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Miller v. United States

United States District Court, M.D. Pennsylvania

November 6, 2014

DERRICK EARL MILLER, Plaintiff,
v.
UNITED STATES, Defendant.

MEMORANDUM

MALACHY E. MANNION, District Judge.

I. Background

Plaintiff, Derrick Earl Miller, an inmate confined in the United States Penitentiary, Lewisburg, Pennsylvania, filed the above captioned Federal Tort Claims Act (FTCA) action pursuant to §28 U.S.C. 2671, et seq., alleging two instances of staff assault, battery, and negligence on July 15 and August 11, 2013. (See Doc. 1).

Specifically, Plaintiff states that "on July 15, 2013, between the hours of 9:00 am and 10:29 am, Officer S. Buedendorf came to the Plaintiff's cell, opened up the cell door window cover, pointed at the Plaintiff and stated, I got something for your ass'." (Doc. 1 at 2). Following this statement, Officer Buedendorf allegedly "came to the Plaintiff's cell along with Officer C. Brininger and handcuffed the Plaintiff and his cellmate." Id . Plaintiff states that "after [he] was subdued in handcuffs behind his back, Officer S. Buedendorf and Officer Brininger extracted the Plaintiff from his cell for no justifiable reason but to assault the Plaintiff and after being extracted from his cell, the Plaintiff was escorted to the third floor shower, which is a blind spot with no cameras, and both officers proceeded to slam the Plaintiff face first into the ground, meanwhile the Plaintiff's hands were restrained behind his back, and the Plaintiff was not resisting in any shape, form or fashion." (Doc. 1 at 3). After being slammed on the face, Plaintiff claims that his "right eye began to swell immediately, and both officers starting kicking and punching the Plaintiff, while the Plaintiff was facedown on the ground subdued in handcuffs behind his back." Id.

Immediately following the incident, Plaintiff states that he was "placed in hard metal restraints (i.e. hard handcuffs attached to a belly chain and hard metal shackles) which were applied extremely tight in a manner that caused permanent scaring on the Plaintiff's wrist, abdomen, back and ankles", and which "can still be visibly seen going around the Plaintiff's abdomen and back." Id . Plaintiff claims that he was "left in hard metal ambulatory restraints for 24 hours in violation of 28 C.F.R. §552.22 (c)(f), which states that restraints may only remain on an inmate until self-control is regained." (Doc. 1 at 4). Plaintiff believes that because "the lieutenants were able to do restraint checks" and "medical was able to conduct restraint checks without any resistance, therefore self-control had been regained, but medical personnel was negligent when they performed their restraint checks and they concurred to leave [Plaintiff] in restraints, even though they were aware that the hard restraints were causing the Plaintiff injury." Id.

On August 11, 2013, Plaintiff states that while being extracted from his cell during a cell rotation, officers "slammed the Plaintiff on the floor and lied like the Plaintiff assaulted an officer, but the Plaintiff was subdued in handcuffs behind his back in total compliance." Id . He claims that Officer C. Brininger told him that "since you keep trying to mail letters out and get BP8's regarding what happened, we got a new method for you." Id . Plaintiff was then "placed back into hard metal ambulatory restraints." Id.

Plaintiff claims that while in restraints, he "did not receive proper medical care for his wounds, instead the lieutenants and nurses falsified government documents when they conducted ambulatory restraint checks, so/that they could justify torturing the Plaintiff." (Doc. 1 at 5). While in restraints, Plaintiff states that he suffered "lacerations, cuts, nerve damage, and severe swelling and discoloration in the Plaintiff's wrist, ankles, abdomen, and back." Id.

On February 28, 2014, Plaintiff filed the instant action in which he claims that "the aforementioned federal prison officials exhibited negligence and assault and battery, which caused actual injury to the Plaintiff." Id . As such, he is filing his complaint under the Federal Tort Claim Act, pursuant to 28 U.S.C. §1346(6)" which "permits suit in federal court for damages for injury such as the personal injury caused by the negligent and wrongful acts of the aforementioned federal prison officials who acted within the scope of their employment. Id . For relief, Plaintiff seeks compensatory damages, as well as "to be examined by an outside physician." Id.

Presently before the Court is Defendant's motion for summary judgment. (Doc. 14). The motion has been fully briefed and is ripe for disposition. For the reasons that follow, Defendant's motion for summary judgment will be granted.

II. Summary Judgment

Pursuant to Federal Rule of Civil Procedure 56(a) "[t]he court shall grant summary judgment if the movant 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); see also Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 (1986) (emphasis in original).

A disputed fact is "material" if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law. Anderson , 477 U.S. at 248; Gray v. York Newspapers, Inc. , 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson , 477 U.S. at 257; Brenner v. Local 514, United Brotherhood of Carpenters and Joiners of America , 927 F.2d 1283, 1287-88 (3d Cir. 1991).

When determining whether there is a genuine issue of material fact, the court must view the facts and all reasonable inferences in favor of the nonmoving party. Moore v. Tartler , 986 F.2d 682 (3d Cir. 1993); Clement v. Consolidated Rail Corporation , 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric Company , 862 F.2d 56, 59 (3d Cir. 1988). In order to avoid summary judgment, however, parties may not rely on unsubstantiated allegations. Parties seeking to establish that a fact is or is not genuinely disputed must support such an assertion by "citing to particular parts of materials in the record, " by showing that an adverse party's factual assertion lacks support from cited materials, or demonstrating that a factual assertion is unsupportable by admissible evidence. Fed.R.Civ.P. 56(c)(1); see Celotex , 477 U.S. at 324 (requiring evidentiary support for factual assertions made in response to summary judgment). The party opposing the motion "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio , 475 U.S. 574, 586 (1986). Parties must produce evidence to show the existence of every element essential to its case that they bear the burden of proving at trial, for "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex , 477 U.S. at 323; see Harter v. G.A.F. Corp. , 967 F.2d 846, 851 (3d Cir.1992). Failure to properly support or contest an assertion of fact may result in the fact being considered undisputed for the purpose of the motion, although a court may also give parties an opportunity to properly provide support or opposition. Fed.R.Civ.P. 56(e).

III. Statement of Facts

On July 15, 2013, Incident Report No. 2468088 was issued to Plaintiff for Assault on Staff, Code violation 224, and Refusal to Obey an Order, Code violation 307. (Doc. 18-1 at 26, Incident Report). The incident report, which was written by Senior Officer S. Buedendorf, reads as follows:

On the above date and approximate time, I was escorting inmate MILLER, D (#XXXXX-XXX) back from the third floor shower to Cell 326, after a routine cell search. Upon stepping from the shower room, I/M Miller kicked up with the heel of his left foot, attempting to strike my groin, but struck my upper left inner thigh. I then placed I/M Miller onto the landing floor outside of the showers to attempt to regain control. Once on the floor, I/M Miller was constantly aggressive, continuing in his attempts to kick me repeatedly. I gave several direct orders to cease his actions, but I/M Miller continued his aggressive actions until responding staff arrived on scene. I have been medically assessed fit to return to duty and lost no equipment.

