United States District Court, M.D. Pennsylvania
REPORT AND RECOMMENDATION
MARTIN C. CARLSON, Magistrate Judge.
I. Statement of Facts and of the Case
For the pro se plaintiff, Dumont Bush, this litigation has been a long, and often confusing, journey.
Bush's litigative foray began in April 2013 when Bush, a federal prisoner who was formerly housed at the United States Penitentiary-Canaan in the summer of 2011 filed a complaint alleging that in June of 2011 the prison served inmates chicken fajitas. Bush v. United States, 1:13-CV-965 (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.
Bush's complaint clearly stated a claim under the FTCA, but was flawed in one procedural respect. It was filed prematurely, prior to Bush's exhaustion of his administrative remedies. Accordingly, on March 6, 2014, the defendant filed a motion to dismiss this complaint, which 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. With respect to this administrative exhaustion requirement, the undisputed evidence reveals the following chronology of events: On April 14, 2013, Bush submitted an administrative tort claim to the Bureau of Prisons. Two days later, on April 16, 2013, Bush filed this complaint in federal court. At the time that he filed this complaint, Bush had not exhausted his administrative tort claim. The Bureau of Prisons acknowledged receipt of this claim from the plaintiff on May 30, 2013, and denied the administrative tort claim on October 29, 2013, several months after Bush filed this lawsuit.
On these facts, where Bush failed to exhaust administrative remedies within the prison system prior to filing this complaint we recommended that the motion to dismiss be granted, but without prejudice to the re-filing of this FTCA claim now that Bush had completed the process of exhausting his administrative tort claims. (Doc. 33.) The district court adopted this recommendation, in part, and dismissed Bush's FTCA complaint without prejudice. The district court, however, also tolled the statute of limitations under the FTCA, and directed Bush to file a new complaint on or before June 3, 2014. (Doc. 42.)
It seems clear that the district court contemplated the re-filing of the now fully exhausted FTCA claim in this new complaint. However, when Bush timely filed a new complaint, he sued the United States but only brought a constitutional tort claim, alleging that the defendant violated Bush's rights under the Eighth Amendment. (Doc. 1.) The United States has moved to dismiss this complaint, noting that a constitutional tort claim may not be brought against the United States. (Doc. 14.) While the defendant is correct, and this complaint must be dismissed, it is recommended that the complaint be dismissed without prejudice to Bush re-filing his FTCA claim now that he has exhausted his administrative remedies, and that the district court reinstate its prior order tolling the FTCA's statute of limitations while Bush re-files this FTCA complaint, provided that Bush acts promptly.
The defendant has moved to dismiss this complaint pursuant to 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 pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008)] and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal ___ U.S. ___, 129 S.Ct. 1937 (2009) pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.
Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn from the complaint are to be construed in the light most favorable to the plaintiff. Jordan v. Fox Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court "need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally a court need not "assume that a... plaintiff can prove facts that the... plaintiff has not alleged." Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action a plaintiff must provide some factual grounds for relief which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do." Id. at 555. "Factual allegations must be enough to raise a right to relief above the speculative level." Id . In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to dismiss, a court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679. According to the Supreme Court, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678. Rather, in conducting a review of the adequacy of complaint, the Supreme Court has advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their ...