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Davenport v. United States

United States District Court, M.D. Pennsylvania

July 8, 2015



JAMES M. MUNLEY, District Judge.

Before the court is Chief Magistrate Judge Martin C. Carlson's Report and Recommendation (hereinafter "R&R"). (Doc. 14). The R&R proposes denying Defendant United States of America's (hereinafter "government" or "defendant") motion to dismiss plaintiff's negligence claim filed under the Federal Tort Claims Act (hereinafter "FTCA"). (Doc. 10). The government objects to the R&R, asserting plaintiff filed his complaint beyond the FTCA's statute of limitations. (Doc. 15). The parties have briefed the issue, bringing the case to its present posture.


Plaintiff James Davenport (hereinafter "plaintiff") is a pro se federal prisoner residing at the United States Penitentiary-Canaan, Waymart, Pennsylvania (hereinafter "USP-Canaan"). (Doc. 1, Compl. at 2). On June 25, 2011, USP-Canaan staff served chicken fajitas to the inmate population, including plaintiff. (Id. at 3). Plaintiff asserts the chicken fajitas were tainted with salmonella. (Id.)

On June 26, 2011, USP-Canaan, in response to the potential salmonella outbreak, implemented a lockdown, requiring all inmates, including plaintiff, to remain in their cells. (Id.) While in his cell, plaintiff informed an officer that he felt ill and exhibited symptoms of vomiting, diarrhea, and fever. (Id.) Additionally, USP-Canaan staff refused plaintiff's offers to provide a stool sample to confirm plaintiff's food poisoning diagnosis. (Id.)

On December 6, 2012, plaintiff filed an administrative grievance with the Federal Bureau of Prisons, alleging negligent preparation of the chicken fajitas. (M.D. Pa. Docket No. 1:13-cv-1334, Doc. 28-1). On June 5, 2013, the Bureau of Prisons denied plaintiff's administrative claim. (Id.) Prior to receiving a determination from the Bureau of Prisons regarding his administrative claim, plaintiff filed an FTCA negligence complaint on May 15, 2013. ( Id., Doc. 1). The court stayed plaintiff's case from May 29, 2013 until January 16, 2014, allowing the parties to participate in mandatory mediation. ( Id., Doc. 10). After the mediator notified the court that a settlement had not been reached ( Id., Doc. 17), the court lifted the stay and required the government to respond to plaintiff's complaint by February 14, 2014 ( Id., Doc. 18).

On March 6, 2014, defendant moved to dismiss plaintiff's complaint, alleging plaintiff filed his lawsuit before exhausting his administrative remedies. ( Id., Doc. 27). On April 8, 2014, Chief Magistrate Judge Carlson issued an R&R proposing the court grant defendant's motion to dismiss without prejudice to plaintiff filing a new complaint.[2] Judge Sylvia H. Rambo adopted the R&R on May 21, 2014 and dismissed plaintiff's complaint. ( Id., Doc. 38).

On April 17, 2014, nine (9) days after Magistrate Judge Carlson recommended dismissing his first complaint, and thirty-four (34) days before Judge Rambo dismissed the same complaint, plaintiff filed the instant complaint, reasserting his FTCA negligence claim. (Doc. 1, Compl.). Defendant filed a motion to dismiss on August 5, 2014, arguing plaintiff filed his FTCA complaint beyond the FTCA's six-month statute of limitations. (Doc. 10). On October 2, 2014, Chief Magistrate Judge Carlson recommended that the motion to dismiss be denied, finding that equitable tolling should be applied to the FTCA's statute of limitations. (Doc. 14). On October 16, 2014, the defendant filed an objection, bringing the case to its present posture. (Doc. 15).


As this negligence case is brought pursuant to the FTCA, 28 U.S.C. § 2675 et seq., we have jurisdiction under 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.").

Legal Standard

In the instant matter, defendant moves 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." "Challenges to subject matter jurisdiction under Rule 12(b)(1) may be facial' or factual.'" Turicentro v. Am. Airlines Inc., 303 F.3d 293, 300 n.4 (3d Cir. 2002). A facial attack serves to "contest the sufficiency of the pleadings, and the trial court must accept the complaint's allegations as true." Id . On the other hand, if the attack is factual, the court "accords plaintiff's allegations no presumption of truth. In a factual attack, the court must weigh the evidence relating to jurisdiction, with discretion to allow affidavits, documents, and even limited evidentiary hearings." Id.

The defendant's Rule 12(b)(1) motion is 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 federal law. United States ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007). As such, plaintiff bears the burden of establishing jurisdiction, and unlike other familiar motions, no presumptive truthfulness attaches to the allegations in the complaint. Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Moreover, the court may consider evidence outside ...

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