Id.

On September 4, 2013, Plaintiff appeared for a hearing before Discipline Hearing Officer ("DHO"), A. Jordan. (Id. at 28-30, DHO Report). Petitioner was found guilty of the prohibited act of Conduct which Disrupts, most like Assaulting any Person, a Code 299/224 violation. Id . Specifically, the DHO found that as staff tried to escort Miller back to his cell, he became disruptive, kicked up at a staff member trying to hit the officer in the groin, but struck his upper thigh. Id . Staff tried to gain control of Miller but he continued to be aggressive. Id . The DHO sanctioned Miller to the disallowance of twenty-seven (27) days of good conduct time, thirty (30) days disciplinary segregation, and five (5) months loss of visiting, telephone and commissary privileges. Id.

Incident Report 2468088 remains on Miller's disciplinary record and has never been expunged. (See Doc. 18-1 at 7, Chronological Disciplinary Record).

On August 11, 2013, Incident Report No. 2478910 was issued to Plaintiff for Assaulting Any Person, Code violation 224A. (Doc. 18-1 at 53, Incident Report). The incident report, which was written by Senior Officer S. Buedendorf, reads as follows:

On the above date at approximately 8:36 AM while conducting 21 day cell rotations I removed I/M Miller #XXXXX-XXX from cell 112. While attempting to pat search him he became aggressive, specifically he attempted to break free of my control and dove towards Officer Miller's lower body. I immediately placed him on the ground to regain control. While on the ground I/M Miller continued to actively resist by kicking his legs towards myself and responding staff.

Id.

On August 21, 2013, Plaintiff appeared for a hearing before Discipline Hearing Officer ("DHO"), A. Jordan. (Id. at 55-58, DHO Report). Petitioner was found guilty of the prohibited act of Conduct which Disrupts, most like Attempted Assault on any Person, a Code 299/224A violation. Id . Specifically, the DHO found that after trying to pat search Miller, he became aggressive, tried to break free of staff's control, kicked at officers, and dove towards officers in an aggressive manner. See id. The DHO found against Miller's version that he felt dizzy and fell to the feet of staff. Id . The DHO sanctioned Miller to the disallowance of twenty-seven (27) days of good conduct time, thirty (30) days disciplinary segregation, and four (4) months loss of visiting, telephone and commissary privileges. Id.

Incident Report 2478910 remains on Miller's disciplinary record and has never been expunged. (See Doc. 18-1 at 7, Chronological Disciplinary Record).

On October 10, 2013, the Bureau of Prisons' Northeast Regional Office received administrative tort claim TRT-NER-2014-00518 from Miller. (Doc. 18-1 at 67-69, Claim for Damage, Injury or Death). The administrative tort claim alleged that, on August 11, 2013, Miller was physically assaulted by officers during a cell rotation and placed in ambulatory restraints that were too tight. Id . Miller sought to be compensated in the amount of $1, 000, 000. Id.

On October 15, 2013, the Bureau of Prisons' Regional Office received administrative tort claim TRT-NER-2014-00509 from Miller. (Doc. 18-1 at 63-65). The administrative tort claim alleged that, on July 15, 2013, Miller was physically assaulted by officers after being pulled out of his cell and escorted to the shower area. Id . Miller sought to be compensated in the amount of $1, 000, 000. Id.

On February 28, 2014, Miller filed the above captioned action in this Court. (Doc. 1).

On April 9, 2014, the Northeast Regional Counsel's Office denied administrative tort claim TRT-NER-2014-00518. (Doc. 18-1 at 69, Letter Decision). The Region notified Miller he could "bring an action against the United States in an appropriate United States District Court within six (6) months of the date of this memorandum." See id.

On April 14, 2014, the Region denied administrative tort claim TRT-NER-2014-00509. (Doc. 18-1 at 65, Letter Decision). The Region notified Miller that he could "bring an action against the United States in an appropriate United States District Court within six (6) months of the date of this memorandum." See id.

IV. Discussion

A. FTCA Claim

As a prerequisite to suit under the FTCA, a claim must first be presented to the federal agency and be denied by the agency, or be deemed to be denied. Section 2675(a) of Title 28, United States Code, provides in pertinent part:

An action shall not be instituted against the United States for money damages for injury or loss of property or personal injury... unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of the agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section....

The plaintiff has the burden of demonstrating that the agency actually received the administrative claim. Lightfoot v. United States , 564 F.3d 625 (3d Cir.2009). This burden rests with the plaintiff because, in general, the United States enjoys sovereign immunity from suit unless it otherwise consents to be sued. White-Squire v. U.S. Postal Serv. , 592 F.3d 453, 456 (3d Cir.2010). The United States' "consent to be sued must be unequivocally expressed, ' and the terms of such consent define the court's subject matter jurisdiction." Id . The Federal Tort Claims Act constitutes "a limited waiver of the United States's sovereign immunity." Id . The FTCA provides that the United States shall be liable, to the same extent as a private individual, "for injury or loss of property, or personal injury or death 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[.]" 28 U.S.C. §1346(b)(1); see also 28 U.S.C. §2674.

Prior to commencing an FTCA action against the United States in federal court, however, a plaintiff must "first present[ ] the claim to the appropriate Federal agency" and receive a final denial "by the agency in writing and sent by certified or registered mail." 28 U.S.C. §2675(a). A claim is considered to be presented when the federal agency receives written notification of the alleged tortious incident and the alleged injuries, together with a claim for money damages in a sum certain. 28 C.F.R. §14.2(a). If the receiving federal agency fails to make a final disposition of the claim within six months from the time it is filed, that failure is "deemed a final denial of the claim" for purposes of commencing suit under the FTCA. 28 U.S.C. §2675(a).

The Third Circuit has instructed that "[i]n light of the clear, mandatory language of the statute, and [the] strict construction of the limited waiver of sovereign immunity by the United States, ... the requirement that the appropriate federal agency act on a claim before suit can be brought is jurisdictional and cannot be waived." Roma v. United States , 344 F.3d 352, 362 (3d Cir.2003) (citing Livera v. First Nat'l Bank of New Jersey , 879 F.2d 1186, 1194 (3d Cir.1989)). The Supreme Court has likewise succinctly explained that "[t]he FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies." McNeil v. United States , 508 U.S. 106, 113 (1993). As a result, a district court may dismiss a claim brought under the FTCA for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) where the plaintiff has not exhausted his administrative remedies prior to filing suit. See, e.g., Abulkhair v. Bush , 413 F.Appx. 502, 506 (3d Cir.2011); Accolla v. United States Gov't , 369 F.Appx. 408, 409-10 (3d Cir.2010) (finding the district court properly dismissed FTCA claim where the plaintiff filed federal suit prior to exhausting administrative remedies).

