Opinion
Civil No.3:18-CV-1866
10-22-2018
FRANCISCO SERRANO, Plaintiff, v. UNKNOWN BUREAU OF PRISONS EMPLOYEES, Defendants
(Judge Caputo)
( ) REPORT AND RECOMMENDATION
I. Statement of Facts and of the Case
This pro se, in forma pauperis prisoner lawsuit was transferred to this Court by the United States District Court for the Central District of California, and now comes before us for a second legally-mandated screening review. The plaintiff, Francisco Serrano, is a federal inmate who is currently housed at FCI Victorville, in Adelante, California. Serrano's initial complaint was filed on September 20, 2018, and was a spare 2-page document which recited that he contracted food poisoning while incarcerated at the United States Penitentiary, Lewisburg. According to Serrano he attempted to settle this food poisoning claim but no agreement was made. (Doc. 1.) On the basis of this cursory recital Serrano demanded damages in the amount of $10,000,000 from unnamed prison officials. (Id.) However, notably missing from the complaint is any indication regarding when these events allegedly took place. Nor did Serrano identify any defendants upon whom the complaint could be served.
These were curious and significant omissions since it appears that Serrano was housed at another federal prison in central Pennsylvania, the United States Penitentiary Canaan, in 2012. While incarcerated at U.S.P. Canaan, Serrano allegedly suffered food poisoning at that institution; filed a lawsuit as a result of that alleged food poisoning; and settled that claim with the United States Bureau of Prison. See Serrano v. United States, 3:12-CV-2467. Thus, in Serrano's latest filing we are presented with a striking circumstance: Serrano alleges that he suffered food poisoning at two different federal prisons in Pennsylvania, Canaan and Lewisburg, and was compensated for one food poisoning episode but not for the other.
Serrano did not pay the filing fee required by law and apparently sought leave to proceed in forma pauperis. On September 25, 2018, we conditionally granted Serrano leave to proceed in forma pauperis, but recommended that this complaint be dismissed without prejudice to Serrano filing an amended complaint which recited when and where this conduct is alleged to have occurred, matters that were material to an informed understanding of whether Serrano may maintain this lawsuit in federal court.(Doc. 6.) On October 16, 2018, the district court adopted this Report and Recommendation. (Doc. 8.) Serrano then filed an amended complaint on October 19, 2018. (Doc. 9.)
This amended complaint only marginally improved the clarity of Serrano's pleadings. Like the original complaint, the amended complaint is a cursory 2-page document. That amended complaint still does not identify any individual defendants who may be served, and only states that this alleged food poisoning took place at some time in September of 2016. The amended complaint also appears to allege that Serrano filed an administrative tort claim under the Federal Tort Claims Act, (FTCA) but does not seem to bring an FTCA claim against the United States. Instead, Serrano simply brings constitutional tort claims against unidentified prison officials.
Because this cursory pleading still does not fully satisfy federal pleading standards, for the reasons set forth below, it is recommended that the amended complaint be dismissed, but that Serrano be afforded a final opportunity to endeavor to state a claim upon which relief may be granted.
II. Discussion
A. Screening of Pro Se In Forma Pauperis complaints
This Court has an on-going statutory obligation to conduct a preliminary review of pro se complaints brought by plaintiffs given leave to proceed in forma pauperis in cases which seek redress against government officials. See 28 U.S.C. § 1915(e)(2)(B)(ii). Specifically, the Court must assess whether a pro se complaint fails to state a claim upon which relief may be granted, since Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a complaint should be dismissed for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In addition, when reviewing in forma pauperis complaints, 28 U.S.C. § 1915(e)(2)(B)(ii) specifically enjoins us to "dismiss the complaint at any time if the court determines that . . . the action . . . fails to state a claim upon which relief may be granted. This statutory text mirrors the language of Rule 12(b)(6) of the Federal Rules of Civil Procedure, which provides that a complaint should be dismissed for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6).
With respect to this benchmark standard for legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008)]and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal -U.S.-, 129 S.Ct. 1937 (2009) pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a p[arty] to plead more than the possibility of relief to survive a motion to dismiss.Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, the Court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn from the complaint are to be construed in the light most favorable to the plaintiff. Jordan v. Fox Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court "need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally a court need not "assume that a ... p[arty] can prove facts that the ... p[arty] has not alleged." Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action a party must provide some factual grounds for relief which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do." Id. at 555. "Factual allegations must be enough to raise a right to relief above the speculative level." Id.
In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to dismiss, a court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679. According to the Supreme Court, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678. Rather, in conducting a review of the adequacy of complaint, the Supreme Court has advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.Id. at 679.
