The opinion of the court was delivered by: Judge Caputo
On November 8, 2010, Ronald L. Tsosie, a federal inmate formerly
housed at USP-Hazelton, in Bruceton Mills, West Virginia,*fn1
filed this action pursuant to the Federal Tort Claims Act
(FTCA), 28 U.S.C. § 2671,*fn2 and the Indian Tucker
Act, 28 U.S.C. § 1505, in the United States District Court for the
Southern District of West Virginia. Plaintiff's Complaint concerns his
December 21, 2008, transfer from USPHazelton to USP-Canaan. He alleges
that he and others were denied access to toilet facilities after
requesting the same during their transfer. He also alleges that the
transport officer drove the van at speeds in excess of 100 miles per
hour on snow covered roads. As none of the events complained of occurred
within the Southern District of West Virginia, the case was
transferred to the Middle District of Pennsylvania where USP-Canaan is
located. (Doc. 4, Transfer Order.)
Mr. Tsosie names the Federal Bureau of Prisons (BOP) and the "Employees of the United States" as Defendants. (Doc. 1, Compl.)
The Defendants have filed a motion to dismiss under Fed. R. Civ. P. 12(b), contending Mr. Tsosie has not alleged facts sufficient to support a claim of physical injury based on the allegations of the Complaint, and alternatively, if he has made such a showing he has failed to identify damages or a causal link between any harm sustained and the alleged negligence of a government employee. Finally, Defendants argue this Court lacks subject matter jurisdiction over Mr. Tsosie's claims brought pursuant to the Indian Tucker Act. For the reasons that follow, the motion will be granted in part and denied in part.
In considering a motion to dismiss, "[w]e 'accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'" Byers v. Intuit, Inc., 600 F.3d 286, 291 (3d Cir. 2010) (quoted case omitted). To survive a motion to dismiss, a complaint must allege sufficient facts, if accepted as true, state "a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when a plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678, 129 S.Ct. at 1949. The court is " 'not bound to accept as true a legal conclusion couched as a factual allegation.' " Id. at 678, 129 S.Ct. at 1950 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. at 1965); see also PA Prison Soc. v. Cortes, 622 F.3d 215, 233 (3d Cir. 2010).
In resolving a motion to dismiss pursuant to Rule 12(b)(6), a district court's "inquiry is normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged." Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). If a party opposing a motion to dismiss does not "nudge [his] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Twombly, 550 U.S. at 570, 127 S.Ct. at 1974.
Pro se pleadings are held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009). However, under no circumstance is a court required to accept bald assertions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. See In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 215 (3d Cir. 2002); Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 n. 8 (3d Cir. 1997). Pro se litigants are to be granted leave to file a curative amended complaint even when a plaintiff does not seek leave to amend, unless such an amendment would be inequitable or futile. See DelRio-Mocci v. Connonlly Prop., Inc., 672 F.3d 241, 251 (3d Cir. 2012). However, a complaint that sets forth facts which affirmatively demonstrate that the plaintiff has no right to recover is properly dismissed without leave to amend. Grayson v. Mayview State Hospital, 293 F.3d 103, 106 (3d Cir. 2002).
Plaintiff alleges as follows. Mr. Tsosie is an "American Indian of the Navajo tribe." (Doc. 1, Compl. at ECF p. 4.) On December 21, 2008, he and two other Native American inmates were transferred, from USP-Hazelton to USP-Canaan. Their transport from USP-Hazelton to USP-Canaan, which included a stop at USPAllenwood, lasted approximately 10 to 11 hours. (Id., ECF pp. 4-5.) The van stopped at USP-Allenwood for about an hour. During this time, the BOP staff had the opportunity to use the toilet but Mr. Tsosie and the other inmates did not. (Id., ECF p. 3.) When requests were made to use the toilet, the inmates were told "We're almost their (sic)". (Id.) As a result, Mr. Tsosie suffered extreme kidney pain and had a painful bowel movement. (Id.)
During the transport, the BOP officers driving the four wheel drive van were restrained in seat belts while the inmates were in hand and leg restraints. (Id., ECF p. 5.) It was snowing that day and the roads were slushy. (Id.) The transport officer drove at speeds in excess of 100 miles per hour. (Id.) At one point during the trip, the van ran off the road because the window got covered with slush from other vehicles. (Id.) When Mr. Tsosie and the other inmates expressed their apprehension about the van driver's speed given the snowy road conditions, the officers just laughed. (Id.) Mr. Tsosie states he was in duress during the van ride because he thought they were going to wreck. (Id.)
A. The Only Proper Defendant in an FTCA suit is the ...