As is apparent from the undisputed facts, Miller filed two administrative tort claims in October, 2013. The Bureau of Prisons then had six months to make a final decision on his claims. If no final disposition was received within the six months, Miller had the option to treat this silence as a final denial of the claims, and file suit against the United States in federal court. Miller, however, did not wait to receive a final decision, or for the six months to pass. Instead, he filed the above captioned action on February 28, 2014, after waiting only four months.

Because Miller had to file his administrative tort claim with the Bureau of Prisons and receive a final denial of his claims pursuant to 28 U.S.C. §2675(a) prior to filing his lawsuit, and he failed to do so, this Court lacks jurisdiction over the claims. McNeil v. United States , 508 U.S. 106, 111-112 (1993) (holding that a court is without jurisdiction to rule on a prematurely filed action even if an agency denies the related administrative claim soon after the federal lawsuit is filed); Accolla v. United States , 369 F.Appx. 408, 409-10 (3d Cir. 2010) (holding "because Accolla filed his FTCA action in federal court before [the agency's ruling on his administrative tort claim] and before the expiration of the appropriate six month period, the District Court was without jurisdiction to rule on the FTCA claim."); Roma v. United States , 344 F.3d 352, 363 (3d Cir. 2003) (noting "the requirement that the appropriate federal agency act on a claim before suit can be brought is jurisdictional and cannot be waived.").

To the extent that Miller argues in his brief in opposition that he "followed through many time on their Administrative Remedy System all the way to Central Office Washington, D.C., in to the Region Office on August 30, 2013", (Doc. 20 at 2, Brief in Opposition), Miller's completion of the BOP's administrative remedy process set forth at 28 C.F.R. §542, et seq., however, does not satisfy the exhaustion requirements of the FTCA. See Robinson v. United States , 2014 WL 2940454, *6 (M.D. Pa. Jun. 30, 2014) (recognizing that "an inmate may not rely upon the submission of prison grievances to satisfy his separate and independent exhaustion obligation under the FTCA"). Consequently, the Court does not have jurisdiction to hear Miller's tort claim, and the Defendant is entitled to summary judgment.

B. Claims Based on Disciplinary Proceedings

The sanctions levied against Miller were all imposed as a result of prison misconduct. As such, the Court finds that any claim for monetary damages regarding his disciplinary hearing is barred under Heck v. Humphrey , 512 U.S. 477 (1994) and Edwards v. Balisok , 520 U.S. 641 (1997).

A prisoner cannot bring an action for monetary damages against prison officials relating to procedural errors in a disciplinary proceeding when a judgment in favor of the inmate would necessarily imply the invalidity of the disciplinary hearing, unless the inmate can demonstrate that the disciplinary finding has previously been invalidated. See Edwards v. Balisok , 520 U.S. 641 (1997).

In Heck v. Humphrey , 512 U.S. 477 (1994), the Supreme Court held that a person convicted of a criminal offense could not bring a civil rights action challenging any aspect of the criminal conviction without first using appropriate procedural mechanisms to overturn the criminal proceeding. Later, in Balisok , 520 U.S. at 646, the Supreme Court extended the rationale of Heck to disciplinary proceedings in the prison context, holding an inmate may not bring a civil rights action for damages related to an inmate disciplinary proceeding without first challenging and overturning, via the appropriate proceedings, the disciplinary hearing in question. See id. "Similarly, plaintiff's claims are not cognizable under the FTCA insofar as a ruling in plaintiff's favor would imply the invalidity of plaintiff's disciplinary conviction." Hinton v. United States, 91 Fed.Appx. 491, 493 (6th Cir. 2004) (citing Parris v. United States , 45 F.3d 383, 385 (10th Cir. 1995); Butcher v. United States, 2007 WL 2207902, *3 (M.D. Pa. Jul. 30, 2007).

There is no evidence of record demonstrating that Miller's disciplinary sanctions have ever been called into question, or overturned through a collateral action, such as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. In fact, the record evidence reveals that these sanctions still remain on Miller's disciplinary record. Consequently, Miller's claims are plainly barred by Heck and Edwards, and the United States is entitled to summary judgment.

V. Conclusion

Based upon the undisputed facts of record, Defendant is entitled to summary judgment with respect to Plaintiff's FTCA Claim and his request for damages regarding his disciplinary proceedings. An appropriate order shall issue.

Corey Robinson, Waymart, PA, pro se.

Justin Blewitt, U.S. Attorney's Office, Scranton, PA, for Defendant.

MEMORANDUM

EDWIN M. KOSIK, District Judge.

*1 Before the court are Plaintiffs Objections (Doc. 33) to the Report and Recommendation of Magistrate Judge Martin C. Carlson dated May 21, 2014 (Doc. 32). For the reasons which follow, we will adopt the Report and Recommendation of the Magistrate Judge.

BACKGROUND

Plaintiff, Corey Robinson, an inmate confined at the United States Penitentiary-Canaan, Waymart, Pennsylvania, filed the instant action pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2675, et. seq. The basis of the action is a salmonella outbreak at the prison. The Defendant, United States of America, filed a Motion to Dismiss the Complaint (Doc. 21), alleging that Plaintiff failed to exhaust the administrative tort claim process set out in the FTCA. In response, Plaintiff set forth his exhaustion efforts through the prison grievance system (Docs.25-28).

On May 21, 2014, the Magistrate Judge issued a Report and Recommendation (Doc 32), wherein he recommended that the Motion to Dismiss be granted, but without prejudice to the re-filing of a Complaint, if and when Plaintiff completes the process of exhausting his administrative tort claims. Specifically, the Magistrate Judge found that while Plaintiff may have attempted to satisfy the administrative exhaustion requirements through the prison grievance system, he failed to exhaust his tort claim under the process mandated under the FTCA. As the Magistrate Judge points out, as a prerequisite to filing suit under the FTCA, a claim must first be presented to the appropriate federal agency. Moreover, the requirement that the appropriate federal agency act on a claim before suit can be brought is jurisdictional and can't be waived.

In his Objections, plaintiff discusses exhaustion of administrative remedies as it relates to the prison grievance system required under the Prison Litigation Reform Act, 42 U.S.C. § 1997 e(a). Plaintiff also raises the issue of unavailability of administrative remedies.

As discussed by the Magistrate Judge, there is a distinction between the type of administrative exhaustion of inmate grievances required by the Prison Litigation Reform Act ("PLRA") and the administration exhaustion requirement mandated by the FTCA. Further, an inmate may not rely upon the submission of prison grievances to satisfy his separate and independent exhaustion requirement under the FTCA. While Plaintiff asserts that he has filed B.P. forms for the exhaustion of administrative remedies under the prison grievance system, he does not address the Defendant's representation that he has failed to follow the exhaustion requirements of the FTCA.

