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Wilson v. Horowitz

United States District Court, M.D. Pennsylvania

January 6, 2020

JULIUS WILSON, Plaintiff
v.
HUGH HOROWITZ, et al., Defendants

          MEMORANDUM

          ROBERT D. MARIANI, UNITED STATES DISTRICT JUDGE

         I. Background

         Plaintiff Julius Wilson ("Wilson"), an inmate who was housed at all relevant times at the United States Penitentiary, Allenwood, in White Deer, Pennsylvania ("USP-Allenwood"), initiated this action pursuant to Bivens[1] 28 U.S.C. § 1331, and the Federal Tort Claims Act ("FTCA"). (Doc. 1). Named as Defendants are the United States of America, Acting Director of the Federal Bureau of Prisons ("BOP") Hugh Hurwitz, former Warden L.J. Oddo, former Registered Nurse ("RN") Andrea Martinez, RN J. Waldman, and two unknown officers. (Docs. 1, 9).

         Presently pending before the Court is Defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b), and for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Doc. 18). Despite being directed to file a brief in opposition to Defendants' motion on four separate occasions, Plaintiff failed to respond to the motion and the time for responding has now passed.[2] (Docs. 25, 27, 29, 31). In the absence of any timely response by Plaintiff, the motion is deemed ripe for resolution. For the reasons set forth below, the Court will grant Defendants' motion to dismiss.[3] The Court will also dismiss the action against the two unknown officers pursuant to Federal Rule of Civil Procedure 4(m).

         II. Allegations of the Complaint

         On June 5, 2017, Wilson was allegedly involved in an altercation which resulted in his transfer to the Special Housing Unit ("SHU"). (Doc. 1, p. 3). Wilson alleges that he was processed into the SHU by two unknown officers. (Id.). The two unknown officers allegedly dislocated Wilson's shoulder while removing his handcuffs and left him in a cell despite his pain. (Id.). After Wilson reported his pain to the unknown officers, they contacted the medical department, and Wilson was transported to medical for treatment. (Id. at pp. 3-4). Once in the medical department, Wilson received two morphine injections in his shoulder, and underwent an x-ray of the shoulder. (Id.). Wilson asserts that the x-ray revealed a dislocated shoulder, and a doctor and nurse moved his shoulder back into place. (Id. at p. 4). Several weeks later, Wilson was again treated in the medical department and was provided range of motion exercises. (Id.).

         III. Legal Standards

         A. Rule 12(b)(1)

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges the power of a federal court to hear a claim or case. Gould Elecs. Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000). When considering a motion to dismiss under Rule 12(b)(1), a court must distinguish between facial and factual challenges to its subject matter jurisdiction. See Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). A facial attack challenges whether the plaintiff has properly pled jurisdiction. Id. "In reviewing a facial attack, the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff." Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (citing Mortensen, 549 F.2d at 891).

         A factual attack, in contrast, is "an argument that there is no jurisdiction because the facts of the case-and [in a factual attack] the [court] may look beyond the pleadings to ascertain the facts-do not support the asserted jurisdiction." Constitution Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014). "So, for example, while diversity of citizenship might have been adequately pleaded by the plaintiff, the defendant can submit proof that, in fact, diversity is lacking." Id. (citing Mortensen, 549 F.2d at 891 ("[T]he trial court is free to weigh the evidence[, ]... and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.")). In a factual attack, the plaintiff bears the burden of proof that jurisdiction in fact exists, and the court need not presume the truth of the plaintiffs allegations. Mortensen, 549 F.2d at 891.

         B. Rule 12(b)(6)

         A complaint must be dismissed under Fed.R.Civ.P. 12(b)(6), if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The plaintiff must aver "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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).

         "Though a complaint 'does not need detailed factual allegations, ... a formulaic recitation of the elements of a cause of action will not do.'" DelRio-Mocci v. Connolly Prop. Inc., 672 F.3d 241, 245 (3d Cir. 2012) (citing Twombly, 550 U.S. at 555). In other words, "[factual allegations must be enough to raise a right to relief above the speculative level." Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013) (internal citations and quotation marks omitted). A court "take[s] as true all the factual allegations in the Complaint and the reasonable inferences that can be drawn from those facts, but... disregard[s] legal conclusions and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Ethypharm S.A. France v. Abbott Laboratories, 707 F.3d 223, 231, n.14 (3d Cir. 2013) (internal citations and quotation marks omitted).

Twombly and Iqbal require [a district court] to take the following three steps to determine the sufficiency of a complaint: First, the court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.

Connelly v. Steel Valley Sch. Dist, 706 F.3d 209, 212 (3d Cir. 2013).

         "[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 (internal citations and quotation marks omitted). This "plausibility" determination will be a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

         However, even "if a complaint is subject to Rule 12(b)(6) dismissal, a district court must permit a curative amendment unless such an amendment would be inequitable or futile." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).

[E]ven when plaintiff does not seek leave to amend his complaint after a defendant moves to dismiss it, unless the district court finds that amendment would be inequitable or futile, the court must inform the plaintiff that he or she has leave to amend the complaint within a set period of time.

Id.

         IV. Discussion

         Defendants seek dismissal of the complaint on the following grounds: (1) sovereign immunity bars the Court's subject matter jurisdiction over the claims against the United States; (2) the Court lacks personal jurisdiction over Acting BOP Director Hurwitz; (3) Wilson failed to allege that any of the four named Defendants were personally involved in the alleged constitutional violations; and, (4) Wilson failed to establish a FTCA claim. (Doc. 23). The Court will first address Wilson's Bivens claim before turning to the FTCA claim.

         A. Bivens Claim

         1. Sover ...


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