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Labarge v. Maiorana

United States District Court, M.D. Pennsylvania

September 18, 2017

BRANDEN M. LABARGE, Plaintiff,
v.
WARDEN C. MAIORANA, et al., Defendants

          MEMORANDUM

          HON. JOHN E. JONES III, JUDGE

         Plaintiff 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[1] and Federal Tort Claims Act (“FTCA”)[2] 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)

         Pending 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.

         I. FTCA Claims

         A. Rule 12(b)(1) Motion to Dismiss

         Federal 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 persuasion.”).

         Through 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).

         According 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).

         It is 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.

         B. Rule 12(b)(6) Motion to Dismiss

         In 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).

         However, “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).

         The 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 injury.

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).

         Labarge 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. ...


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