Because proof of exhaustion of prison grievances does not satisfy the separate administrative exhaustion requirements under the FTCA, we will adopt the Report and Recommendation of the Magistrate Judge. The Defendant's Motion to Dismiss (Doc. 21) will be granted and the Plaintiffs Complaint will be dismissed without prejudice so that he can re-file his Complaint as a new action if and when he fully exhausts his administrative tort claim under the FTCA. An appropriate Order will follow.

ORDER

*2 AND NOW, THIS 30th DAY OF JUNE, 2014, IT IS HEREBY ORDERED THAT:

(1) The Report and Recommendation of Magistrate Judge Martin C. Carlson filed May 21, 2014 (Doc. 32) is ADOPTED;

(2) The Defendant's Motion to Dismiss (Doc. 21) is GRANTED;

(3) Plaintiffs Complaint is DISMISSED without prejudice to re-file this Complaint if and when Plaintiff fully exhausts his administrative tort claim under the FTCA; and

(4) The Clerk of Court is directed to CLOSE this case and to FORWARD a copy of this Memorandum and Order to the Magistrate Judge.

REPORT AND RECOMMENDATION

MARTIN C. CARLSON, United States Magistrate Judge.

I. Statement of Facts and of the Case

The pro se plaintiff is a federal prisoner, who was formerly housed at the United States Penitentiary-Canaan in the summer of 2011. The plaintiff is currently suing the United States, alleging that in June of 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, vomiting, inability to eat and profuse sweating. ( Id. ) Alleging negligence on the part of the prison in the preparation and service of this food, the plaintiff has brought this action seeking damages from the United States, pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2675, et seq.

On December 9, 2013, the defendant filed a motion to dismiss this complaint, which we also construed as a motion for summary judgment. (Doc. 21.) This motion alleged that the plaintiff had failed to exhaust his administrative remedies within the prison before filing this lawsuit, something that prisoner plaintiffs are required by law to do as a prerequisite to seeking relief in federal court. In support of this motion, the defendant submitted a declaration which attested that Robinson never filed an administrative tort claim of the type prescribed by the FTCA, a Form SF 95 or its equivalent. (Doc. 22-1.) For his part, Robinson alleges that he attempted to satisfy this administrative exhaustion requirements, but Robinson describes exhaustion efforts through the prison grievance system, a remedial system which is wholly separate from the type of exhaustion process mandated under the FTCA for tort claims. (Doc. 26.) On these facts, the defendant has now moved to dismiss this complaint, citing the plaintiffs failure to exhaust administrative remedies within the prison system prior to filing this complaint. Such administrative exhaustion is required by law before an inmate may proceed into federal court. The parties have fully briefed this motion, and this motion is, thus, ripe for resolution.

For the reasons set forth below, it is recommended that the motion to dismiss be granted, but without prejudice to the re-filing of a complaint if and when the plaintiff completes the process of exhausting his administrative tort claims.

II. Discussion

A. The Parties's Burdens of Proof and Persuasion

1. Motion to Dismiss Rule 12(b)(1)

*3 The defendant moved to dismiss this FTCA claim for failure to exhaust pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Rule 12(b)(1) permits the dismissal of an action for "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. See Mortensen v. First Fed. Sav. and Loan Assn, 549 F.2d 884, 891 (3d Cir.1977). In reviewing a facial attack, the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff See id. PBGC v. White, 998 F.2d 1192, 1196 (3d Cir.1993). In reviewing a factual attack, the court may consider evidence outside the pleadings. See Gotha v. United States, 115 F.3d 176, 178-79 (3d Cir.1997) ( citing Mortensen, 549 F.2d at 891). Gould Electronics Inc. v. United States, 220 F.3d 169, 176 (3d Cir.2000) (footnote omitted) holding modified on other grounds by Simon v. United States, 341 F.3d 193 (3d Cir.2003).

Here, the defendant's motion presents a factual attack upon subject matter jurisdiction, arguing that this Court lacks jurisdiction over this claim due to the plaintiffs failure to exhaust his administrative remedies. When presented with such a fact-bound jurisdictional challenge are cautioned that:

A factual challenge contests the existence of subject matter jurisdiction, apart from any pleadings. Id. In reviewing a factual challenge, the court "is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case, " even where disputed material facts exist. Mortensen, 549 F.2d at 891. In a factual challenge, the plaintiff has the burden of persuasion to show that jurisdiction exists. Gould, 220 F.3d at 178; Mortensen, 549 F.2d at 891. If the defendant presents evidence contesting any allegations in the pleadings, the presumption of truthfulness does not attach to the plaintiffs allegations and the plaintiff may present facts by affidavit or deposition or in an evidentiary hearing. Gould, 220 F.3d at 177; Mortensen, 549 F.2d at 891, 893 n. 18. "[I]f there is a dispute of material fact, the court must conduct a plenary trial on the contested facts prior to making a jurisdictional determination." Gould, 220 F.3d at 177.

Mover Packing Co. v. United States, 567 F.Supp.2d 737, 748 (E.D.Pa.2008).

2. Summary Judgment Motion-Rule 56

Moreover, to the extent that this motion presents matters beyond the pleadings, in the form of competing declarations by the defendant and plaintiff, we have also previously placed the parties on notice that we may treat this motion as a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Rule 56 provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P., Rule 56(a). Through summary adjudication a court is empowered to dispose of those claims that do not present a "genuine issue as to any material fact, " Fed.R.Civ.P. 56, and for which a trial would be "an empty and unnecessary formality." Univac Dental Co. v. Dentsply Inc., No. 07-0493, 2010 U.S. Dist. LEXIS 31615, at *4 (M.D.Pa. Mar. 31, 2010).

*4 The substantive law identifies which facts are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute about a material fact is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Id. at 248-49.

The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir.2004). Once the moving party has shown that there is an absence of evidence to support the nonmoving party's claims, "the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument." Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir.2006); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial, " summary judgment is appropriate. Celotex, 477 U.S. at 322. Summary judgment is also appropriate if the non-moving party provides merely colorable, conclusory, or speculative evidence. Anderson, 477 U.S. at 249. There must be more than a scintilla of evidence supporting the nonmoving party and more than some metaphysical doubt as to the material facts. Id. at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In making this determination, the court must "consider all evidence in the light most favorable to the party opposing the motion." A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir.2007).

