United States District Court, M.D. Pennsylvania
D. MARIANI, UNITED STATES DISTRICT JUDGE
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 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).
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. (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. The Court will also dismiss the action
against the two unknown officers pursuant to Federal Rule of
Civil Procedure 4(m).
Allegations of the Complaint
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.
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
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.
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).
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).
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."
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.
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.