The opinion of the court was delivered by: Judge Conner
William Thrower ("Thrower" or "plaintiff"), an inmate formerly housed at the United States Penitentiary at Lewisburg ("USP Lewisburg"), Pennsylvania, filed a complaint alleging a Bivens*fn1 claim, 28 U.S.C. § 1331, and a Federal Tort Claim Act ("FTCA") claim, 28 U.S.C. § 1346(b). (Doc. 1.) Named as defendants are the United States, the Bureau of Prisons, the Warden of USP Lewisburg, and "EMS Medical Team ."*fn2 Presently pending is the motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b) or, in the alternative, motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 (Doc. 41) filed on behalf of the United States, Bureau of Prisons, Warden of USP Lewisburg, and EMS Medical Team. The motion will be granted as set forth below.
On June 12, 2012, Civil No. 1:12-CV-1034 was consolidated with this action (Doc. 68), which brought the addition of the "U.S. Bureau of Prisons" ("BOP") as a defendant. (See Doc. 7, Amended Complaint, Civil No. 1:12-cv-1034). This defendant will be dismissed pursuant to 28 U.S.C. §1915(e)(2)(B)(ii).
I. Dismissal Pursuant to 28 U.S.C. §1915(e)(2)(B)(ii)
Section 1915(e)(2) states, in pertinent part, "the court shall dismiss the case at any time if the court determines that (B) the action . . . (ii) fails to state a claim on which relief may be granted. . . ." 28 U.S.C. §1915(e)(2)(B)(ii). The applicable standard of review for the failure to state a claim provision is the same as the standard for a 12(b)(6) motion, which 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, 566 U.S. 662, 678 (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, to prevent a summary dismissal, civil complaints must now allege "sufficient factual matter" to show that a claim is facially plausible. See Iqbal, 556 U.S. at 678; see also Twombly, 505 U.S. at 555, & n. 3; Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). This then "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678.
The Third Circuit now requires that a district court must conduct the two-part analysis set forth in Iqbal when presented with a motion to dismiss:
First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. [Iqbal, 556 U.S. at 678]. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief." [Id. at 679] In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to "show" such an entitlement with its facts. See Phillips, 515 F.3d at 234--35. As the Supreme Court instructed in Iqbal, "[w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.' "Iqbal, [556 U.S. at 679]. This "plausibility" determination will be "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.
Fowler, 578 F.3d at 210--211.
This Court is mindful, however, that the sufficiency of this pro se pleading must be construed liberally in favor of plaintiff, even after Iqbal. See Erickson v. Pardus, 551 U.S. 89 (2007). Moreover, a court should not dismiss a complaint with prejudice for failure to state a claim without granting leave to amend, unless it finds bad faith, undue delay, prejudice or futility. See Grayson v. Mayview State Hosp., 293 F.3d 103, 110--111 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 117 (3d Cir. 2000).
A Bivens claim is an implied right of action allowing plaintiffs to sue federal agents acting under color of federal authority for civil rights violations. It 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).
"[A] Bivens action does not lie against either agencies or officials in their official capacity." Doe v. Chao, 306 F.3d 170, 184 (4th Cir. 2002). This is so because a suit against a federal agency or a federal official in his or her official capacity is a suit against the United States. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 61 (1989). As a sovereign, the United States is immune from suit except when it consents to abrogate that immunity. The immunity is jurisdictional in nature. FDIC v. Meyer, 510 U.S. 471, 475 (1994). In light of the fact that the BOP is not a "person" within a meaning of a civil suit asserting jurisdiction under Bivens, the claims against the BOP will be dismissed, with prejudice.
II. Motion for Summary Judgment
Under Rule 56 of the Federal Rules of Civil Procedure, the movant is entitled to summary judgment if it "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). In pertinent part, parties moving for, or opposing, summary judgment must support their position by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." FED. R. CIV. P. 56(c)(1)(A).
"The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Colwell v. Rite-Aid Corp., 602 F.3d 495, 501 (3d Cir. 2010) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
Thrower arrived at USP Lewisburg on April 15, 2009. (Doc. 43, ¶ 24; Doc. 50, ¶ 24.) Upon his arrival, he was placed in a cell with another inmate. (Doc. 43, ¶ 25; Doc. 50, ¶ 25.) On April 17, 2009, staff observed Thrower sitting on the floor of the cell holding his head in his hands. (Id.) At that time, Thrower's cellmate began screaming to remove Thrower from their cell. (Doc. 43, ¶ 26; Doc. 50, ¶ 26.) Thrower's cellmate aggressively advanced toward staff which prompted a call for assistance. (Doc. 43, ¶ 27; Doc. 50, ¶ 27.) A two-second burst of MD-09 streamer was dispersed in an attempt to quell Thrower's cellmate. (Doc. 43, ¶ 28; Doc. 50, ¶ 28.) The cellmate eventually submitted to hand restraints, but then kicked and kneed Thrower in the head and face, necessitating another two-second burst of MK-09. (Doc. 43, ¶ 29; Doc. 50, ¶ 29.) Both inmates were removed from the cell and Thrower was transported to the outside hospital, where he required emergency surgery as a result of his injuries. (Doc. 43, ¶ 30; Doc. 50, ¶ 30.) Prior to housing Thrower with the assailant, there was no indication or documentation indicating a separation concern. (Doc. 43, ¶ 31.) Thrower contends that "the BOP should have known of the danger plaintiff was in." (Doc. 50, ¶ 31.)
The Federal Bureau of Prisons ("BOP") has an administrative remedy procedure through which inmates can seek formal review of an issue relating to any aspect of his or her confinement. (Doc. 43, ¶¶ 1, 2, citing 28 C.F.R. § 542.10; Doc. 50, ¶ 1.) "If an inmate raises an issue in a request or appeal that cannot be resolved through the Administrative Remedy Program, the BOP will refer the inmate to the appropriate statutorily-mandated procedures." (Doc. 43, ¶ 3, citing 28 C.F.R. § 542.10(c); Doc. 50, ¶ 3.) In order to exhaust appeals under the administrative review procedure, an inmate must first informally present his complaint to staff, and staff is to attempt to resolve the matter. (Doc. 43, ¶ 4, citing 28 C.F.R. § 542.13(a); Doc. 50, ¶ 4.) If the informal resolution is unsuccessful, then the inmate must execute the appropriate form to bring the matter to the attention of the warden. (Doc. 43, ¶ 5; Doc. 50, ¶ 5.) The warden is then to respond to the inmate's complaint within twenty calendar days. (Doc. 43, ¶ 6, citing 28 C.F.R. § 542.18; Doc. 50, ¶6.) If the inmate is dissatisfied with the warden's response, he may then appeal to the Regional Director within twenty calendar days. (Doc. 43, ¶ 7, citing 28 C.F.R. § 542.15(a); Doc. 50, ¶ 7.) If the response of the Regional Director is not satisfactory, the inmate may then appeal to the BOP's Central Office within thirty calendar days, which office is the final administrative appeal level in the BOP. (Doc. 43, ¶ 8; Doc. 50, ¶ 8.) An exception is made for appeals of Discipline Hearing Officer (DHO) decisions, which are first raised directly to the regional office level and then to the central office level. (Doc. 43, ¶ 9, citing 28 C.F.R. § 542.14 (d)(2); Doc. 50, ¶ 9.) No administrative appeal is considered to have been fully exhausted until rejected by the BOP Central Office. (Doc. 43, ¶ 10, citing 28 C.F.R. § 542.) In the ordinary course of business, computerized indices are kept of requests for administrative review filed by inmates. (Doc. 43, ¶ 11.) On December 15, 2011, a search of BOP records was conducted to determine whether Thrower ...