Further, a party who seeks to resist a summary judgment motion by citing to disputed material issues of fact must show by competent evidence that such factual disputes exist. In this regard, "only evidence which is admissible at trial may be considered in ruling on a motion for summary judgment." Countryside Oil Co., Inc. v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J.1995). Similarly, it is well-settled that: "[o]ne cannot create an issue of fact merely by... denying averments... without producing any supporting evidence of the denials." Thimons v. PNC Bank, NA, 254 F.Appx. 896, 899 (3d Cir.2007) (citation omitted). Thus, "[w]hen a motion for summary judgment is made and supported..., an adverse party may not rest upon mere allegations or denial." Fireman's Ins. Co. of Newark N.J. v. DuFresne, 676 F.2d 965, 968 (3d Cir.1982), see Sunshine Books, Ltd. v. Temple Univ., 697 F.2d 90, 96 (3d Cir.1982). "[A] mere denial is insufficient to raise a disputed issue of fact, and an unsubstantiated doubt as to the veracity of the opposing affidavit is also not sufficient." Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir.1969). Furthermore, "a party resisting a [Rule 56] motion cannot expect to rely merely upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy , 762 F.2d 338, 341 (3d Cir.1985) (citing Ness v. Marshall, 660 F.2d 517, 519 (3d Cir.1981)).

B. The FTCA's Administrative Exhaustion Requirement

*5 In this case it is alleged that the plaintiff did not fully exhaust his administrative remedies before bringing this FTCA action. The plaintiffs alleged failure to exhaust these administrative remedies may have substantive significance for the plaintiff since as a prerequisite to suit under the FTCA, a claim must first be presented to the federal agency and be denied by the agency, or be deemed to be denied. Section 2675(a) of Title 28, United States Code, provides in pertinent part:

An action shall not be instituted against the United States for money damages for injury or loss of property or personal injury... unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of the agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section....

In general, the United States enjoys sovereign immunity from suit unless it otherwise consents to be sued. White-Squire v. U.S. Postal Serv., 592 F.3d 453, 456 (3d Cir.2010). The United States'"consent to be sued must be unequivocally expressed, ' and the terms of such consent define the court's subject matter jurisdiction." Id. The Federal Tort Claims Act constitutes "a limited waiver of the United States's sovereign immunity." Id. The FTCA provides that the United States shall be liable, to the same extent as a private individual, "for injury or loss of property, or personal injury or death 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 [.]" 28 U.S.C. § 1346(b)(1); see also 28 U.S.C. § 2674. Therefore, prior to commencing an FTCA action a plaintiff must comply with the procedural prerequisites set forth by the FTCA. Such procedural compliance is the price plaintiff must pay to take advantage of the limited waiver of sovereign immunity provided by the FTCA.

Thus, prior to commencing an FTCA action against the United States in federal court, a plaintiff must "first present[] the claim to the appropriate Federal agency" and receive a final denial "by the agency in writing and sent by certified or registered mail." 28 U.S.C. § 2675(a). A claim is considered to be presented when the federal agency receives written notification of the alleged tortious incident and the alleged injuries, together with a claim for money damages in a sum certain, in the form prescribed by federal regulations. 28 C.F.R. § 14.2(a). If the receiving federal agency fails to make a final disposition of the claim within six months from the time it is filed, that failure is "deemed a final denial of the claim" for purposes of commencing suit under the FTCA. 28 U.S.C. § 2675(a).

The Third Circuit has instructed us that "[i]n light of the clear, mandatory language of the statute, and [the] strict construction of the limited waiver of sovereign immunity by the United States, ... the requirement that the appropriate federal agency act on a claim before suit can be brought is jurisdictional and cannot be waived." Roma v. United States, 344 F.3d 352, 362 (3d Cir.2003) (citing Livera v. First Nat'l Bank of New Jersey, 879 F.2d 1186, 1194 (3d Cir.1989)). The Supreme Court has likewise succinctly explained that "[t]he FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies." McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993). As a result, a district court may dismiss a claim brought under the FTCA for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) where the plaintiff has not exhausted his administrative remedies prior to filing suit. See, e.g., Abulkhair v. Bush, 413 F.Appx. 502, 506 (3d Cir.2011); Accolla v. United States Gov't, 369 F.Appx. 408, 409-10 (3d Cir.2010) (finding the district court properly dismissed FTCA claim where the plaintiff filed federal suit prior to exhausting administrative remedies).

*6 In this regard, it must be emphasized that full administrative exhaustion is a jurisdictional prerequisite to filing a lawsuit. Therefore, where an FTCA lawsuit is filed before the exhaustion process is completed, we are compelled to dismiss that action. Miller v. United States, 517 F.Appx. 62, 63 (3d Cir.2013); Roma v. United States, 344 F.3d 352, 362 (3d Cir.2003). In short, given the jurisdictional nature of this exhaustion requirement, when an inmate files an FTCA lawsuit before he receives a final denial of his administrative tort claim, "the District Court [i]s without jurisdiction to rule on the FTCA claim[, ] See McNeil, 508 U.S. at 111-12, 113 S.Ct. 1980, 124 L.Ed.2d 21 (holding that a court is without jurisdiction to rule on a prematurely filed action even if an agency denies the related administrative claim soon after the federal lawsuit is filed), " Accolla v. U.S. Gov't, 369 F.Appx. 408, 410 (3d Cir.2010), and the claim must be dismissed.

Moreover, caselaw also recognizes that there is a fundamental distinction between the type of administrative exhaustion of inmate grievances through a prison grievance system that is required by the Prison Litigation Reform Act of 1996 (the "PLRA") 42 U.S.C. § 1997e(a), before bringing a Bivens constitutional tort claim against individuals, and the separate administrative exhaustion requirement mandated by the FTCA before inmate may pursue tort claims against the United States. West v. Shultz, 1:CV-12-1004, 2014 WL 1668093, *6-9 (M.D.Pa. Apr.24, 2014). Given the existence of these two separate administrative processes, and the very different purposes served by these two parallel processes, an inmate may not rely upon the submission of prison grievances to satisfy his separate and independent exhaustion obligation under the FTCA. As this Court has recently observed:

Because of the mandatory exhaustion procedures under both the PLRA and the FTCA, and the separate purposes of these procedures with respect to the different claims, courts have consistently held that fulfillment of one exhaustion requirement does not satisfy the other. See Lambert v. United States, 198 F.Appx. 835, 840 (11th Cir.2006); Brockett v. Parks, 48 F.Appx. 539, 541 (6th Cir.2002). This Court has also made clear that the administrative exhaustion requirements under the PLRA and the FTCA are separate and distinct, and that each must be independently followed in order for an inmate to maintain Bivens and negligence claims in the same action. See Williams v. Bledsoe, Civ. No. 3:CV-12-1235, 2013 WL 5522848 *19-20 (M.D.Pa. Oct.3, 2013) (Caputo, J.); Lopez v. Brady, Civ. No. 4:CV-07-1126, 2008 WL 4415585, at *10 (M.D.Pa.Sept.25, 2008) (McClure, J.)

West v. Shultz, LCV-12-1004, 2014 WL 1668093, *9 (M.D.Pa. Apr.24, 2014). See, e.g., Williams v. Bledsoe, 3:CV-12-1235, 2013 WL 5522848 (M.D.Pa. Oct.3, 2013) ("Because of the mandatory exhaustion procedures under both the PLRA and the FTCA, and the separate purposes of these procedures with respect to these different claims, courts have consistently held that fulfillment of one exhaustion requirement does not satisfy the other."); McKreith v. Endicott , Civ. A. No. 11-CV-105, 2013 WL 990836, at *4 (E.D.Ky. Mar.12, 2013) ("The fact that the administrative remedies filed by [plaintiff] regarding his tort claim were somewhat related to the allegations in his Bivens complaint against [the defendant] does not cure his failure to properly exhaust his administrative remedies."); Gaughan v. U.S. Bureau of Prisons, No. 02 C 0740, 2003 WL 1626674, at *2 (N.D.Ill.Mar.25, 2003) ("[A]nalysis of the case law persuades the court that the different administrative processes serve different functions and thus are not interchangeable."); Owusu v. Federal Bureau of Prisons, No. 02 Civ.0915, 2003 WL, 68031, at *2 (S.D.N.Y.Jan.7, 2003) ("Here, while the plaintiff did fully exhaust the available administrative remedies for his FTCA claim, he did not do so for his Bivens claim under the PLRA. The exhaustion procedures under the two statutes differ, and the fulfillment of one does not constitute satisfaction of the other."); Hylton v. Federal Bureau of Prisons, No. CV 00-5747, 2002 WL 720605, at *2 (E.D.N.Y. March 11, 2002) (finding that "it is entirely possible that [plaintiff] exhausted his administrative remedies for purposes of the FTCA without exhausting administrative remedies pursuant to the PLRA for purposes of filing a Bivens claim" because the plaintiff had failed to exhaust the BOP's four-step grievance procedure); cf. Funches v. Reish, No. 97 Civ. 7611, 1998 WL 695904, at *9 (S.D.N.Y. Oct. 5, 1998) (finding that a prisoner's FTCA claim was exhausted but that his Bivens claim was not).

C. The Plaintiffs Current Complaint Should Be Dismissed as Unexhausted But Without Prejudice to Re-filing This Action

*7 These legal tenets defining the jurisdictional nature of the FTCA's exhaustion requirement control here and compel dismissal of this complaint since the evidence shows that the defendant has never received a proper administrative tort claim from the plaintiff of the type required by the FTCA. Therefore, Robinson has not yet begun, much less completed, the form of administrative exhaustion mandated under by the FTCA. Moreover, recognizing that the plaintiff bears the burden under the FTCA of showing that he has filed proper administrative claims with the appropriate administrative agency, Medina v. City of Philadelphia, 219 Fed.Appx. 172 (3d Cir.2007) ("Plaintiff carries the burden of proof to establish presentment of her claim to HUD"); Livera v. First National State Bank of New Jersey, 879 F.2d 1186, 1195 (3d Cir.1989), we find that Robinson has not carried his burden of proof in this particular case. In this regard, Robinson's response to this FTCA exhaustion argument focuses almost exclusively upon his efforts at exhaustion of prison grievances, and does not touch upon the FTCA's separate exhaustion requirement in any persuasive or compelling way. Since "[t]his Court has also made clear that the administrative exhaustion requirements under the PLRA and the FTCA are separate and distinct, and that each must be independently followed, " West v. Shultz , 1:CV-12-1004, 2014 WL 1668093, *9 (M.D.Pa. Apr.24, 2014), proof of exhaustion of prison grievances simply does not satisfy Robinson's separate administrative exhaustion obligations under the FTCA. Therefore, it is recommended that this complaint be dismissed without prejudice to re-filing this action if, and when the plaintiff can fully satisfy the FTCA's exhaustion requirement.

We recommend this course mindful of the fact that pro se plaintiffs often should be afforded an opportunity to amend a complaint before the complaint is dismissed in its entirety, see Fletcher-Hardee Corp. v. Pote Concrete Contractors, 482 F.3d 247, 253 (3d Cir.2007), unless granting further leave to amend is not necessary in a case such as this where amendment would be futile or result in undue delay, Alston v. Parker, 363 F.3d 229, 235 (3d Cir.2004).

Here, we conclude that this rule applies with particular force and strongly favors dismissal of this complaint without prejudice to the re-filing of this action now that the plaintiff has satisfied the FTCA's exhaustion requirement. In particular we note that it cannot be said that the FTCA's statute of limitations would render this course of action futile. Rather, it is well-settled that: "the FTCA's statute of limitations is not jurisdictional, and thus in appropriate circumstances the equitable tolling doctrine can apply in actions under it. Huuhes v. United States, 263 F.3d 272, 278 (3d Cir.2001); see Hedges v. United States, 404 F.3d 744, 748 (3d Cir.2005) (federal courts apply equitable tolling to wide range of cases against the Government, including FTCA claims)." Santos ex rel. Beato v. United States, 559 F.3d 189, 194-95 (3d Cir.2009).

*8 Further, in the related context of inmate litigation under the Prison Litigation Reform Act, (PLRA), which also imposes an administrative exhaustion requirement upon prisoner-plaintiffs, it has been held that equitable tolling of any statute of limitations is appropriate while an inmate exhausts his administrative remedies. This conclusion has been consistently reached by those appellate courts which have addressed this question in precedential opinions. See e.g., Messa v. Goord, 652 F.3d 305, 310 (2d Cir.2011); Brown v. Valoff, 422 F.3d 926, 942-43 (9th Cir.2005); Johnson v. Rivera, 272 F.3d 519, 522 (7th Cir.2001); Brown v. Morgan 209 F.3d 595, 596 (6th Cir.2000). This view has also often been espoused by the United States Court of Appeals for the Third Circuit, albeit in non-precedential opinions, where the court of appeals has held that: [b]ecause exhaustion of prison administrative remedies is mandatory under the Prison Litigation Reform Act, the statute of limitations applicable to § 1983 actions may be tolled while a prisoner exhausts." Thommpson v. Pitkins , 514 F.Appx. 88, 90 (3d Cir.2013); Paluch v. Sec'y Pa. Dep't of Corr., 442 Fed.Appx. 690, 694 (3d Cir.2011) (same). See e.g., Ballard v. Williams, 3:10-CV-1456, 2010 WL 7809047 (M.D.Pa. Dec.9, 2010) report and recommendation adopted, 3:10-CV-1456, 2011 WL 5089726 (M.D.Pa. Oct.25, 2011); Ozoroski v. Maue, No. Civ. A. No. 08-0082, 2009 WL 414272, at *7 (M.D.Pa. Feb.18, 2009); Carter v. Pa. Dep't of Corrections, Civ. A. No. 08-0279, 2008 WL 5250433, at *11 (E.D.Pa. Dec.17, 2008) ("[T]he statute of limitations begins to run only when [a] plaintiff has exhausted his administrative remedies under the PLRA."); Cooper v. Beard, Civ. A. No. 06-0171, 2006 WL 3208783, at *8 (E.D.Pa. Nov.2, 2006) ("Because an inmate would be placed in a situation where his suit would either be barred from federal court for failure to exhaust administrative remedies under the PLRA, or time-barred because he had pursued those administrative remedies... the statute of limitations for an inmate's § 1983 claims are tolled while he exhausts his administrative remedies.").