Thus, following Twombly and Iqbal a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a complaint must recite factual allegations sufficient to raise the party's claimed right to relief beyond the level of mere speculation. As the United States Court of Appeals for the Third Circuit has stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the . . . well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged . . . are sufficient to show that the plaintiff has a "plausible claim for relief." In other words, a
complaint must do more than allege the p[arty's] entitlement to relief. A complaint has to "show" such an entitlement with its facts.Fowler, 578 F.3d at 210-11.
As the court of appeals has observed: "The Supreme Court in Twombly set forth the 'plausibility' standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege 'enough facts to state a claim to relief that is plausible on its face.' Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings 'allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.' Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing 'more than a sheer possibility that a defendant has acted unlawfully.' Id. A complaint which pleads facts 'merely consistent with' a defendant's liability, [ ] 'stops short of the line between possibility and plausibility of "entitlement of relief." ' " Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011) cert. denied, 132 S. Ct. 1861, 182 L. Ed. 2d 644 (U.S. 2012).
In practice, then, consideration of the legal sufficiency of a complaint entails a three-step analysis: "First, the court must 'tak[e] note of the elements a p[arty] must plead to state a claim.' Iqbal, 129 S.Ct. at 1947 . Second, the court should identify allegations that, 'because they are no more than conclusions, are not entitled to the assumption of truth.' Id. at 1950. 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.' Id." Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010).
In addition to these pleading rules, a civil complaint must comply with the requirements of Rule 8(a) of the Federal Rule of Civil Procedure which defines what a complaint should say and provides that:
(a) A pleading that states a claim for relief must contain (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.
Thus, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a pro se plaintiff's complaint must recite factual allegations which are sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation, set forth in a "short and plain" statement of a cause of action.
Further, when conducting a screening review of a pro se complaint under 28 U.S.C. § 1915, a court may consider whether the complaint is barred under the applicable statute of limitations. As the United States Court of Appeals for the Third Circuit recently explained when it affirmed the screening dismissal of a pro se complaint on statute of limitations grounds:
Civil rights claims are subject to the statute of limitations for personal injury actions of the pertinent state. Thus, Pennsylvania's two year statutory period applies to [these] claims. See Lake v. Arnold, 232 F.3d 360, 368 (3d Cir.2000). The limitations period begins when the plaintiff knows or had reason to know of the injury forming the basis for the federal civil rights action. Gera v. Commonwealth of Pennsylvania, 256 Fed.Appx. 563, 564-65 (3d Cir.2007). Although we have not addressed the issue in a precedential decision, other courts have held that although the statute of limitations is an affirmative defense, district court may sua sponte dismiss a complaint under § 1915(e) where the defense is obvious from the complaint and no development of the factual record is required. See Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir.2006); see also Eriline Co. S.A. v. Johnson, 440 F.3d 648, 656-57 (4th Cir.2006) (citation omitted)(finding that a district court's screening authority under § 1915(e) "differentiates in forma pauperis suits from ordinary civil suits and justifies an exception to the general rule that a statute of limitations defense should not be raised and considered sua sponte.").Smith v. Delaware County Court 260 F. App'x. 454, 455 (3d Cir. 2008); see also Jackson v. Fernandez, No. 08-5694, 2009 WL 233559 (D.N.J. Jan. 26, 2009); Hurst v. City of Dover, No. 04-83, 2008 WL 2421468 (D. Del. June 16, 2008). Therefore, one element of assessing the sufficiency of a pro se, in forma pauperis prisoner complaint entails being able to determine whether that complaint states a claim that falls within the period prescribed by the statute of limitations. Such analysis simply is not possible when a complaint fails to adequately state when various events are alleged to have occurred.
Judged against these legal benchmarks, for the reasons set forth below, Serrano's amended complaint should be dismissed without prejudice to the filing of a second amended complaint.
B. In its Current Form , the Complaint Violates Rule 8
As we had previously noted, Serrano's original complaint, whose factual recitals were unmoored to any dates or times, was subject to dismissal because it failed to comply with Rule 8's basic injunction that "[a] pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." Serrano has attempted to cure this defect by filing an amended complaint which now alleges that these events took place sometime in September of 2016. (Doc. 9.) While this information provides us with some temporal context, the ambiguities in the newly alleged timing of these events, coupled with Serrano's failure to identify any individual defendants, continues to stymie efforts to address either the timeliness or the merits of his claims. The timing of these alleged events remains a significant fact because it is well-settled that constitutional tort claims are subject to the state statute of limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 266-67 (1985). In Pennsylvania, the statute of limitations for a personal injury action is two years. 42 Pa.C.S. § 5524. A cause of action accrues for statute of limitations purposes when the plaintiff knows or has reason to know of the injury that constitutes the basis of the cause of action. Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998); see also, Nelson v. County of Allegheny, 60 F.3d 1010 (3d Cir. 1995).
