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Moore v. Ebbert

United States District Court, M.D. Pennsylvania

July 18, 2018

RONNIE MOORE, Plaintiff
v.
DAVID J. EBBERT, et al., Defendants

          MEMORANDUM

          JAMES M. MUNLEY, UNITED STATES DISTRICT COURT JUDGE

         Plaintiff Ronnie Moore (“Moore” or “Plaintiff”), at all times relevant a federal inmate incarcerated at the United States Penitentiary at Lewisburg (“USP-Lewisburg”), Pennsylvania, commenced this Bivens[1] and Federal Tort Claims Act (FTCA)[2] action on August 29, 2017.[3] (Doc. 1). Moore names Warden David J. Ebbert (“Ebbert”) and Food Service Administrator Ramirez (“Ramirez”) as Defendants.

         Presently pending is Defendants' motion (Doc. 11) to dismiss or, in the alternative, for summary judgment on the Bivens claim. For the reasons set forth below, the Court will grant the motion to dismiss. With regard to the FTCA claim, although Defendants' have not moved to dismiss this claim, it is subject to dismissal pursuant to 28 U.S.C. §1915(e)(2)(B)(ii), for lack of jurisdiction. However, Moore will be afforded the opportunity to amend his complaint to cure the FTCA deficiency.

         I. Moore's Complaint

         Moore alleges that while incarcerated at USP-Lewisburg he was exposed to a Salmonella outbreak and that Defendant Ebbert did nothing to contain the outbreak and Defendant Ramirez failed to check the food supplies for contamination or spoilage. (Doc. 1, pp. 2, 3). He “would like to get a trial hearing on this matter as to the medical neglect or to be compensated for the outbreak of this life threatening disease.” (Id. at 3). He filed “the institution Tort claim from the Administrative Remedy” and “was offered $100 but [he] turned it down because of the severity of the injury of food poisoning.” (Id. at 2).

         II. Bivens Claim

         A. Rule 12(b)(6) Standard of Review

         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 Fed.Appx. 454, 456 (3d Cir. 2009) (citing Phillips v. Cnty of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008)). A district court ruling on a motion to dismiss may consider the facts alleged on the face of the complaint, as well as “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (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.”).

Under the pleading regime established by [Bell Atl. Corp. v.] Twombly, 550 U.S. 544 (2007) and Iqbal, a court reviewing the sufficiency of a complaint must take three steps. First, it must “tak[e] note of the elements [the] plaintiff must plead to state a claim.” Iqbal, 556 U.S. at 675, 129 S.Ct. 1937. Second, it should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679, 129 S.Ct. 1937. See also Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011) (“Mere restatements of the elements of a claim are not entitled to the assumption of truth.” (citation and editorial marks omitted)). Finally, “[w]hen there are well-pleaded factual allegations, [the] court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.

Connelly v. Lane Const. Corp., 809 F.3d 780, 787-88 (3d Cir. 2016) (internal citations, quotations and footnote omitted). Elements are sufficiently alleged when the facts in the complaint “show” that the plaintiff is entitled to relief. Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). At the second step, the Court identities those allegations that, being merely conclusory, are not entitled to the presumption of truth. Twombly and Iqbal distinguish between legal conclusions, which are discounted in the analysis, and allegations of historical fact, which are assumed to be true even if “unrealistic or nonsensical, ” “chimerical, ” or “extravagantly fanciful.” Iqbal, 556 U.S. at 681. Deciding whether a claim is plausible is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.

         B. Discussion

         Defendants seek to dismiss the Bivens claim on the grounds that Moore failed to exhaust his administrative remedies, as required by 42 U.S.C. § 1997e(a). The Prison Litigation Reform Act of 1996 (the “PLRA”) “mandates that an inmate exhaust ‘such administrative remedies as are available' before bringing suit to challenge prison conditions.” Ross v. Blake, 136 S.Ct. 1850, 1856 (2016); see Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000) (“[I]t is beyond the power of this court-or any other-to excuse compliance with the exhaustion requirement, whether on the ground of futility, inadequacy or any other basis.”). The text “suggests no limits on an inmate's obligation to exhaust- irrespective of ‘special circumstances.'” Id. “And that mandatory language means a court may not excuse a failure to exhaust, even to take such circumstances into account. See Miller v. French, 530 U.S. 327, 337, 120 S.Ct. 2246, 147 L.Ed.2d 326 (2000) (explaining that “[t]he mandatory ‘shall' ... normally creates an obligation impervious to judicial discretion”).” Id. at 1856-57.

         Significantly, “the PLRA contains its own, textual exception to mandatory exhaustion, ” i.e. the PLRA requires exhaustion of “available” administrative remedies. Id. at 1858. “Available” is defined as “capable of use for the accomplishment of a purpose” and that which “is accessible or may be obtained.” Id. at 1858-59, (quoting Booth v. Churner, 532 U.S. 731, 737-38 (2001)). There are three instances in which administrative remedies are unavailable. “First, as Booth made clear, an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end-with officers unable or consistently unwilling to provide relief to aggrieved inmates.” Id. at 1859. “Next an administrative scheme might be so opaque that it becomes, practically speaking, ...


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