We need not reach these statute of limitations issues at present since we are dismissing this action on other, exhaustion grounds. Suffice it to say that the FTCA's statute of limitations may be equitably tolled, and that any statute of limitations and equitable tolling analysis should await the filing of a new and fully exhausted complaint. Therefore, while we are compelled to dismiss the original complaint as unexhausted, that dismissal should be without prejudice to the re-filing of a complaint by the plaintiff as a new action, if an when the plaintiff completes the administrative agency exhaustion required by the FTCA. Indeed, we note that, in a variety of factual contexts, courts have expressly sanctioned dismissal of FTCA actions as unexhausted without prejudice in order to enable plaintiffs to perfect the exhaustion of their administrative remedies. See e.g., Wadhwa v. Nicholson, 367 F.Appx. 322, 325 (3d Cir.2010); McLaurin v. United States, 392 F.3d 774, 782 (5th Cir.2004); Konarski v. Brown, 03-5340, 2004 WL 1249346 (D.C.Cir. June 7, 2004); Bailey v. United States, 992 F.2d 1222 (10th Cir.1993). In short, in this setting dismissal of an unexhausted claim without prejudice is the preferred and proper course of action.

III. Recommendation

*9 Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the defendant's Motion to Dismiss (Doc. 21.), for failure to exhaust be GRANTED, and the plaintiffs complaint be dismissed, without prejudice to the re-filing of this complaint as a new action if an when the plaintiff fully exhausts his administrative tort claim under the FTCA. It is further recommended that the issue of the potential bar of the statute of limitations, and equitable tolling of the statute of limitations, be deferred for consideration when, and if, the plaintiff re-files this complaint.

The Parties are further placed on notice that pursuant to Local Rule 72.3:

Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.

Lester Butcher, Waymart, PA, pro se.

Dennis Pfannenschmidt, U.S. Attorney's Office, Harrisburg, PA, for Defendants.

MEMORANDUM

CHRISTOPHER C. CONNER, United States District Judge.

*1 Presently before the court is a motion to dismiss (Doc. 15) plaintiff Lester Butcher's ("Butcher") Federal Tort Claim Act FN1 ("FTCA") complaint pursuant to Fed.R.Civ.P. 12(b)(6), filed on behalf of the United States. For the reasons discussed below, defendant's motion will be granted and the claims against the United States Department of Justice and the Federal Bureau of Prisons will be dismissed for lack of jurisdiction.

FN1 The FTCA is the exclusive remedy for claims of tort against employees of the government. See U.S. v. Smith, 499 U.S. 160, 161-62, 111 S.Ct. 1180, 113 L.Ed.2d 134 (1991) (citing 28 U.S.C. § 2679(b)(1)); Schroh v. Catterson, 967 F.2d 929, 934 (3d Cir.1992).

I. Statement of Facts

Plaintiff filed an FTCA complaint on November 17, 2006, seeking monetary relief based on the negligent procedures employed during the course of his disciplinary proceeding. He alleges that on October 14, 2005, he received an incident report charging him with "Interfering with staff in performance of duties (high severity) and Most like Assaulting any person (minor assault)." (Doc. 2, p. 5). The incident was described by the reporting officer as follows:

On 10-13-05 at approximately 2:00 p.m., after completing a search of cell 224L A-1 unit, I walked out of the cell carrying confiscated items. Inmate Lester Butcher, #XXXXX-XXX, approached me and asked what I had. When 1 told him I was confiscating his head phones he said "no, those are mine" he then grabbed my hand and took the head phones from me. I then ordered him to return the head phones to me. He complied. I then notified the Operations Lieutenants. Inmate Butcher was medically assessed and no injuries were noted. I was medically assessed and had no injuries.

Id.

The disciplinary hearing was held on October 27, 2005. (Doc. 2, p. 7). After being advised of his rights, and indicating that he understood them, Butcher made the following statement:

I never grabbed her hand. I was at the microwave while she was searching my cell. When she was finished, she came over to where I was and asked if I liked tattoos. 1 thought that maybe she found something to do tattoos with or something like that. I told her 1 don't do tattoos and asked her if she found something in my room. She said she took some headphones that were altered. I told her that my headphones were not altered, at this point she opened the bag to show me the headphones. I reached into the bag to show her the headphones were not altered and then 1 put them back in the bag and told her I wanted a confiscation form. I later asked her again for a confiscation form, as I have lost a lot of property in the past this same way. I think that she just did this because she was mad because I asked her for a confiscation form. At no time did I touch her.

( Id. ) Butcher's staff representative noted no discrepancies in the disciplinary process, and reported that he met with Butcher in advance of the hearing to discuss the case and, as requested by Butcher, viewed the surveillance video tape of the incident. ( Id. ) When questioned about the content of the video tape, the staff representative indicated that "he could not tell if Butcher had actually grabbed the officer's hand, as the angle of the camera only showed the officer's back and blocked the view of the actual incident as written." (Doc. 2, p. 8). Two inmate witnesses testified that they witnessed the disagreement over the headphones and one of the witnesses described Butcher's temperament as "heated." ( Id. ) However, both inmates testified that they did not see him take headphones from the officer or grab the officer's hand. ( Id. ) Butcher requested that the reporting officer be present. The DHO believed that she was an adverse witness, and felt that her account of the incident was adequately summarized in the incident report. Hence, he did not call her to testify. ( Id. )

*2 The DHO, in weighing the above evidence, concluded as follows:

After the consideration of all evidence, the DHO has drawn the conclusion [from the] greater weight of the evidence; specifically, the eyewitness account of the reporting staff member, that Butcher grabbed her hand, Aponte's [inmate witness] statement that Butcher was heated during the incident, coupled with the inmate's statement that he did take the headphones without the officer's consent, [that] the prohibited act of Interfering with staff in the performance of their duties (most like assaulting any person), Code 298, was committed.

( Id. ) Butcher was sanctioned with thirty days of disciplinary segregation, twenty-seven days disallowance of good conduct time, and ninety days loss of telephone privileges based on the following:

Interfering with staff in the performance of their duties (most like assault), hinders staffs ability to effectively and efficiently perform duties commensurate with their assigned duties. This type of behavior is considered disruptive to the security and orderly running of the institution which requires punishment. The sanctions imposed by the DHO were taken to let the inmate know that he, and he alone, will be held responsible for his behavior.
It was noted that Butcher has a past disciplinary record of assaulting staff and fighting with other inmates. The sanctions of disciplinary segregation and loss of good conduct time were imposed to demonstrate the seriousness of the prohibited act and as punishment for his conduct. The loss of telephone privileges was imposed to deter further behavior. It is hoped that these sanctions prompt Butcher to modify his interactions with staff in the future.

( Id. )

On appeal, it was concluded that Butcher's due process rights were upheld during the disciplinary process, that the greater weight of the evidence supported the DHO's decision, and that the sanctions were commensurate to the severity level of the offense and in compliance with policy. (Doc. 2, p. 12).

Some time after the filing of the instant FTCA complaint, Butcher filed a petition for writ of habeas corpus pursuant to § 2241 with this court, challenging the above disciplinary proceeding and seeking restoration of his good conduct time. Butcher v. United States, No. 1:07-CV-0546. On July 23, 2007, the petition was denied. Butcher v. United States, No. 1:07-CV-0546, slip op. at 9 (M.D.Pa. July 23, 2007).

II. Standard of Review

Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a claim that fails to assert a basis upon which relief can be granted. FED. R. CIV. P. 12(b)(6). In the context of a motion to dismiss under Rule 12(b)(6), the court must accept as true all of the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom. Langford v. City of Atlantic City, 235 F.3d 845, 847 (3d Cir.2000) (citing Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.1996)). Although the court is generally limited in its review to the facts alleged 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) (stating that, although "a district court ruling on a motion to dismiss may not [generally] consider matters extraneous to the pleadings[, ]... a document integral to or explicitly relied upon in the complaint" may be considered "without converting the motion [to dismiss] into one for summary judgment") (quoting Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1224 (1st Cir.1996)).

III. Discussion

*3 Defendant first argues that plaintiffs complaint is subject to dismissal because "Butcher failed to first successfully challenge the procedures employed and the ultimate decisions by way of habeas corpus petitions." (Doc. 16, p. 8). The Court agrees.

In Heck v. Humphrey 512 U.S. 477 114 S.Ct. 2364 129 L.Ed.2d 383 (1994), the Supreme Court ruled that a constitutional cause of action for damages does not accrue "for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, " until the plaintiff proves that the "conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Id. at 486-87. Thereafter, the Supreme Court applied the lessons of Heck to an action challenging the constitutionality ofprison disciplinary procedures wherein the plaintiff was seeking compensatory and punitive damages, not the restoration of the loss of good conduct time. Edwards v. Balisok, 520 U.S. 641, 646, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). The Edwards Court concluded that such a claim is not cognizable if a favorable outcome would necessarily imply the invalidity of the challenged judgment, which in that case was a disciplinary conviction and punishment. Edwards, 520 U.S. at 646-48.

Similarly, it has been found that claims are not cognizable under the FTCA insofar as a ruling in plaintiffs favor would imply the invalidity of a conviction. See Parris v. United States, 45 F.3d 383, 385 (10th Cir.1995); Erlin United States, 364 F.3d 1127, 1133 (9th Cir.1994) (finding that an FTCA claim "for negligently calculating a prisoner's release date, or otherwise wrongfully imprisoning the prisoner, does not accrue until the prisoner has established, in a direct or collateral attack on his imprisonment, that he is entitled to release from custody."); Watkins v. Holt, 2006 WL 2331090, at *2 (D.D.C.2006) (applying Heck in an FTCA action alleging negligence by Bureau of Prisons employees in miscalculating a prison sentence and holding that "absent a showing that plaintiffs conviction or sentence is invalid, he cannot recover damages under the FTCA."); Rashid v. Monteverde & Hemphill, 1997 WL 360922, at * 7 n. 15 (E.D.Pa.1997) (applying Heck to FTCA claims involving false arrest, false imprisonment and malicious prosecution). This rule has also been applied to a conviction obtained via a disciplinary hearing proceeding. See Hinton v. United States, 91 Fed.Appx. 491, 2004 WL 540473 (6th Cir.2003) (not recommended for full text publication) (in applying Heck, the appellate court held "here, plaintiff seeks return of the documents for which he stands convicted of forging or counterfeiting, and money damages for the allegedly tortious confiscation of the documents... plaintiffs claims are not cognizable under the FTCA insofar as a ruling in plaintiffs favor would imply the invalidity of plaintiffs disciplinary conviction."). Although the United States Court of Appeals for the Third Circuit has not specifically applied the Heck rule in the FTCA context, the Court is persuaded by the reasoning of the other courts that have applied the rule.

*4 In the matter sub judice, plaintiff seeks monetary damages due to the negligent procedure employed in conducting his disciplinary proceeding. This court has considered, and rejected, Butcher's § 2241 petition that raised the identical issues raised here. Clearly, an adjudication in his favor on the FTCA would implicate the continued validity of his prison disciplinary conviction and sanctions and would fly in the face of this Court's prior determination regarding the validity of that conviction. Consequently, his claim is not cognizable and defendant's motion to dismiss will be granted.

Finally, the FTCA provides absolute immunity to federal agencies and federal employees for liability on tort claims. 28 U.S.C. § 2679(a), (b)(1); see U.S. v. Smith, 499 U.S. 160, 161-65, 111 S.Ct. 1180, 113 L.Ed.2d 134 (1991). It is well-established that a complaint filed pursuant to the FTCA must be brought against the United States. 28 U.S.C. 2679(b)(1). An agency or employee of the United States is not a proper defendant in such an action. 28 U.S.C. § 2679(b); Sprecher v. Graher, 716 F.2d 968, 973 (2d Cir.1983). Because the FTCA authorizes suits only against the United States, see 28 U.S.C. § 2679, Butcher's claims against the United States Department of Justice and the Federal Bureau of Prisons will be dismissed for lack of jurisdiction.

An appropriate order will issue.

ORDER

AND NOW, this 30th day of July, 2007, upon consideration of defendant's motion to dismiss (Doc. 15) plaintiffs complaint, it is hereby ORDERED that:

1. The claims against the United States Department of Justice and the Federal Bureau of Prisons are DISMISSED for lack of jurisdiction. See 28 U.S.C. § 2679.

2. Defendant's motion to dismiss (Doc. 15) is GRANTED. The complaint against the United States is hereby DISMISSED.

3. The Clerk of Court is directed to CLOSE this case.

4. Any appeal from this order is DEEMED frivolous and not in good faith. See 28 U.S.C. § 1915(a)(3).


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