The opinion of the court was delivered by: Magistrate Judge Carlson
REPORT AND RECOMMENDATION
I. Statement of Facts and of the Case
The plaintiff is a federal prisoner housed in the United States Penitentiary, Canaan. Liberally construed, in his complaint, the plaintiff brings a Bivens*fn1 constitutional tort action against five individual prison officials,*fn2 alleging that the defendants violated his constitutional right under the Eighth Amendment to be free from cruel and unusual punishment. (Doc. 1) The complaint also recites that the plaintiff is endeavoring to bring this action against the individually-named defendants pursuant to the Federal Tort Claims Act ("FTCA") 28 U.S.C. § 2401, et seq. and 28 U.S.C. § 2675, et seq.
The plaintiff's pro se complaint recites that, on June 25, 2011, the prison served inmates chicken fajitas. (Doc. 1) According to the plaintiff, the chicken was bad, and was tainted with salmonella bacteria. (Id.) Consequently, the plaintiff contracted food poisoning, and suffered excruciating pain and symptoms which included headaches, diarrhea, abdominal pains, nausea, chills, vomitting, inability to eat and profuse sweating. (Id.) Alleging negligence and deliberate indifference on behalf of the defendant prison officials in the preparation and service of this food, the plaintiffs seek damages from these individual defendants. While couched both as a Bivens constitutional tort action and as an action brought under the Federal Tort Claims Act, 28 U.S.C. § 2675, et seq., the plaintiff's complaint only names five individuals as defendants. No claims are brought against the United States.
Along with this complaint, the plaintiff has filed two motions for leave to proceed in forma pauperis. (Docs. 2 and 7.) For the reasons set forth below, we will grant these motions for leave to proceed in forma pauperis, (Docs. 2 and 7), but as part of our legally mandated screening process for pro se, in forma pauperis complaints we recommend that the Federal Tort Claim Act claims set forth against the individuals defendants be dismissed.
A. Screening of Pro Se Prisoner Complaints--Standard of Review
This Court has a statutory obligation to conduct a preliminary review of pro se complaints filed by prisoners who seek leave to proceed in forma pauperis which seek redress against government officials. Specifically, we are obliged to review the complaint pursuant to 28 U.S.C. § 1915A which provides, in pertinent part:
(a) Screening. - The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for dismissal. - On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.
Under Section 1915A, the court must assess whether a pro se complaint "fails to state a claim upon which relief may be granted." This statutory text mirrors the language of Rule 12(b)(6) of the Federal Rules of Civil Procedure, which provides that a complaint should be dismissed for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6).
With respect to this benchmark standard for legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing ...