Opinion
Civil Action No. 3:19-cv-13
05-11-2020
DONALD ANSON, Plaintiff, v. UNITED STATES OF AMERICA., et al., Defendants.
MEMORANDUM ORDER
This matter was referred to Magistrate Judge Lisa P. Lenihan for proceedings in accordance with the Federal Magistrates Act, 28 U.S. C. § 636, and Local Civil Rule 72.D.
On April 6, 2020, Magistrate Judge Lenihan issued a Report and Recommendation (ECF 27) recommending that Defendants' Motions to Dismiss (ECF 16) be granted in part and denied in part, as described in the Report and Recommendation. Service of the Report and Recommendation was made on the parties, and no objections have been filed.
Defendants filed a Motion to Dismiss, or in the alternative, Motion for Summary Judgment at ECF 16. However, Magistrate Judge Lenihan ruled that, to the extent Defendants sought summary judgment, said Motion was dismissed without prejudice as premature and further informed the parties that the Motion would be treated only as a Motion to Dismiss (ECF 18). Accordingly, the Motion filed by Defendants at ECF 16 is referred to in this Order as a Motion to Dismiss.
After a de novo review of the pleadings and documents in the case, together with the Report and Recommendation, and pursuant to Local Civil Rule 72.D.2, the Court will accept in whole the findings and recommendations of the Magistrate Judge in this matter. Accordingly, on this 11th day of May, 2020, it hereby is ORDERED that:
1) Defendants' Motion to Dismiss is GRANTED with prejudice as to the Bivens claims
alleging a violation of Plaintiff's constitutional rights against Defendant United States and Defendant Federal Bureau of Prisons, as well as Defendants Bradley, Swindell, Weidlich, and Krepps, in their official capacities;
2) Defendants' Motion to Dismiss is GRANTED with prejudice as to the Federal Tort Claims Act ("FTCA") claims against Defendants Bradley, Swindell, Weidlich, and Krepps;
3) Defendants' Motion to Dismiss is GRANTED without prejudice as to the Bivens claims against Defendants Bradley, Swindell, Weidlich, and Krepps, in their individual capacities, and Plaintiff is given leave to amend as provided herein;
4) Defendants' Motion to Dismiss is DENIED as to the FTCA claims against Defendant United States. The Report and Recommendation recommended that Defendant United States be given an opportunity to file a written notice of intention to enter judgment pursuant to Rule 1042.6 as to the FTCA claim, and Plaintiff be given thirty ("30") days from the filing of said notice to comply with the Certificate of Merit ("COM") rule or offer a legitimate reason why the COM is not needed. On April 16, 2020, Defendant filed such notice at ECF 28. Accordingly, consistent with Magistrate Judge Lenihan's recommendation, Plaintiff must file a response to the notice filed at ECF 28 or offer a legitimate reason why the COM is not needed on or before May 18 , 2020 to avoid these claims being dismissed with prejudice;
5) Defendants' Motion to Dismiss is GRANTED without prejudice as to the claims against the John and Jane Doe Defendants, and Plaintiff is given leave to amend as provided herein.
Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). As referenced in the Report and Recommendation: "'Bivens established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right.'" Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006)(quoting Carlson v. Green, 446 U.S. 14, 18 (1980)). A Bivens action is the federal equivalent of a suit brought against state officials under Section 1983. Id. (citing Wilson v. Layne, 526 U.S. 603, 609 (1999)) (other citation omitted); see also Brown v. Philip Morris, Inc., 250 F.3d 789, 800 (3d Cir. 2001).
The rulings at Nos. 1 and 2 are "with prejudice" as these claims are without basis in the law and the flaws in these claims cannot be corrected by amendment. --------
If Plaintiff wishes to file an amended pleading as described in the Report and Recommendation (ECF 27), his deadline for doing so is June 10 , 2020 . Should Plaintiff file an amended pleading, he must do so consistent with rulings in this Memorandum Order; if Plaintiff does not timely file an amended pleading by such date, the claims dismissed without prejudice under this Order shall convert to dismissal with prejudice without further Order or notice. The Magistrate Judge's Report and Recommendation (ECF 27) is adopted as the Opinion of the District Court.
/s/_________
Stephanie L. Haines
United States District Judge