United States District Court, M.D. Pennsylvania
BRANDEN M. LABARGE, Plaintiff,
WARDEN C. MAIORANA, et al., Defendants
JOHN E. JONES III, JUDGE
Branden M. Labarge (“Labarge”), a federal inmate
who, at all times relevant, was incarcerated at the United
States Penitentiary at Canaan (USP-Canaan) Waymart,
Pennsylvania, filed a Bivens and Federal Tort Claims Act
(“FTCA”) complaint on June 1, 2016. (Doc. 1).
Therein, Labarge sets forth Eighth Amendment claims of
failure to protect, excessive use of force, and denial of
recreation, and First Amendment claims of retaliation for
exercise of free speech and denial of writing utensils for
purposes of accessing family, friends, the media and the
courts. (Id. at pp. 16-20). The FTCA portion of the
complaint includes claims of negligence, assault and battery,
and intentional infliction of emotional distress.
(Id. at 21-24)
before the Court is Defendants' motion (Doc. 22) to
dismiss pursuant to Federal Rule of Civil Procedure 12(b),
and for summary judgment pursuant to Federal Rule of Civil
Procedure 56(a), filed on September 29, 2016. A brief (Doc.
43) in support of the motion and statement of material facts
(Doc. 44) were filed on November 21, 2016. On December 12,
2016, Labarge filed a motion (Doc. 47) for extension of time
to respond to the Defendants' motion. The Court granted
the motion and afforded him until February 17, 2017, to file
an opposition brief and to respond to the statement of
material facts. (Doc. 48). Labarge was cautioned that his
failure to file an opposition brief and statement of material
facts would render the motion unopposed and would result in
an admission to the Defendants' statement of material
facts. (Id.) He has neither opposed the motion nor
sought an enlargement of time in which to do so. The motion
is therefore deemed unopposed. For the reasons set forth
below, the motion to dismiss will be granted with respect to
the FTCA claims and the motion for summary judgment will be
granted as to the Bivens claims.
Rule 12(b)(1) Motion to Dismiss
Rule of Civil Procedure 12(b)(1) provides that a court may
dismiss a complaint for “lack of subject-matter
jurisdiction.” Fed.R.Civ.P. 12(b)(1). A motion to
dismiss under Rule 12(b) (1) therefore challenges the power
of a federal court to hear a claim or case. See Petruska
v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006). In
the face of a 12(b)(1) motion, the plaintiff has the burden
to “convince the court it has jurisdiction.”
Gould Elecs., Inc. v. United States, 220 F.3d 169,
178 (3d Cir. 2000); see also Kehr Packages v. Fidelcor,
Inc., 926 F.2d 1406, 1409 (3d Cir. 1991) (stating that
“[w]hen subject matter jurisdiction is challenged under
Rule 12(b)(1), the plaintiff must bear the burden of
the FTCA, Congress has waived sovereign immunity for actions
sounding in tort against the United States and its agencies,
Pascale v. United States, 998 F.2d 186, 189 (3d Cir.
1993), thereby allowing tort claims against the United States
for the acts of its employees “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.” 28 U.S.C. §
1346(b). The FTCA requires a claimant, in any action against
the United States for money damages due to the negligence or
wrongful act of a government employee, to file a claim with
the agency allegedly responsible for his injuries.
See 28 U.S.C. § 2675(a). The agency may then
pay the claim in full, offer to settle the claim, or deny the
claim within six months. 28 U.S.C. §§ 2672,
2675(a). If the agency denies the claim or does not make a
final disposition within six months, the claimant may then
file suit in federal court. 28 U.S.C. § 2675(a). A tort
claim against the United States, however, “shall be
forever barred unless it is presented in writing to the
appropriate Federal agency within two years after such claim
accrues or unless action is begun within six months after the
date of mailing, by certified or registered mail, of notice
of final denial of the claim by the agency to which it was
presented.” 28 U.S.C. § 2401(b). Compliance with
the statute of limitations is a jurisdictional requirement.
See Roma v. United States, 344 F.3d 352, 362 (3d
Cir.2003); Pascale, 998 F.2d 186 (3d Cir.1993). Additionally,
the statute of limitations is strictly construed. See
Barren v. United States, 839 F.2d 987, 992 (3d Cir.
1988). Thus, a plaintiff's failure to sue within the
period of limitations recognized by § 2401(b) deprives a
court of subject matter jurisdiction. Ahmed v. United
States, 30 F.3d 514 (4th Cir. 1994).
to a search of the BOP database system, Labarge filed only
one administrative tort claim, TRT-NERO-2015-04861, and it
concerns an allegation of insufficient recreation while
housed in the SHU at USP Canaan. (Doc. 44, ¶ 77). The
Northeast Regional Office denied the claim on December 23,
2015. (Id. at 78). The database search indicated
that Labarge failed to administratively exhaust any other
issues referenced in his complaint and filed under the
Federal Tort Claims Act. (Id. at 79).
undisputed that Labarge failed to file an administrative tort
claim with regard to the negligence, assault and battery, and
intentional infliction of emotional distress claims as
required by 28 U.S.C. § 2675(a). We therefore lack
subject matter jurisdiction over these claims.
Rule 12(b)(6) Motion to Dismiss
rendering a decision on a motion to dismiss, a court should
not inquire “whether a plaintiff will ultimately
prevail but whether the claimant is entitled to offer
evidence to support the claims.” Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974); Nami v.
Fauver, 82 F.3d 63, 66 (3d Cir. 1996). The court must
accept as true the factual allegations in the complaint and
draw all reasonable inferences from them in the light most
favorable to the plaintiff. Innis v. Wilson, 334 F.
App'x 454, 456 (3d Cir. 2009) (citing Phillips v.
County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008)).
A district court ruling on a motion to dismiss generally
“relies on the complaint, attached exhibits, and
matters of public record.” Sands v. McCormick,
502 F.3d 263, 268 (3d Cir. 2007).
“the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (“Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.”). “First, the factual and legal
elements of a claim should be separated.” Fowler v.
UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
Second, the court must then determine whether the complaint
states a plausible claim for relief, which is “a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Id. at 211 (citing Iqbal, 556 U.S. at 679);
see also 28 U.S.C. § 1915A(b) (directing the court to
identify cognizable claims and to dismiss any portion of the
complaint that fails to state a claim). “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged
-- but it has not ‘show[n]' -- ‘that the
pleader is entitled to relief.'” Iqbal,
556 U.S. at 679; Fed.R.Civ.P. 8(a)(2).
FTCA waiver of sovereign immunity is subject to several
requirements and limitations. CNA v. United States,
535 F.3d 132, 138 (3d Cir. 2008). One of these limitations is
found in § 1346(b)(2), which provides:
No person convicted of a felony who is incarcerated while
awaiting sentencing or while serving a sentence may bring a
civil action against the United States or an agency, officer,
or employee of the Government, for mental or emotional injury
suffered while in custody without a prior showing of physical
28 U.S.C. §1346(b)(2). This section requires a showing
of less-than significant-but-more-than-de minimis
physical injury as a predicate to allowing the successful
pleading of an emotional injury. Mitchell v. Horn,
318 F.3d 523, 536 (3d Cir. 2003).
alleges that between the dates of March 25, 2015, and April
12, 2015, he was not permitted to go to recreation on at
least six occasions. (Doc. 1, ¶¶ 83, 86-87). He
contends that the denial of recreation “resulted in
pain and suffering for the plaintiff, exacerbating chronic
conditions and becoming a de facto injury.” (Doc. 1,
¶ 131). In its motion to dismiss, the United States
argues that, in seeking compensation for pain and suffering,
Labarge is attempting to advance a claim for mental or
emotional injury without alleging prior physical injury as
required by 28 U.S.C. ...