In the instant case, Serrano's amended complaint alleges that he knew of his injury when it occurred because Serrano alleges that he tried to negotiate a settlement of that claim with the prison. Serrano also now alleges that this incident took place sometime in September of 2016, but does not state when in September of 2016 these events allegedly occurred. In the absence of any more precise indication when these events are alleged to have occurred, neither the defendants, nor the court, can make an informed assessment regarding whether this case is barred by the statute of limitations. Indeed, given the filing date of Serrano's complaint—September 20, 2018—all we can do is surmise that claims accruing prior to September 20, 2016 are likely time-barred.
More is needed here. In this case the pro se amended complaint still does not adequately allege the date of an alleged constitutional infraction and may be subject to dismissal. See Hill v. Havens, No. 4:18-CV-212, 2018 WL 1547883, at *5 (M.D. Pa. Jan. 31, 2018), report and recommendation adopted in part, rejected in part, No. 4:18-CV-00212, 2018 WL 1532799 (M.D. Pa. Mar. 29, 2018); Foster v. Fink, No. 3:14-CV-1368, 2016 WL 1728723, at *6 (M.D. Pa. Mar. 9, 2016), report and recommendation adopted, No. 3:14-CV-01368, 2016 WL 1718246 (M.D. Pa. Apr. 28, 2016); Rummel v. Lewisburg Police, No. 4:14-CV-268, 2015 WL 4078015, at *4 (M.D. Pa. Jan. 27, 2015), report and recommendation adopted in part, rejected in part, No. 4:14-CV-00268, 2015 WL 4078045 (M.D. Pa. July 2, 2015); Collins v. Bates, No. 1:14-CV-1486, 2014 WL 4447553, at *5 (M.D. Pa. Sept. 10, 2014). This lack of clarity regarding when these events are alleged to have occurred is compounded by the fact that Serrano's amended complaint still does not identify any culpable individual actors but simply sues unknown employees of the Bureau of Prisons.
In this Bivens constitutional tort lawsuit, Serrano's continuing failure to identify who he alleges engaged in these constitutional infractions has a dual significance. The complete failure of the complaint to identify any culpable individuals frustrates any efforts to proceed with litigation of these claims for several reasons. First, in the absence of some further identification of the named defendants, it is impossible to effect service of process in any meaningful way. Further, Serrano's efforts to proceed against anonymous defendants are unavailing "because 'it is pointless to include lists of anonymous defendants in federal court; this type of placeholder does not open the door to relation back under Fed.R.Civ.P. 15, nor can it otherwise help the plaintiff.' Wudtke v. Davel, 128 F.3d 1057, 1060 (7th Cir. 1997) (internal citations omitted)." Sims v. Doe, No. 118CV02077WTLMJD, 2018 WL 4283403, at *2 (S.D. Ind. Sept. 7, 2018). In fact, this style of pleading actually compounds the statute of limitations challenges which Serrano faces here since "[t]he naming of a John Doe defendant in a complaint does not stop the statute of limitations from running or toll the limitations period as to that defendant. Talbert v. Kelly, 799 F.2d 62, 66 n. 1 (3d Cir.1986)." Garvin v. City of Philadelphia, 354 F.3d 215, 220 (3d Cir. 2003). Therefore, this October 2018, amended complaint lodged against unidentified defendants relating to a September 2016 incident may still be time-barred.
