814 F. Supp. 2d 454
D.N.J.2011Background
- Federal prisoners sue Defendants for Eighth Amendment medical indifference, retaliation, and negligence at FCI Fort Dix.
- Plaintiff amended to add FTCA claims for premises liability and medical negligence after initial filing.
- Original Complaint (May 1, 2009) alleged constitutional violations and medical neglect; no FTCA claim for tort damages.
- Administrative remedies: Remedy 532854 pursued (April 2009) and denied central office (March 30, 2010).
- Amendment (October 8, 2010) added FTCA premises liability (Count III) and medical negligence (Count II) and repeated constitutional claims (Counts I and IV).
- Court grants in part and denies in part: FTCA Count III survives against United States; Count II and all FTCA/FTCA-related defendants otherwise dismissed; Bivens claims (Counts I and IV) dismissed for failure to exhaust; summary judgment granted on constitutional claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exhaustion of FTCA claims before suit | Plaintiff fully exhausted prior to filing Amended Complaint. | Counts II and III lacked exhaustion prior to filing original complaint. | Premises liability (Count III) survives; medical negligence (Count II) dismissed for lack of jurisdiction. |
| Proper party for FTCA claim | Not specified separately; argues FTCA claims should proceed. | Only United States proper under FTCA. | Only United States may be party to FTCA; other named defendants dismissed from FTCA claim. |
| Bivens claims exhaustion under PLRA | Amended complaint post-exhaustion cures exhaustion defects. | Filing amended complaint after unexhausted original action does not cure exhaustion. | Counts I and IV (Bivens) dismissed for failure to exhaust; counts cannot be cured by post-filing amendment. |
| Availability of administrative remedies | Retaliation fears and refusals rendered remedies unavailable. | Remedies available; evidence insufficient to prove unavailability. | Remedies were available; no unavailability shown; Bivens claims dismissed. |
| Retention of medical negligence claim under FTCA | Original complaint alleged medical negligence; later amended added FTCA claim. | Original claim predates exhaustion; amended claim not saved. | Medical negligence (Count II) dismissed for lack of jurisdiction; premises liability (Count III) survives. |
Key Cases Cited
- Mackovich v. United States, 630 F.3d 1134 (8th Cir.2011) (FTCA exhaustion post-exhaustion amendment supports jurisdiction for new tort claim after full exhaustion)
- Hoffenberg v. Provost, 154 Fed.Appx. 307 (3d Cir.2005) (Amended complaint cannot cure pre-exhaustion FTCA jurisdictional defect)
- Green v. Department of Corrections, 393 Fed.Appx. 20 (3d Cir.2010) (Exhaustion must occur before filing action; amendment after exhaustion not curing earlier failure)
- Ahmed v. Dragovich, 297 F.3d 201 (3d Cir.2002) (PLRA exhaustion not extended to late second-step petition or late filing of suit before exhaustion)
- Oriakhi v. United States, 165 Fed.Appx. 991 (3d Cir.2006) (Unanimous circuit view that exhaustion cannot be cured by post-filing exhaustion)
- Verbanik v. Harlow, 441 Fed.Appx. 931 (2011) (Administrative remedies may be unavailable due to retaliation; standard applied)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (Summary judgment standard; burden to show absence of genuine dispute)