United States District Court, M.D. Pennsylvania
REPORT AND RECOMMENDATION
F. SAPORITO, JR. United States Magistrate Judge
a federal civil rights action, brought by pro se
plaintiff Anthony Moneyham, a former federal inmate who was
incarcerated at USP Lewisburg, located in Union County,
Pennsylvania, at the time of filing. The plaintiff's
complaint was constructively filed on September 28, 2017, the
date when he delivered it to prison officials for
mailing. (Doc. 1). See generally Houston v.
Lack, 487 U.S. 266, 270-71 (1988) (articulating the
“prison mailbox rule”). The plaintiff has been
granted leave to proceed in forma pauperis in this
action. (Doc. 11).
complaint names eight individual prison officials and the
United States as defendants. It alleges the violation of
Moneyham's federal constitutional rights, seeking an
award of damages pursuant to Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971). In particular, Moneyham alleges that on February 21,
2015, six of the individual defendants-Lt. Seeba, Officer
Manning, Officer Missigman, Paramedic Barth, and Paramedic
Potter-beat him while he was in hand restraints. He seeks to
hold the other two individual defendants-Lt. Bidelspach and
Officer Beaver-liable for failure to protect him from this
attack. In addition, Moneyham alleges that Potter violated
his First Amendment rights by interfering with his hunger
strike. Moneyham also appears to seek to hold the
United States liable for the state law torts of assault and
battery under the Federal Tort Claims Act
United States and all of the individual defendants except for
Lt. Seeba (collectively, the “Federal
Defendants”) are jointly represented by the United
States Attorney. The Federal Defendants have filed a Rule 56
motion for summary judgment, together with a statement of
material facts with supporting exhibits and a brief in
support. (Doc. 20; Doc. 29 & attachs.; Doc. 30).
Appearing separately and represented by private counsel, Lt.
Seeba has filed a Rule 12(b)(6) motion to dismiss, together
with a brief in support. (Doc. 33; Doc. 38). Although
Moneyham has requested and has been granted several
extensions of time,  he has failed to file any response
whatsoever to either motion. (See Doc. 34; Doc. 35;
Doc. 42; Doc. 43; Doc. 45; Doc. 47; Doc. 49; Doc. 51; Doc.
58; Doc. 59; Doc. 61; Doc. 64). Both motions are ripe for
reasons that follow, we recommend that the action be
dismissed for lack of subject matter jurisdiction, pursuant
to Rule 12(b)(1) of the Federal Rules of Civil Procedure, and
for failure to state a claim upon which relief can be
granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), 28
U.S.C. § 1915A(b)(1), 42 U.S.C. § 1997e(c)(1), and
Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Moneyham's second lawsuit regarding the same incident
that occurred on February 21, 2015. His first lawsuit,
asserting Bivens claims against various individual
defendants only,  was filed mere days after the February 21,
2015, incident, and it ended on September 14, 2017, when the
action was dismissed without prejudice on summary judgment
for failure to exhaust available administrative remedies
prior to bringing suit. See Moneyham v. Potter, No.
3:15cv436, 2017 WL 4073794 (M.D. Pa. Sept. 14, 2017)
(granting summary judgment); see also Moneyham v.
Potter, Civil Action No. 3:15-cv-00436, 2017 WL 4079543
(M.D. Pa. Aug. 3, 2017) (report and recommendation).
second lawsuit was filed two weeks later. In his pro
se complaint, Moneyham alleges that, on February 21,
2015, he was beaten while handcuffed by defendants Seeba,
Manning, Missigman, Barth, and Potter. He alleges that
defendants Bidelspach and Beaver were present but failed to
intervene to protect him. Moneyham claims that this conduct
by the eight individual defendants violated his Eighth
Amendment right to be free from cruel and unusual punishment,
and that it constituted the state law torts of assault and
battery as well. He further alleges, in cursory fashion,
that Potter violated his First Amendment rights by
interfering with his hunger strike in some unspecified
relief, Moneyham seeks declaratory judgment and monetary
damages. He requests a declaration that the defendants'
conduct violated his Eighth Amendment rights and constituted
the torts of assault and battery, and that Potter's
interference with his hunger strike violated his First
Amendment rights. He requests an award of compensatory and
punitive damages with respect to each of the individual
Rule 12(b)(1) Dismissal Standard
the United States has not filed a Rule 12(b)(1) motion in
this action, the Court is permitted to raise the issue of
subject matter jurisdiction sua sponte. See
Liberty Mut. Ins. Co. v. Ward Trucking Corp., 48 F.3d
742, 750 (3d Cir. 1995) (“Federal courts have an
ever-present obligation to satisfy themselves of their
subject matter jurisdiction and to decide the issue sua
sponte . . . .”); Johnson v. United
States, Civil No. 1:CV-08-0816, 2009 WL 2762729, at *2
(M.D. Pa. Aug. 27, 2009). Based on the pleadings and the
materials submitted in connection with the pending summary
judgment motion, we find it appropriate to recommend sua
sponte dismissal of the plaintiff's FTCA claim for
declaratory relief for lack of jurisdiction pursuant to Rule
plaintiff bears the burden of establishing the existence of
subject matter jurisdiction under Rule 12(b)(1). See Kehr
Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409
(3d Cir. 1991). A defendant may challenge the existence of
subject matter jurisdiction in one of two fashions: it may
attack the complaint on its face or it may attack the
existence of subject matter jurisdiction in fact, relying on
evidence beyond the pleadings. See Gould Elecs. Inc. v.
United States, 220 F.3d 169, 176 (3d Cir. 2000);
Mortensen v. First Fed. Sav. & Loan Ass'n,
549 F.2d 884, 891 (3d Cir. 1977). Where a defendant attacks a
complaint as deficient on its face, “the court must
consider the allegations of the complaint as true.”
Mortensen, 549 F.2d at 891. “In deciding a
Rule 12(b)(1) facial attack, the court may only consider the
allegations contained in the complaint and the exhibits
attached to the complaint; matters of public record such as
court records, letter decisions of government agencies and
published reports of administrative bodies; and
‘undisputably authentic' documents which the
plaintiff has identified as a basis of his claims and which
the defendant has attached as exhibits to his motion to
dismiss.” Medici v. Pocono Mountain Sch.
Dist., No. 09-CV-2344, 2010 WL 1006917, at *2 (M.D. Pa.
Mar. 16, 2010). However, when a motion to dismiss attacks the
existence of subject matter jurisdiction in fact, “no
presumptive truthfulness attaches to plaintiff's
allegations, ” and “the trial court is free to
weigh the evidence and satisfy itself as to the existence of
its power to hear the case.” Mortensen, 549
F.2d at 891. This case falls into the former category.
Rule 12(b)(6) Dismissal Standard
12(b)(6) of the Federal Rules of Civil Procedure authorizes a
defendant to move to dismiss for “failure to state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). “Under Rule 12(b)(6), a motion to dismiss may
be granted only if, accepting all well-pleaded allegations in
the complaint as true and viewing them in the light most
favorable to the plaintiff, a court finds the plaintiff's
claims lack facial plausibility.” Warren Gen. Hosp.
v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56
(2007)). In deciding the motion, the Court 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). Although the
Court must accept the fact allegations in the complaint as
true, it is not compelled to accept “unsupported
conclusions and unwarranted inferences, or a legal conclusion
couched as a factual allegation.” Morrow v.
Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting
Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir.
2007)). Nor is it required to credit factual allegations
contradicted by indisputably authentic documents on which the
complaint relies or matters of public record of which we may
take judicial notice. In re Washington Mut. Inc.,
741 Fed. App'x 88, 91 n.3 (3d Cir. Sept. 25, 2018);
Sourovelis v. City of Philadelphia, 246 F.Supp.3d
1058, 1075 (E.D. Pa. 2017); Banks v. Cty. of
Allegheny, 568 F.Supp.2d 579, 588-89 (W.D. Pa. 2008).
Rule 12(b)(6), the defendant has the burden of showing that
no claim has been stated. Kehr Packages, Inc. v.
Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991);
Johnsrud v. Carter, 620 F.2d 29, 32-33 (3d Cir.
1980); Holocheck v. Luzerne County Head Start, Inc.,
385 F.Supp.2d 491, 495 (M.D. Pa. 2005). Although a plaintiff
is entitled to notice and an opportunity to respond to a
motion to dismiss, he has no obligation to do so-he may opt
to stand on the pleadings rather than file an opposition. The
Court must nevertheless examine the complaint and determine
whether it states a claim as a matter of law. Stackhouse
v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991);
Anchorage Assocs. v. Virgin Islands Bd. of Tax
Review, 922 F.2d 168, 174 (3d Cir. 1990).
Sua Sponte Dismissal Standard
28 U.S.C. § 1915A, the Court is obligated to screen a
civil complaint in which a prisoner is seeking redress from a
governmental entity or an officer or employee of a
governmental entity. 28 U.S.C. § 1915A(a); James v.
Pa. Dep't of Corr., 230 Fed. App'x 195, 197 (3d
Cir. 2007). The Court must dismiss the complaint if it
“fails to state a claim upon which relief may be
granted.” 28 U.S.C. § 1915A(b)(1). The Court has a
similar obligation with respect to actions brought in
forma pauperis and actions concerning prison conditions.
See 28 U.S.C. § 1915(e)(2)(B)(i); id.
§ 1915(e)(2)(B)(ii); 42 U.S.C. § 1997e(c)(1).
See generally Banks v. Cty. of Allegheny, 568
F.Supp.2d 579, 587-89 (W.D. Pa. 2008) (summarizing prisoner
litigation screening procedures and standards). The legal
standard for dismissing a complaint for failure to state a
claim under § 1915(e)(2)(B)(ii), § 1915A(b)(1), or
§ 1997e(c) is the same as that for ...