United States District Court, E.D. Pennsylvania
TIMOTHY J. SAVAGE J.
Adam Scott, a prisoner incarcerated at the Federal Detention
Center (“FDC”) in Philadelphia, brings this
pro se civil action against the United States of
America pursuant to Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971) and the
Federal Tort Claims Act (“FTCA”) based on the
adequacy of medical treatment at the FDC. Scott seeks to
proceed in forma pauperis. For the following
reasons, we shall grant Scott leave to proceed in forma
pauperis, dismiss his Bivens claims and permit
him to proceed on his FTCA claims.
incarcerated at the FDC in September of 2011, Scott fell out
of a top bunk bed that did not have a guardrail and hit his
head on a metal table. Scott alleges that since then he has
consistently suffered from and complained about the following
injuries: (1) Tightness in the left side of the skull; (2)
random severe headaches on the left side; (3) constipation on
the left side of pelvis; (4) not being able to breathe out of
left nostril; (5) shortness of breath; and (6) heart problems
and upper left chest pains.
contends that although most of the claimed medical problems
were “diagnosed and clearly identified”, he has
not received any medication, treatment, or medical advice
despite having submitted numerous sick call slips and other
requests. According to Scott, the Bureau of Prisons
is not using its software program to track prisoners'
medical problems to ensure they receive treatment for those
alleges that he exhausted his administrative remedies as
required by the FTCA. He attached some of the records from
the administrative process to his complaint as exhibits along
with some of his medical records. Scott seeks damages in
excess of $250, 000.
it appears that he is not capable of paying the fees to
commence this civil action, Scott will be granted leave to
proceed in forma pauperis. Accordingly, 28 U.S.C.
§ 1915(e)(2)(B)(i) and (ii) apply, which requires the
Court to dismiss the Complaint if, among other things, it is
frivolous or fails to state a claim. A complaint is frivolous
if it “lacks an arguable basis either in law or in
fact, ” Neitzke v. Williams, 490 U.S. 319, 325
(1989), and is legally baseless if it is “based on an
indisputably meritless legal theory.” Deutsch v.
United States, 67 F.3d 1080, 1085 (3d Cir. 1995).
to 28 U.S.C. § 1915(e)(2)(B)(ii), we must dismiss the
Complaint if it fails to state a claim. Whether a complaint
fails to state a claim under § 1915(e)(2)(B)(ii) is
governed by the same standard applicable to motions to
dismiss under Federal Rule of Civil Procedure 12(b)(6),
see Tourscher v. McCullough, 184 F.3d 236, 240 (3d
Cir. 1999). A court may dismiss all or part of an action for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). The complaint must
plead “factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007)). The plaintiff must
allege facts that indicate “more than a sheer
possibility that a defendant has acted unlawfully.”
Id. Pleading only “facts that are
‘merely consistent with' a defendant's
liability” is insufficient and cannot survive a motion
to dismiss. Id. (quoting Twombly, 550 U.S.
a waiver, sovereign immunity shields the Federal Government
and its agencies from suit.” F.D.I.C. v.
Meyer, 510 U.S. 471, 475 (1994). For that reason,
“[a] Bivens action is not available against the United
States or one of its agencies.” Dambach v. United
States, 211 Fed.Appx. 105, 107 (3d Cir. 2006) (per
curiam). Notably, Scott did not name any individual federal
officers as Defendants. See Corr. Servs. Corp. v.
Malesko, 534 U.S. 61, 71 (2001) (explaining that
Bivens “is concerned solely with deterring the
unconstitutional acts of individual officers”).
Therefore, we shall dismiss the Bivens claims
against the United States with prejudice as legally baseless.
FTCA partially waives the government's sovereign immunity
to allow liability for the torts of federal employees acting
within the scope of their employment “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)(1). However, a claim “against the
United States for money damages [cannot be brought in federal
district court] . . . unless the claimant shall have ...