United States District Court, Middle District of Pennsylvania
Carlson, Chief Magistrate Judge.
JAMES M. MUNLEY, JUDGE UNITED STATES DISTRICT COURT.
Plaintiff Christopher Wills brings a claim under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80 (hereinafter “FTCA”) against the United States of American and the United States Penitentiary in Canaan, Pennsylvania (hereinafter “USP-Canaan”), alleging that defendants served him chicken fajitas contaminated with salmonella. Before the court for disposition is Chief Magistrate Judge Martin C. Carlson’s report and recommendation (hereinafter “R&R”). (Doc. 76). The R&R proposes granting defendants’ motion to dismiss plaintiff’s complaint. (Doc. 52). Plaintiff filed objections to the R&R (Doc. 79), and they are ripe for disposition.
In 2011, Plaintiff Christopher Wills (hereinafter “plaintiff”) was incarcerated at USP-Canaan. (Doc. 1, Compl. (hereinafter “Compl.”) at 3). On June 25, 2011, USP-Canaan served plaintiff chicken fajitas contaminated with salmonella. (Id. at 4). The contaminated chicken caused plaintiff to suffer from diarrhea, nausea, abdominal pain and vomiting. (Id. at 3).
Based upon these facts, plaintiff filed a pro se complaint on June 28, 2013 pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) (hereinafter “Bivens”), and the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80 (hereinafter “FTCA”). (Compl.) Plaintiff’s complaint named the United States and USP-Canaan as defendants. (Id.)
Plaintiff filed an amended complaint on December 13, 2013. (Doc. 22). Plaintiff’s amended complaint expanded his factual allegations pertaining to his salmonella food poisoning claims and added “other unknown” individual defendants. (Id.) On December 18, 2013, defendants filed a motion to dismiss all claims within plaintiff’s amended complaint, except plaintiff’s FTCA food poisoning claim (Docs. 23). The court granted the motion to dismiss on May 7, 2014. (Doc. 42). Accordingly, the court remanded the case to Chief Magistrate Judge Carlson for further proceedings regarding the only remaining claim–plaintiff’s FTCA food poisoning claim. (Id.)
On August 28, 2014, defendants filed a motion to dismiss plaintiff’s FTCA food poisoning claim. (Doc. 52). Magistrate Judge Carlson issued an R&R on February 5, 2015, recommending the court grant defendants’ motion to dismiss. Plaintiff filed objections to the R&R on March 6, 2015, (Doc. 79), bringing this case to its present posture.
Standard of Review
In disposing of objections to a magistrate judge’s R&R, the district court must make a de novo determination of those portions of the report against which objections are made. 28 U.S.C. § 636(b)(1)(c); see also Sullivan v. Cuyler, 723 F.2d 1077, 1085 (3d Cir. 1983). The court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir. 1987). The district court judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. Id.
Furthermore, the defendants move to dismiss plaintiff’s amended complaint under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Rule 12(b)(1) provides that a court may dismiss a complaint for “lack of subject-matter jurisdiction.” The FTCA confers jurisdiction on District Courts through 28 U.S.C. § 1346(b)(1), which waives sovereign immunity only “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” CNA v. United States, 535 F.3d 132, 145 (3d Cir. 2008).
In the instant matter, the defendants’ Rule 12(b)(1) motion amounts to a factual attack on the court’s jurisdiction, because it challenges not merely “an alleged pleading deficiency, but rather the actual failure of [plaintiff’s] claims to comport with the jurisdictional prerequisites” of the FTCA. United States ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007). As such, “the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977).
The plaintiff bears the burden of establishing jurisdiction, and unlike other familiar motions, “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.” Id. Stated differently, if the defendant presents evidence contesting any allegations in the pleadings, the presumption of truthfulness does not attach to the plaintiff’s allegations and the plaintiff must present facts by affidavit or deposition or in an evidentiary hearing. Gould Elec. Inc. v. United States, 220 F.3d 169, 177 (3d Cir. 2000); Mortensen, 549 F.2d at 891, 893 n.18. The court, therefore, may consider evidence outside the pleadings because the court is the “ultimate finder of fact” on jurisdictional questions. S.R.P. ex rel. Abunabba v. United States, 676 F.3d 329, 343 (3d Cir. 2012). To this end, “the court must weigh the evidence relating to jurisdiction, with discretion to allow affidavits, documents ...