Opinion
CIVIL ACTION NO. 3:17-cv-01798
09-06-2019
ANTHONY MONEYHAM, Plaintiff, v. UNITED STATES, et al., Defendants.
(MUNLEY, J.)
() REPORT AND RECOMMENDATION
This is a federal civil rights action, brought by pro se plaintiff Anthony Moneyham, a former federal inmate who was incarcerated at USP Lewisburg, located in Union County, Pennsylvania, at the time of filing. The plaintiff's complaint was constructively filed on September 28, 2017, the date when he delivered it to prison officials for mailing. (Doc. 1). See generally Houston v. Lack, 487 U.S. 266, 270-71 (1988) (articulating the "prison mailbox rule"). The plaintiff has been granted leave to proceed in forma pauperis in this action. (Doc. 11).
The complaint was received and docketed by the Clerk of Court on October 4, 2017. The complaint itself is not dated, but the envelope in which it was mailed is postmarked October 2, 2017, date-stamped September 29, 2017, and marked with the handwritten annotation "9/28/17." Viewing these markings in the light most favorable to the plaintiff, we have treated the earliest of them as the date when the prisoner-plaintiff presented his complaint to prison officials for mailing.
The complaint names eight individual prison officials and the United States as defendants. It alleges the violation of Moneyham's federal constitutional rights, seeking an award of damages pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In particular, Moneyham alleges that on February 21, 2015, six of the individual defendants—Lt. Seeba, Officer Manning, Officer Missigman, Paramedic Barth, and Paramedic Potter—beat him while he was in hand restraints. He seeks to hold the other two individual defendants—Lt. Bidelspach and Officer Beaver—liable for failure to protect him from this attack. In addition, Moneyham alleges that Potter violated his First Amendment rights by interfering with his hunger strike. Moneyham also appears to seek to hold the United States liable for the state law torts of assault and battery under the Federal Tort Claims Act ("FTCA").
We note that it is questionable whether Bivens may afford a remedy for a First Amendment violation of the sort alleged by Moneyham in this case. See generally Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017) (noting that the Supreme Court has "consistently refused to extend Bivens to any new context or new category of defendants"); Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012) ("We have never held that Bivens extends to First Amendment claims."); Bistrian v. Levi, 912 F.3d 79, 95 (3d Cir. 2018) ("The Supreme Court has never recognized a Bivens remedy under the First Amendment."). Because such a claim would be time-barred in any event, we need not decide whether Bivens extends to the circumstances raised by Moneyham's First Amendment claim.
The complaint names the United States as lead defendant in the caption and references 28 U.S.C. §1346(b) as an alternative basis for his complaint. It does not otherwise reference the United States or the FTCA.
The United States and all of the individual defendants except for Lt. Seeba (collectively, the "Federal Defendants") are jointly represented by the United States Attorney. The Federal Defendants have filed a Rule 56 motion for summary judgment, together with a statement of material facts with supporting exhibits and a brief in support. (Doc. 20; Doc. 29 & attachs.; Doc. 30). Appearing separately and represented by private counsel, Lt. Seeba has filed a Rule 12(b)(6) motion to dismiss, together with a brief in support. (Doc. 33; Doc. 38). Although Moneyham has requested and has been granted several extensions of time, he has failed to file any response whatsoever to either motion. (See Doc. 34; Doc. 35; Doc. 42; Doc. 43; Doc. 45; Doc. 47; Doc. 49; Doc. 51; Doc. 58; Doc. 59; Doc. 61; Doc. 64). Both motions are ripe for disposition.
The defendants' motions were filed in June and July 2018. The plaintiff has been granted several extensions of time totaling more than a year. During that span of time, he was released from prison (on June 21, 2019). Despite the Court's indulgence in granting his repeated—and often untimely—requests for extensions of time, Moneyham has failed to file a substantive response to the defendants' motions.
For the reasons that follow, we recommend that the action be dismissed for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, and for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), 28 U.S.C. § 1915A(b)(1), 42 U.S.C. § 1997e(c)(1), and Rule 12(b)(6) of the Federal Rules of Civil Procedure.
I. BACKGROUND
This is Moneyham's second lawsuit regarding the same incident that occurred on February 21, 2015. His first lawsuit, asserting Bivens claims against various individual defendants only, was filed mere days after the February 21, 2015, incident, and it ended on September 14, 2017, when the action was dismissed without prejudice on summary judgment for failure to exhaust available administrative remedies prior to bringing suit. See Moneyham v. Potter, No. 3:15cv436, 2017 WL 4073794 (M.D. Pa. Sept. 14, 2017) (granting summary judgment); see also Moneyham v. Potter, Civil Action No. 3:15-cv-00436, 2017 WL 4079543 (M.D. Pa. Aug. 3, 2017) (report and recommendation).
The United States was not a party-defendant to the first lawsuit, and no FTCA claims were raised in it.
This second lawsuit was filed two weeks later. In his pro se complaint, Moneyham alleges that, on February 21, 2015, he was beaten while handcuffed by defendants Seeba, Manning, Missigman, Barth, and Potter. He alleges that defendants Bidelspach and Beaver were present but failed to intervene to protect him. Moneyham claims that this conduct by the eight individual defendants violated his Eighth Amendment right to be free from cruel and unusual punishment, and that it constituted the state law torts of assault and battery as well. He further alleges, in cursory fashion, that Potter violated his First Amendment rights by interfering with his hunger strike in some unspecified manner.
Although not explicitly characterized as such in the complaint, we have liberally construed Moneyham's state law tort claims as claims against the United States under the FTCA. See generally Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-46 (3d Cir. 2013) (discussing a court's obligation to liberally construe pro se pleadings and other submissions, particularly when dealing with imprisoned pro se litigants).
For relief, Moneyham seeks declaratory judgment and monetary damages. He requests a declaration that the defendants' conduct violated his Eighth Amendment rights and constituted the torts of assault and battery, and that Potter's interference with his hunger strike violated his First Amendment rights. He requests an award of compensatory and punitive damages with respect to each of the individual defendants.
II. LEGAL STANDARDS
A. Rule 12(b)(1) Dismissal Standard
Although the United States has not filed a Rule 12(b)(1) motion in this action, the Court is permitted to raise the issue of subject matter jurisdiction sua sponte. See Liberty Mut. Ins. Co. v. Ward Trucking Corp., 48 F.3d 742, 750 (3d Cir. 1995) ("Federal courts have an ever-present obligation to satisfy themselves of their subject matter jurisdiction and to decide the issue sua sponte . . . ."); Johnson v. United States, Civil No. 1:CV-08-0816, 2009 WL 2762729, at *2 (M.D. Pa. Aug. 27, 2009). Based on the pleadings and the materials submitted in connection with the pending summary judgment motion, we find it appropriate to recommend sua sponte dismissal of the plaintiff's FTCA claim for declaratory relief for lack of jurisdiction pursuant to Rule 12(b)(1).
In particular, we note that the Federal Defendants seek summary judgment on Moneyham's FTCA claim for lack of subject matter jurisdiction. But "[a] motion to dismiss under Rule 12(b)(1) is the appropriate vehicle to adjudicate the procedural question of subject matter jurisdiction rather than a motion for summary judgment, which goes to the merits of an action." Alamgir v. Napalitano, Civil Action No. 2:10-cv-00306-NBF, 2010 WL 2723209, at *2 (W.D. Pa. July 8, 2010); see also Martorano v. Hertz Corp., 415 F. Supp. 295, 296 n.1 (E.D. Pa. 1976) ("It is clear that a motion for summary judgment is an inappropriate vehicle for raising the question of the court's subject matter jurisdiction. . . . However, since Rule 12(h)(3) permits parties to raise the contention that the court lacks subject matter jurisdiction at any stage of the proceedings, we will treat [the defendant's] contention as if it had been asserted in a Rule 12(b)(1) motion.").
The plaintiff bears the burden of establishing the existence of subject matter jurisdiction under Rule 12(b)(1). See Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991). A defendant may challenge the existence of subject matter jurisdiction in one of two fashions: it may attack the complaint on its face or it may attack the existence of subject matter jurisdiction in fact, relying on evidence beyond the pleadings. See Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Where a defendant attacks a complaint as deficient on its face, "the court must consider the allegations of the complaint as true." Mortensen, 549 F.2d at 891. "In deciding a Rule 12(b)(1) facial attack, the court may only consider the allegations contained in the complaint and the exhibits attached to the complaint; matters of public record such as court records, letter decisions of government agencies and published reports of administrative bodies; and 'undisputably authentic' documents which the plaintiff has identified as a basis of his claims and which the defendant has attached as exhibits to his motion to dismiss." Medici v. Pocono Mountain Sch. Dist., No. 09-CV-2344, 2010 WL 1006917, at *2 (M.D. Pa. Mar. 16, 2010). However, when a motion to dismiss attacks the existence of subject matter jurisdiction in fact, "no presumptive truthfulness attaches to plaintiff's allegations," and "the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Mortensen, 549 F.2d at 891. This case falls into the former category.
B. Rule 12(b)(6) Dismissal Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds the plaintiff's claims lack facial plausibility." Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). In deciding the motion, the Court may consider the facts alleged on the face of the complaint, as well as "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Although the Court must accept the fact allegations in the complaint as true, it is not compelled to accept "unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation." Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). Nor is it required to credit factual allegations contradicted by indisputably authentic documents on which the complaint relies or matters of public record of which we may take judicial notice. In re Washington Mut. Inc., 741 Fed. App'x 88, 91 n.3 (3d Cir. Sept. 25, 2018); Sourovelis v. City of Philadelphia, 246 F. Supp. 3d 1058, 1075 (E.D. Pa. 2017); Banks v. Cty. of Allegheny, 568 F. Supp. 2d 579, 588-89 (W.D. Pa. 2008).
Under Rule 12(b)(6), the defendant has the burden of showing that no claim has been stated. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991); Johnsrud v. Carter, 620 F.2d 29, 32-33 (3d Cir. 1980); Holocheck v. Luzerne County Head Start, Inc., 385 F. Supp. 2d 491, 495 (M.D. Pa. 2005). Although a plaintiff is entitled to notice and an opportunity to respond to a motion to dismiss, he has no obligation to do so—he may opt to stand on the pleadings rather than file an opposition. The Court must nevertheless examine the complaint and determine whether it states a claim as a matter of law. Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991); Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F2d 168, 174 (3d Cir. 1990).
C. Sua Sponte Dismissal Standard
Under 28 U.S.C. § 1915A, the Court is obligated to screen a civil complaint in which a prisoner is seeking redress from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a); James v. Pa. Dep't of Corr., 230 Fed. App'x 195, 197 (3d Cir. 2007). The Court must dismiss the complaint if it "fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915A(b)(1). The Court has a similar obligation with respect to actions brought in forma pauperis and actions concerning prison conditions. See 28 U.S.C. § 1915(e)(2)(B)(i); id. § 1915(e)(2)(B)(ii); 42 U.S.C. § 1997e(c)(1). See generally Banks v. Cty. of Allegheny, 568 F. Supp. 2d 579, 587-89 (W.D. Pa. 2008) (summarizing prisoner litigation screening procedures and standards). The legal standard for dismissing a complaint for failure to state a claim under § 1915(e)(2)(B)(ii), § 1915A(b)(1), or § 1997e(c) is the same as that for dismissing a complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Brodzki v. Tribune Co., 481 Fed. App'x 705, 706 (3d Cir. 2012) (per curiam); Mitchell v. Dodrill, 696 F. Supp. 2d 454, 471 (M.D. Pa. 2010); Banks, 568 F. Supp. 2d at 588.
III. DISCUSSION
To the extent the plaintiff seeks declaratory relief from the United States, we lack subject matter jurisdiction to decide his FTCA claim. To the extent the plaintiff seeks damages from the United States, he has failed to plausibly allege his satisfaction of the procedural prerequisites of the FTCA. Because he filed this action well more than two years after the underlying incident, the plaintiff's Bivens and state law tort claims against the individual defendants are barred by the statute of limitations.
A. Declaratory Relief Under the FTCA
As a sovereign, "[i]t is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212 (1983); see also United States v. Sherwood, 312 U.S. 584, 586 (1941); Merando v. United States, 517 F.3d 160, 164 (3d Cir. 2008). Under the FTCA, the United States has waived its sovereign immunity with respect to tortious conduct by employees of the federal government "under circumstances 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(a)(2); see also id. § 2674; Merando, 517 F.3d at 164. The FTCA is the exclusive waiver of sovereign immunity for actions sounding in tort against the United States and its employees. See 28 U.S.C. § 1346; id. § 2679(b). "[S]trict adherence to the terms and requirements of the FTCA is jurisdictional and cannot be waived." Dilg v. U.S. Postal Serv., 635 F. Supp. 406, 407 (D.N.J. 1986).
Moneyham references the United States as the lead defendant in the caption of his handwritten pro se complaint, and he references 28 U.S.C. § 1346(b) as a basis for this action, in addition to Bivens. Based on this, we have liberally construed his pro se complaint to allege his state law tort claims against the United States, under 28 U.S.C. § 1346(b) and 28 U.S.C. § 2674. See generally Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-46 (3d Cir. 2013) (discussing a court's obligation to liberally construe pro se pleadings and other submissions, particularly when dealing with imprisoned pro se litigants).
The complaint seeks declaratory judgment against the United States, but such relief is not authorized under the FTCA. See United States v. Deuerling, 210 F. Supp. 3d 717, 721 n.2 (W.D. Pa. 2016); Spotts v. United States, Civil No. 3:12-CV-0583, 2013 WL 753520, at *4 n.2 (M.D. Pa. Jan. 10, 2013); see also Trentadue ex rel. Estate of Aguilar v. United States, 397 F.3d 840, 863 (10th Cir. 2005) ("[T]he district court lacks subject matter jurisdiction under the FTCA to provide injunctive and declaratory relief." (citing 28 U.S.C. § 1346(b)).
Accordingly, it is recommended that the plaintiff's FTCA claim for declaratory relief be dismissed for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.
B. Claim for Damages Against the United States
Although he does not explicitly request an award of damages against the United States, we liberally construe the plaintiff's assault and battery claims for damages against the individual defendants as claims against the United States under the FTCA as well. See generally Mala, 704 F.3d at 244-46. As a procedural prerequisite, before bringing suit under the FTCA, a plaintiff must satisfy the statute's exhaustion requirement, which includes timeliness requirements. Section 2675(a) of the FTCA provides:
While the exhaustion requirement is jurisdictional, the FTCA's two-year and six-month limitations periods are not. See United States v. Kai Fun Wong, 135 S. Ct. 1625, 1632-33 (2015).
An action shall not be instituted upon a claim against the United States for money 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, 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.28 U.S.C. § 2675(a). Section 2401(b) of the FTCA further provides:
A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.28 U.S.C. § 2401(b). "[B]oth limitations periods under § 2401(b) must be satisfied in order for an FTCA complaint to be timely." Seiss v. United States, 792 F. Supp. 2d 729, 732 (D.N.J. 2011).
Although the running of a statute of limitations is an affirmative defense, which generally must be raised by way of answer to the complaint, see Fed. R. Civ. P. 8(c), where that defense is obvious from the face of the complaint and no development of the record is necessary, a court may dismiss a time-barred complaint for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii), 28 U.S.C. § 1915A(b)(1), and 42 U.S.C. § 1997e(c)(1). See McPherson v. United States, 392 Fed. App'x 938, 943 (3d Cir. 2010) (per curiam). Here, Moneyham has alleged that "[a]n administrative claim has been presented to the federal agency and it was denied." (Doc. 1, at 1). He does not allege the date on which he presented the administrative claim or the date when notice of final denial was mailed, nor does he allege that his presentment of the administrative claim or filing of this action is timely. Given the passage of time between the February 2015 incident and the commencement of this action more than 31 months later, the limitations defense is obvious on the face of Moneyham's complaint, and his conclusory allegations regarding the exhaustion of administrative remedies is insufficient to satisfy the procedural prerequisites of timely presenting his administrative claim and timely filing this action. See Wassouf v. U.S. Dep't of Homeland Sec., C.A. No. 11-10555-JLT, 2011 WL 3654393, at *7 (D. Mass. Aug. 16, 2011); Pace v. Platt, No. 3:01-CV-471/LAC, 2002 WL 32098709, at *5 (N.D. Fla. Sept. 10, 2002).
Accordingly, it is recommended that Moneyham's FTCA claim for damages be dismissed for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), 28 U.S.C. § 1915A(b)(1), and 42 U.S.C. § 1997e(c)(1).
C. Bivens and State Law Tort Claims
The plaintiff's Bivens and state law assault and battery tort claims are similarly barred by the applicable statute of limitation. The applicable limitation period for a Bivens action in this Court is Pennsylvania's two-year statute of limitations for personal injury claims. See Brown v. Tollackson 314 Fed. App'x 407, 408 (3d Cir. 2008) (per curiam); Millbrook v. United States, 8 F. Supp. 3d 601, 610 (M.D. Pa. 2014); see also 42 Pa. C.S.A. § 5524. Moneyham's state law assault and battery claims are subject to the same two-year statute of limitations. See 42 Pa. Cons. Stat. Ann. § 5524(1). The incident underlying his Bivens and state law claims occurred on February 21, 2015. As noted by both sets of defendants in their motion papers, the limitations period was tolled while Moneyham exhausted his administrative remedies. See Pearson v. Sec'y Dep't of Corr., 775 F.3d 598, 603 (3d Cir. 2015) (§ 1983 action by a state prisoner); Bullock v. Buck, 611 Fed. App'x 744, 746 (3d Cir. 2015) (per curiam) (applying Pearson to a Bivens action by a federal prisoner). Moneyham completed the administrative remedy process on July 7, 2015, when his final appeal to the General Counsel for the Bureau of Prisons was denied. See Moneyham, 2017 WL 4073794, at *1, *3; see also Moneyham, 2017 WL 4079543, at *2. There is no apparent basis for statutory tolling of the limitations period. Nor is there any apparent basis for equitable tolling. Thus, the complaint in this action, which was constructively filed on September 28, 2017, was filed almost three months after the limitations period expired on July 7, 2017.
We may properly take judicial notice of the undisputed factual record of this prior proceeding, as well as the adjudicative facts upon which these prior judicial opinions relied. See Fed. R. Evid. 201; McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009) ("[A] court may take judicial notice of a prior judicial opinion."); Angelico v. Lehigh Valley Hosp., 184 F.3d 268, 278 n.7 (3d Cir. 1999) ("[T]he District Court was entitled to take judicial notice of the facts of [a prior] decision."); Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 416 & n.3 (3d Cir. 1988) ("[T]he district court was entitled to take judicial notice of [the record of a prior proceeding] in rendering its decision, regardless of the [dispositive] motion employed."); Int'l Bus. Machines Corp. v. Groupon, Inc., 289 F. Supp. 3d 596, 601 (D. Del. 2017) ("The Court may also take judicial notice of the factual record of a prior proceeding."). See generally United States v. Gould, 536 F.2d 216, 219 (8th Cir. 1976) ("When a court . . . finds facts concerning the immediate parties who did what, where, when, how, and with what motive or intent[,] the court . . . is performing an adjudicative function, and the facts are conveniently called adjudicative facts.") (ellipses in original).
"Like the limitations period, the tolling rules in [Bivens] actions are taken from the rules of the forum state, unless they conflict with federal law or policy." Foster v. Morris, 208 Fed. App'x 174, 177 (3d Cir. 2006) (per curiam); see also Omar v. Blackman, 590 Fed. App'x 162, 165 (3d Cir. 2014) (per curiam) ("We must also account for the state's tolling rules. The same rules apply to Bivens actions.") (citation omitted). But by its own terms, Pennsylvania's savings clause, 42 Pa. Const. Stat. Ann. § 5535(a), which allows a plaintiff a grace period in which to refile an action following dismissal without prejudice, does not apply to toll actions "to recover damages for injury to a person caused by the wrongful act of another." Foster, 208 Fed. App'x at 177 (citing 42 Pa Const. Stat. Ann. § 5535(a)(2)(i)); see also Di Sabatino v. Mertz, 82 F. Supp. 248, 249-50 (M.D. Pa. 1949) ("In the absence of a statute, the failure of an action during the pendency of which the statute of limitations has run will bar the remedy."). See generally Cardio-Med. Assoc., Ltd. v. Crozer-Chester Med. Ctr., 721 F.2d 68, 77 (3d Cir. 1983) ("It is a well recognized principle that a statute of limitations is not tolled by the filing of a complaint subsequently dismissed without prejudice. As regards the statute of limitations, the original complaint is treated as if it never existed.").
"Equitable tolling is appropriate in three general scenarios: (1) where a defendant actively misleads a plaintiff with respect to her cause of action; (2) where the plaintiff has been prevented from asserting her claim as a result of other extraordinary circumstances; or (3) where the plaintiff asserts her claims in a timely manner but has done so in the wrong forum." Lake v. Arnold, 232, F3d 360, 370 n.9 (3d Cir. 2000).
Accordingly, it is recommended that Moneyham's Bivens and state law assault and battery claims against the individual defendants be dismissed for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), 28 U.S.C. § 1915A(b)(1), and 42 U.S.C. § 1997e(c)(1), and Rule 12(b)(6) of the Federal Rules of Civil Procedure.
D. Leave to Amend
The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure to state a claim, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Based on the allegations of the complaint and the adjudicative facts of which we have taken judicial notice, it appears that amendment in this case would be futile. It is therefore recommended that the complaint be dismissed without leave to amend.
IV. RECOMMENDATION
For the foregoing reasons, it is recommended that:
1. Lt. Seeba's motion to dismiss (Doc. 33) be GRANTED;
2. The plaintiff's FTCA claim for declaratory relief against the United States be DISMISSED for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure;
3. The plaintiff's FTCA claim for damages against the United States and his Bivens and state law assault and battery claims against the individual defendants be DISMISSED for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), 28 U.S.C. § 1915A(b)(1), 42 U.S.C. § 1997e(c)(1), and Rule 12(b)(6) of the Federal Rules of Civil Procedure;
4. The Federal Defendants' motion for summary judgment (Doc. 20) be DENIED as MOOT; and
5. The Clerk be directed to CLOSE this case. Dated: September 6, 2019
s/Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated September 6, 2019. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
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.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights. Dated: September 6, 2019
s/Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge