Opinion
3:19-cv-104-SLH-KAP
09-03-2021
ANDRE MARIE NGONO, Plaintiff, v. MOSHANNON VALLEY CORRECTIONAL CENTER, et al., Defendants
REPORT AND RECOMMENDATION
KEITH A. PESTO, UNITED STATES MAGISTRATE JUDGE
Recommendation
The United States' motion to dismiss the FTCA claim and the other claims against it, ECF no. 25, should be granted. As I noted in ECF no. 40, the other named defendant, the Geo Group, can file its answer to the operative amended complaint, ECF no. 9, when the court has adopted or rejected this recommendation. Plaintiff filed the original complaint in this matter dated June 15, 2019, at ECF no. 6; shortly thereafter he filed an amended complaint dated August 20, 2019, at ECF no. 8. In response to my screening the matter under 28 U.S.C. 1915A, plaintiff filed a permitted amended complaint styled “First Amended Complaint” dated February 7, 2020, at ECF no. 9. In the course of the filings relating to the motion to dismiss plaintiff filed a proposed “Second Amended Complaint” at ECF no. 44. Both defendants move to strike that complaint, see ECF no. 45 and ECF no. 47. Because plaintiff was not given leave to file it, the proposed amended complaint is a legal nullity, and unless the court orders otherwise the defendants can ignore it. There is no need to strike it from the record, however, so the motions at ECF no. 45 and ECF no. 47 can be terminated as unnecessary.
Report
A private plaintiff can file a civil complaint against the United States of America under the Federal Tort Claims Act, 28 U.S.C. 1346(b), 2401(b), 2671 et seq. “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. 1346(b). A plaintiff must first, within two years after the claim accrues, file an administrative claim (usually for a sum certain) with the appropriate federal agency, 28 U.S.C. 2401(b). No claim under the FTCA may be brought “unless the claimant shall have first presented the claim to the appropriate federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make a final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.” 28 U.S.C. 2675(a). If a claim is administratively denied, a plaintiff has six months to file a timely civil complaint. 28 U.S.C. § 2401(b), 28 U.S.C. § 2675(a).
Exhaustion of administrative remedies is required by 28 U.S.C. § 2675(a), and a court does not have subject matter jurisdiction over an FTCA claim that has not been properly exhausted. Jackson v. United States, 730 F.2d 808, 809 (D.C.Cir.1984).
Here, plaintiff claims that while he was an inmate at the Moshannon Valley Correctional Center, a private prison operated by Geo Group under contract with the Bureau of Prisons, he was raped by his cellmate between December 23, 2017 and December 27, 2017, and that on December 28, 2017, employees of the Geo Group used excessive force against him. The liability of the United States under the FTCA appears to be based on the allegation that at some point early in 2018 plaintiff told R. Hendrix, an employee of the BOP acting as the onsite monitor at the MVCC, that plaintiff had been raped and that “nothing had been done” MVCC staff, but R. Hendrix did not take any action, and in fact refused to speak with plaintiff further.
Plaintiff filed an administrative tort claim dated April 9, 2019 with the Federal Bureau of Prisons Northeast Regional Office (the correct agency for a tort claim against the United States arising from actions by a BOP employee at MVCC, see 28 C.F.R. § 543.31(c)), on April 13, 2018. ECF no. 26-2. In Paragraph 8, the Basis of Claim, plaintiff describes three events: (1) a brutal attack by guards on December 28, 2017; (2) from December 23, 2017 to December 27, 2017, “prison employees neglect fully allowed another inmate to rape” plaintiff; and (3) on March 28, 2018, the Warden at the MVCC confiscated his diary. Plaintiff sought compensation for each event: $250,000 for hypothetical “book revenues” lost when his diary was confiscated, $500,000 for “injuries, ” and $250,000 for “rape.” No further information was given.
The administrative tort claim was rejected on April 23, 2018, ECF no. 26-3, with the explanation:
After review, we are denying your claim because you do not make any allegations concerning a Federal Bureau of Prisons employee. Employees of contract, county, or local jail facilities are not employees of the BOP as defined by the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2675.