Finally, we note that there appears to remain some confusion on Serrano's part regarding the claims he wishes to bring and the parties he wishes to sue. While Serrano's amended complaint is cast as a constitutional tort claim brought against unnamed individuals, he has attached to his amended complaint correspondence which suggests that he previously pursued an administrative tort claim against the Bureau of Prisons under the Federal Tort Claims Act. We remind Serrano that these two legal claims have different elements of proof, different limitations periods, and name different party-defendants. As we previously explained to Serrano the last time he pursued food poisoning claims in federal court:
Bivens constitutional tort actions and Federal Tort Claims Act lawsuits have very different requirements in terms of the parties that may properly be named as defendants. With respect to inmate claims made under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2401, et seq. and 28 U.S.C. § 2675, et seq., as a threshold matter, "[t]he FTCA allows federal inmates to sue the United States for injuries sustained while incarcerated. 28 U.S.C. § 2674." Moshier v. United States, No. 05-180, 2007 WL 1703536, * 9 (W.D.Pa. June 11, 2007); Baker v. United States, No. 05-146, 2006 WL 1946877, * 4 (W.D.Pa. July 11,
2006). In this regard, "[t]he FTCA 'was designed primarily to remove the sovereign immunity of the United States from suits in tort, with certain specific exceptions, to render the Government liable in tort as a private individual would be under like circumstances.'" Sosa v. Alvarez-Machain, 542 U.S. 692, 700, 124 S. Ct. 2739, 159 L.Ed.2d 718 (2004) (quoting Richards v. United States, 369 U.S. 1, 6, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962)); CNA v. United States, 535 F.3d 132, 138 (3d Cir.2008). Federal district courts have jurisdiction over civil actions against the United States for damages "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, under the circumstance 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). A person is permitted to sue under the FTCA to recover damages from the United States for personal injuries that he suffered during confinement in a federal prison that resulted from the negligence of a government employee. See Rinaldi v. United States, No. 1:09-CV-1700, 2010 U.S. Dist. LEXIS 66024, at *11 (M.D.Pa. July 1, 2010) (Rambo, J.) (citing United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963)). However, due to the exclusive nature of the remedy available under the FTCA, and its jurisdictional prerequisites, a court may not entertain a civil suit for a claim cognizable under 28 U.S.C. § 1346(b) against "any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 2679(b)(1); see also Meyer, 510 U.S. at 476. As the United States Court of Appeals recently observed in affirming the dismissal of individual defendants from an inmate FTCA action: "The only proper defendant in an FTCA suit is the United States itself. See 28 U.S.C. § 2671 et seq. The FTCA waives the United States' sovereign immunity for claims arising out of torts committed by federal employees 'under circumstances where ... a private person ... would be liable' under applicable state tort law. See 28 U.S.C. § 1346(b)(1)." Feaster v. Federal Bureau of Prisons, 366 F. App'x 322, 323 (3d Cir.2010). Therefore, when inmates bring actions against individual government officers for negligence under the FTCA the proper course to follow is to substitute the United States for these individual defendants and dismiss the individual defendants. Id.
In contrast to FTCA actions, which must be brought against the United States, Bivens constitutional tort lawsuits can only be lodged against individual government officials. Indeed, it is well-settled that Bivens actions against the United States—and, by extension, against federal agencies or officials sued in their official capacity—are barred by sovereign immunity, absent an explicit waiver of that immunity. FDIC v. Meyer, 510 U.S. 471, 483, 114 S. Ct. 996, 127 L.Ed.2d 308 (1994); Huberty v. United States Ambassador to Costa Rica, 316 F. App'x 120 (3d Cir. Aug.21, 2008); Douglas v. United States, 285 F. App'x 955 (3d Cir.2008); Jaffee v. United States, 592 F.2d 712, 717 (3d Cir.1979); Bell v. Rossott, 227 F.Supp.2d 315, 320 (M.D.Pa.2002) (dismissing claim against individual federal defendants sued in their official capacity because the claims are essentially made against the United States). Therefore, a Bivens action cannot be brought against the United States, or a federal agency, since such claims are plainly barred by the doctrine of sovereign immunity.Serrano v. Fenstermaker, No. 3:12-CV-2467, 2012 WL 6929273, at *4-5 (M.D. Pa. Dec. 12, 2012), report and recommendation adopted, No. 3:CV-12-2467, 2013 WL 298065 (M.D. Pa. Jan. 24, 2013).
Given the obstacles that exist to pursuing this case as a Bivens constitutional tort claim, and the uncertainty regarding the precise nature of the claims Serrano wishes to pursue, it is recommended that Serrano clarify, not only the timing of these events and the identities of the defendants he wishes to sue, but also whether he is bringing Bivens claims against individual defendants, FTCA claims against the United States, or both Bivens and FTCA claims.
Thus, while our screening merits analysis calls for dismissal of this action, we recommend that the plaintiff be given another, final opportunity to further litigate this matter by endeavoring to promptly file an amended complaint. We recommend this course mindful of the fact that in civil rights cases pro se plaintiffs often should be afforded an opportunity to amend a complaint before the complaint is dismissed in its entirety, Fletcher-Hardee Corp. v. Pote Concrete Contractors, 482 F.3d 247, 253 (3d Cir. 2007), unless granting further leave to amend is not necessary in a case such as this where amendment would be futile or result in undue delay, Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). Accordingly, it is recommended that the Court provide the plaintiff with an opportunity to correct these deficiencies in the pro se amended complaint, by dismissing this deficient amended complaint at this time without prejudice to one final effort by the plaintiff to comply with the rules governing civil actions in federal court by identifying proper party-defendants, clearly delineating his claims, and reciting with greater precision when and where these events are alleged to have taken place.
III. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the Plaintiff's amended complaint be dismissed without prejudice to the plaintiff endeavoring to correct the defects cited in this report, provided that the plaintiff acts within 20 days of any dismissal order.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in
28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 22d day of October 2018.
S/Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge