1983 claim).
The doctrine of sovereign immunity precludes a plaintiff from bringing a Bivens action against a federal agency, See FDIC v. Meyer, 510 U.S. 471, 484-86 (1994). Suits brought against federal officials in their official capacities are to be treated as suits against the employing government agency. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). As a result, a Bivens suit brought against an individual federal official acting in his official capacity is barred by the doctrine of sovereign immunity, See also Chinchello v. Fenton, 805 F.2d 126, 130 n. 4 (3d Cir. 1986) (affirming district court's conclusion that sovereign immunity barred an official-capacity Bivens claim), and the court lacks jurisdiction to hear the claim. See Kabakjian v. United States, 267 F.3d 208, 211 (3d Cir. 2001) (holding that district courts lack jurisdiction to hear claims brought against the United States unless Congress has explicitly waived sovereign immunity)." Thus, the monetary claims against all defendants in their official capacities are subject to dismissal.
The involvement of defendants Norwood and Watts is limited to the review of Manning's grievances. The filing of a prison grievance is a constitutionally protected activity. Robinson v. Taylor, 204 F. App'x. 155, 156-57 (3d Cir. 2006). Although prisoners have a constitutional right to seek redress of grievances as part of their right of access to courts, this right is not compromised by the failure of prison officials to address these grievances. Booth v. King, 346 F. Supp.2d 751, 761 (E.D.Pa .2004). This is because inmates do not have a constitutionally protected right to a grievance procedure. Burnside v. Moser, 138 Fed.Appx. 414, 416 (3d Cir.2005) (citations omitted) (failure of prison officials to process administrative grievance did not amount to a constitutional violation). Nor does the existence of a grievance procedure confer upon prison inmates any substantive constitutional rights. Hoover v. Watson, 886 F. Supp. 410, 418-19 (D. Del.), aff'd 74 F.3d 1226 (3d Cir. 1995). Similarly, the failure to investigate a minor grievance does not raise a constitutional issue. Hurley v. Blevins, No. Civ. A. 6:04CV368, 2005 WL 997317 (E.D. Tex. Mar. 28, 2005).
Moreover, participation in the after-the-fact review of a grievance or appeal is not enough to establish personal involvement. See Rode, 845 F.2d at 1208 (finding the filing of a grievance is not enough to show the actual knowledge necessary for personal involvement); Brooks v. Beard, 167 F. App'x 923, 925 (3d Cir. 2006) (holding that a state prisoner's allegation that prison officials and administrators responded inappropriately, or failed to respond to a prison grievance, did not establish that the officials and administrators were involved in the underlying allegedly unconstitutional conduct); Croom v. Wagner, 2006 WL 2619794, at *4 (E.D. Pa. Sept. 11, 2006) (holding that neither the filing of a grievance nor an appeal of a grievance is sufficient to impose knowledge of any wrongdoing); Ramos v. Pennsylvania Dept. of Corr., 2006 WL 2129148, at *2 (M.D. Pa. July 27, 2006) (holding that the review and denial of the grievances and subsequent administrative appeal does not establish personal involvement); Pressley v. Blaine, No. 01-2468, 2006 U.S. Dist. LEXIS 30151, at *17 (W.D. Pa. May 17, 2006) ("[M]ere concurrence in a prison administrative appeal process does not implicate a constitutional concern." (citing Garfield v. Davis, 566 F. Supp. 1069, 1074 (E.D. Pa. 1983))).
Because the involvement of defendants Norwood and Watts is limited to their involvement in the grievance procedure, and their after-the fact review of Manning's grievances, the complaint against these defendants will be dismissed.
Defendants argue that all defendants except the United States should be dismissed because the only proper defendant for purposes of an FTCA claim is the United States of America. (Doc. 20, at 25.) The Court agrees that the only proper party is the United States. See CNA v. United States, 535 F.3d 132, 138 n. 2 (3d Cir. 2008) ("The Government is the only proper defendant in a case brought under the FTCA."); see 28 U.S.C. § 2679(d). Consequently, the FTCA claim will be dismissed as to all defendants except the United States.
II. Motion for Summary Judgment
Through summary adjudication the court may dispose of those claims that do not present a "genuine issue as to any material fact" and for which a jury trial would be an empty and unnecessary formality. See FED. R. CIV. P. 56(c). The burden of proof is upon the non-moving party to come forth with "affirmative evidence, beyond the allegations of the pleadings," in support of its right to relief. Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); FED. R. CIV. P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-moving party on the claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986); see also FED. R. CIV. P. 56(c), (e). Only if this threshold is met may the cause of action proceed. Pappas, 331 F. Supp. 2d at 315.
B. Statement of Material Facts
a. Exhaustion of Administrative Review Procedure There are a number of claims alleged in the complaint. Defendants contend that while some are exhausted, there are a number of claims that are not. (Doc. 20, at 11.) The BOP has a three-level administrative review process that must be fully exhausted before an inmate can bring an action in federal court. (Doc. 21, at ¶ 49, citing 28 C.F.R. § 541.10, et seq. (2004).) The purpose of the process is to allow an inmate to seek formal review of an issue relating to any aspect of his or her confinement. (Id. at ¶ 50, citing 28 C.F.R. § 541.10(a). If an issue is raised in a request or appeal that cannot be resolved through the review process, the BOP will refer the inmate to the appropriate statutorily-mandated procedures. (Id. at ¶ 51, citing 28 C.F.R. § 542.10(c).)
In order to exhaust appeals under the administrative review procedure, an inmate must first informally present his complaint to staff, and staff will attempt to resolve the matter. (Doc. 21, at ¶ 52, citing 28 C.F.R. § 542.13(a).) If the informal resolution is unsuccessful, then the inmate must execute the appropriate form to bring the matter to the attention of the warden. (Id. at ¶ 53, citing 28 C.F.R. § 542.14.) The warden is then to respond to the inmate's complaint within twenty calendar days. (Id. at ¶ 54, citing 28 C.F.R. § 542.18.) If the inmate is dissatisfied with the warden's response, he may then appeal to the BOP Regional Director within twenty calendar days. (Id. at ¶ 55, citing 28 C.F.R. § 542.15(a).) If the response of the BOP Regional Director is not satisfactory, the inmate may then appeal to the BOP Central Office within thirty calendar days, which office is the final administrative appeal in the BOP. (Id. at ¶ 56,citing 28 C.F.R. § 542.15(a).) An exception is made for appeals of decisions of a discipline hearing officer ("DHO"), which are first raised directly to the BOP Regional Office and then to the BOP Central Office. (Id. citing 28 C.F.R. §542.14(d)(2).) No administrative appeal is considered to have been fully exhausted until rejected by the BOP Central Office. (Id. at ¶ 57, citing 28 C.F.R. § 542.15(a).
In the ordinary course of business, computerized indices are kept of requests for administrative review filed by inmates. (Doc. 21, ¶ 58.) On April 18, 2011, a search of BOP records was conducted to determine whether Manning exhausted that administrative process as to each of his claims. (Id. at ¶ 59.) The search revealed that Manning fully exhausted the following claims: defendant Flock provided him with improper clothing ("Request for Administrative Remedy" Number ("Adm. No.") 584758); defendant Flock improperly pat searched him (Adm. No. 593775; defendant Flock improperly confiscated items from his cell (Adm. No. 608913); defendant Myers retaliated against him for filing grievances and by changing his job assignment (Adm. No. 590134); defendant Myers refused to give him a grievance form until a pending grievance was answered (Adm. No. 592078); defendant Myers retaliated against him for filing grievances by assigning him to a top bunk (Adm No. 592084); ...