The rejection letter further advised plaintiff that he could file a complaint in the appropriate district court within six months of the date of the letter. Plaintiff did not do that: as noted above his complaint was at the earliest filed in June 2019.
Plaintiff argues, see ECF no. 35, that his complaint against the United States is timely because he filed a second administrative tort claim in February 2019, within two years of the accrual of his claim and then filed his complaint within six months of the denial of that claim. Plaintiff's second administrative tort claim is attached to ECF no. 35 and was an exhibit to the original complaint. It is dated February 1, 2019, and in Paragraph 8 it identifies the rape and the excessive force claims; the confiscated diary claim is dropped. This time plaintiff asks for a single sum of $10 million. I note that once again there is no information that would alert the United States that any BOP employee was involved with the events at the MVCC.
Plaintiff sent this second claim to the Privatization Management Branch, where it was received on February 15, 2019 and rejected on March 8, 2019. Inmates in private prisons use an administrative remedy system for complaints about prison conditions that begins with a grievance to the warden of the private prison, then an appeal to the BOP's Privatization Management Branch using Administrative Remedy Form BP-230, and finally to the BOP's Office of General Counsel, using Administrative Remedy Form BP-231. See Delgado v. Julian, 2018 WL 4655779, at *1 (S.D.Miss. Mar. 1, 2018), report and recommendation adopted, 2018 WL 2689271 (S.D.Miss. June 5, 2018); Pichardo v. Zenk, 2011 WL 5102814, at *2 (S.D. Ga. Sept. 27, 2011), report and recommendation adopted, 2011 WL 5103758 (S.D. Ga. Oct. 26, 2011). This would be the route the plaintiff might use to exhaust a claim against an employee of the GEO group under the Prison Litigation Reform Act, or an appeal of a disciplinary sanction before filing a petition for a writ of habeas corpus, but is not the correct route for exhausting a claim under the FTCA. The administrative remedy systems are different because they were enacted separately at different times to serve different purposes.
This second claim was rejected with the explanation: “Your issue is not appealable to the BOP. You must use the grievance procedures at your facility.” Whether this was vague advice to start over again at step one of the remedial process or the recipient simply misunderstood what plaintiff was submitting is not clear, but plaintiff neither started over nor appealed the rejection to the BOP's Office of General Counsel. Even if plaintiff were allowed to mix and match remedial schemes, this effort did not exhaust any administrative remedy procedure.
Plaintiff makes other claims against the United States, and they are briefly disposed of. Plaintiff's Freedom of Information request is still open, so no FOIA claim is ripe. See Chandler Declaration, and exhibits thereto, ECF no. 41-3 through 41-7. Plaintiff seeks damages for an alleged violation of the Administrative Procedures Act, and damages are not an available remedy. He invokes the Privacy Act and the Prison Rape Elimination Act, but he fails to state any claim under them. In short, the United States should be completely dismissed as a defendant.
The Court of Appeals, in Grayson v. Mayview State Hospital, 293 F.3d 103 (3d Cir.2002) and other cases, directs district courts to allow plaintiffs in civil rights cases leave to amend unless that amendment is "futile" or "inequitable." Amendment of the complaint does not cure the jurisdictional defect and would be futile. Additionally, amending the complaint would also be futile because plaintiff's theory of liability against the United States on the basis that its employee did not “do something” well after the plaintiff's alleged injuries is flawed from the start. To hold the United States liable under the FTCA, its employee must have had actual control over the physical conduct of the MVCC employees engaged in the supervision of the plaintiff at the time the injury occurred. Varma v. Fed. Bureau of Prisons, 2010 WL 11537825, at *2 (W.D.Pa. Apr. 26, 2010), report and recommendation adopted, 2010 WL 11537826 (W.D.Pa. May 27, 2010), aff'd, 420 Fed.Appx. 183 (3d Cir. 2011).
Pursuant to 28 U.S.C.§ 636(b)(1), the parties can within fourteen days file written objections to this Report and Recommendation. They are advised that in the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir.2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).