United States District Court, M.D. Pennsylvania
WILLIAM J. NEALON, District Judge.
Plaintiff, Joel Huffman, an inmate confined in the United States Penitentiary, Lewisburg, Pennsylvania ("USP-Lewisburg"), filed the above captioned pro se complaint asserting a negligence claim under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq., and 18 U.S.C. § 4042. The United States of America is the only named Defendant. (Doc. 1). Plaintiff alleges that Defendant negligently discontinued Plaintiff's mental health medication, which caused him to suffer injuries. (Id. at p. 3). He demands, inter alia, to be placed back on his medication. (Id. at p. 4). Defendant has moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1), (6), or, alternatively, for summary judgment under Rule 56(a). (Doc. 11). Defendant asserts that its motion should be granted because: (1) Plaintiff did not exhaust his administrative remedies prior to commencing his action; and (2) the complaint fails to state a claim for negligence under the FTCA. (Doc. 12 at pp. 6-7, 11, 16). The motion is now ripe for disposition, and for the reasons set forth below, Defendant's motion pursuant to Federal Rule of Civil Procedure 12(b)(1) will be granted.
I. Procedural Background
On March 31, 2014, Plaintiff filed the instant action alleging that he suffered injuries as the result of Defendant's negligent discontinuance of his mental health medication, specifically Divalproex. (Doc. 1, pp. 3-4). Plaintiff advances his negligence claim under the FTCA and 18 U.S.C. § 4042. (Id.). He requests the following in relief: (1) a full investigation of the medical department at USP-Lewisburg; (2) $12, 000.00 in damages; (3) that Plaintiff be placed back on his medication; (4) costs of the litigation; and (5) an injunctive order to ensure there is no retaliation against Plaintiff for filing this action. (Id. at p. 4).
On April 8, 2014, Plaintiff filed a motion to proceed in forma pauperis. (Doc. 4). The motion was granted on April 15, 2014. (Doc. 6). On July 28, 2014, Defendant filed a motion to dismiss, or in the alternative for summary judgment. (Doc. 11). On August 11, 2014, Defendant filed a brief in support and statement of material facts. (Docs. 12, 13). On August 20, 2014, Plaintiff filed notice of his intent to withdraw his claim. (Doc. 14). However, on September 4, 2014, he filed a motion for an extension of time to file his brief in opposition to Defendant's motion. (Doc. 15). On October 20, 2014, Plaintiff's motion was granted, and he was given until November 3, 2014, to file an opposition brief. (Doc. 16). To date, Plaintiff has not filed an opposition to Defendant's motion.
II. Standard of Review
Federal Rule of Civil Procedure 12(b) "enumerates several potential bases for dismissal of an action...." Advanced Fluid Sys., Inc. v. Huber, 2014 U.S. Dist. LEXIS 62799, *13-14 (M.D. Pa. May 7, 2014) (Conner, J.) (citing FED. R. CIV. P. 12(b)). "When a motion to dismiss is based on both lack of jurisdiction and another Rule 12(b) ground, constitutional concerns regarding the scope of judicial power dictate that the court first address the issue of jurisdiction." Id. at *14 (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-95, 101-02, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); Tolan v. United States, 176 F.R.D. 507, 509 (E.D. Pa. 1998)).
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides a party with the ability to challenge a court's subject-matter jurisdiction. "A district court has to first determine...whether a Rule 12(b)(1) motion presents a facial' attack or a factual' attack on the claim at issue, because that distinction determines how the pleading must be reviewed." Constitution Party v. Aichele, 757 F.3d 347, 357-58 (3d Cir. 2014) (citing In re Schering-Plough Corp. Intron, 678 F.3d 235, 243 (3d Cir. 2012)).
A facial attack "is an argument that considers a claim on its face and asserts that it is insufficient to invoke the subject matter jurisdiction of the court...." Id. at 358. A facial attack "contests the sufficiency of the pleadings...." In re Schering-Plough Corp. Intron, 678 F.3d at 243. When a district court reviews a facial attack it "must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff.'" Id. (quoting Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000)). "Thus, a facial attack calls for a district court to apply the same standard of review it would use in considering a motion to dismiss under Rule 12(b)(6), i.e., construing the alleged facts in favor of the nonmoving party." Id. A court's review of a facial attack is "in marked contrast" to the standard applied to a factual attack. Aichele, 757 F.3d at 358 (citing Gould Elecs. Inc., 220 F.3d at 176).
A factual attack under Rule 12(b)(1) asserts "that there is no subject matter jurisdiction because the facts of the case-and here the District Court may look beyond the pleadings to ascertain the facts-do not support the asserted jurisdiction." Id. A factual attack "concerns the actual failure of a [plaintiff's] claims to comport [factually] with the jurisdictional prerequisites." Id. (citing CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008)). A factual challenge contends that "the court in fact lacks subject matter jurisdiction, no matter what the complaint alleges, as factual challenges are subject to different standards." NE Hub Partners, L.P. v. CNG Transmission Corp., 239 F.3d 333, 341 n.7 (3d Cir. 2001) (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). Unlike the standard applied in a facial attack, which limits a district court's considerations to the complaint and its attachments, a district court "may weigh and consider evidence outside the pleadings'" when reviewing a factual attack. Id. (quoting Gould Elecs. Inc., 220 F.3d at 176). "If the defendant submits and the court considers evidence that controverts the plaintiff's allegations, the motion must be treated as a factual challenge under Rule 12(b)(1)." Lancia v. United States, 2007 U.S. Dist. LEXIS 74338, *5-6 (M.D. Pa. 2007) (Caputo, J.) (citing Gould Elecs. Inc., 220 F.3d at 178); see Mortensen, 549 F.2d at 891. Moreover, when a district court considers a factual challenge "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Mortensen, 549 F.2d at 891.
When presented with a Rule 12(b)(1) motion, plaintiff "will have the burden of proof that jurisdiction does in fact exist.'" Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006) (quoting Mortensen, 549 F.2d at 891); see Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991) ("When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff must bear the burden of persuasion.") (citing Mortensen, 549 F.2d at 891). A motion to dismiss pursuant to Rule 12(b)(1) should be granted only if it "appears with certainty that assertion of jurisdiction would be improper." Advanced Fluid Sys., Inc., 2014 U.S. Dist. LEXIS 62799, *15 (citing Gould Elecs. Inc., 220 F.3d at 178; Kehr Packages, Inc., 926 F.2d at 1408-09; Tolan, 176 F.R.D. at 509).
III. Statement of Facts
Defendant filed a twenty-eight (28) page statement of material facts containing one-hundred and fifty-seven (157) individually numbered paragraphs. (Doc. 13). Plaintiff has not filed an opposition to Defendant's statement of material facts. This Court has reviewed the record and found the following:
Plaintiff was first incarcerated at USP-Lewisburg from August 16, 2010, through May 13, 2013. (Doc. 13, Ex. 2 at p. 2, Attch. B at p. 1). He was then released on a federal writ. (Id.). Plaintiff was reassigned to USP-Lewisburg on March 11, 2014, which is where he is currently ...