NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-3790
___________
KENNETH MURCHISON,
Appellant
v.
WARDEN LEWISBURG USP; UNKNOWN MEMBERS OF THE SORT TEAM;
PHYSICIANS ASST. POTTER; DR. PIGOS; LT. SEBA; LT. SHERMAN;
COUNSELOR METZGER; EMT MCCLINTOC
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 3-11-cv-02285)
District Judge: Honorable Matthew W. Brann
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 7, 2014
Before: CHAGARES, GARTH and SLOVITER, Circuit Judges
(Opinion filed: May 8, 2014)
___________
OPINION
___________
PER CURIAM
Kenneth Murchison, proceeding pro se and in forma pauperis, appeals from the
United States District Court for the Middle District of Pennsylvania’s order dismissing
his complaint in part and granting summary judgment in favor of Defendants in part. For
the following reasons, we will affirm in part, vacate in part, and remand.
I.
In December 2011, Murchison filed a pro se civil complaint in the District Court.
Murchison indicated in the caption of the complaint that he was bringing suit pursuant to
Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388
(1971). Murchison named a variety of individuals as defendants, including officials at
United States Penitentiary Lewisburg, where he was an inmate. In his complaint,
Murchison alleged that during May 16-18, 2011, Defendants injured him through the use
of excessive force, unlawful restraint, sexual assault, the denial of medical care, the
denial of food and water, and torture. Murchison sought injunctive relief and damages.
In January 2012, the Magistrate Judge issued a report and recommendation, which
the District Court adopted, dismissing with prejudice Murchison’s claims for money
damages against Defendants in their official capacities, dismissing with prejudice claims
against certain individuals, and dismissing without prejudice constitutional claims against
the remaining defendants. Murchison filed his first-amended complaint in April 2012.
That complaint listed the remaining individual defendants and added as a defendant the
Federal Bureau of Prisons (“BOP”). The complaint indicated in the caption that
Murchison was bringing suit pursuant to Bivens. The claims raised in the complaint
related to the May 2011 incident, and Murchison indicated that all violations were
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asserted under the Eighth Amendment. However, Murchison referenced the “Tort Claim
Act” and cited 28 U.S.C. § 501, which provides that the Department of Justice, of which
the BOP is a part, is a U.S. executive department. In June 2012, the Magistrate Judge
filed a report and recommendation, which the District Court adopted in part and rejected
in part. As the Magistrate Judge recommended, the District Court ordered that the claims
against the BOP be dismissed with prejudice because the BOP is not a proper defendant
in a Bivens action. The Magistrate Judge also found that it would be futile to allow
Murchison to amend his pleading as to the BOP. The District Court allowed Murchison’s
claims against the remaining individual defendants to proceed.
After the filing of the June 2012 report and recommendation, but before the
District Court partially adopted it, Murchison filed a second-amended complaint. In that
complaint, Murchison removed the BOP from the list of defendants. In the caption,
Murchison again indicated that he was bringing suit pursuant to Bivens, but he also
indicated that he sought relief under the FTCA. The complaint focused on the May 2011
incident and included for the first time claims related to a similar allegation of excessive
force and retaliation that occurred on June 17, 2012. Murchison still sought injunctive
relief and damages.
Defendants filed a motion to dismiss pursuant to Rule 12(b) of the Federal Rules
of Civil Procedure and, in the alternative, a motion for summary judgment pursuant to
Rule 56 of the Federal Rules of Civil Procedure. In an August 2013 report and
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recommendation, the Magistrate Judge recommended dismissing any claim that
Murchison attempted to raise under the FTCA because he did not name the United States
as a defendant. The Magistrate Judge also recommended granting summary judgment in
favor of Defendants as to the Bivens claims, concluding that Murchison failed to exhaust
his administrative remedies. Over Murchison’s objections, which included a specific
request for an opportunity to amend his complaint to add the United States as a
defendant, the District Court adopted the report and recommendation, dismissed
Murchison’s complaint as to his FTCA claims, and granted Defendants summary
judgment as to the Bivens claims. Murchison timely appealed.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and exercise plenary review
over both the District Court’s dismissal order and the order granting summary judgment.
See Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009); Allah v. Seiverling, 229 F.3d
220, 223 (3d Cir. 2000). Because the District Court’s dismissal order did not indicate
whether the dismissal was with or without prejudice, we treat it as an “adjudication on the
merits.” Fed. R. Civ. P. 41(b). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Summary judgment is proper only when
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the record “shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
III.
A. Bivens Claims
The Prison Litigation Reform Act (“PLRA”) prohibits an inmate from bringing a
civil rights suit alleging specific acts of unconstitutional conduct by prison officials “until
such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
This requirement applies to federal prisoners, like Murchison, seeking relief through a
Bivens action. See Nyhuis v. Reno, 204 F.3d 65, 68-70 (3d Cir. 2000). The record
confirms that Murchison filed numerous requests for administrative remedies during the
period between when he alleged his claims first arose and the filing of his complaint.
However, none of the requests that Murchison properly submitted to the Central Office of
the BOP, see 28 C.F.R. § 542.15(a), addressed the claims raised in his complaint.1
Accordingly, Murchison failed to exhaust his administrative remedies and the District
Court properly granted summary judgment in favor of Defendants as to the Bivens
claims.
1
During the same time period, Murchison filed other administrative remedy requests
with the Central Office, but they were rejected as improperly submitted. While it is not
clear from the record whether those requests pertained to the claims raised in the
complaint, it is inconsequential because those rejected requests cannot be used to satisfy
the PLRA’s exhaustion requirement. See Woodford v. Ngo, 548 U.S. 81, 93 (2006);
Spruill v. Gillis, 372 F.3d 218, 230-31 (3d Cir. 2004) (discussing the PLRA’s procedural
default component).
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B. FTCA Claims
The only proper defendant in a suit pursuant to the FTCA is the United States.
See King v. U.S. Dep’t of Veterans Affairs, 728 F.3d 410, 413 n.2 (5th Cir. 2013); CNA
v. United States, 535 F.3d 132, 138 n.2 (3d Cir. 2008). Insofar as Murchison attempted
to raise FTCA claims in his second-amended complaint, he failed to do so because only
individuals were named as defendants. Accordingly, the District Court lacked subject
matter jurisdiction over any claims raised under the FTCA and dismissal was appropriate.
See Mars v. Hanberry, 752 F.2d 254, 255 (6th Cir. 1985) (“[T]he FTCA does not grant
federal courts jurisdiction over actions against individual defendants such as federal
employees.”).
In his objections to the August 2013 report and recommendation, Murchison stated
that given the Magistrate Judge’s conclusion that his complaint failed to state an FTCA
claim, he should be allowed to “seek Leave to Amend His Complaint, and re-instate the
United States as a Defendant.” In a case such as this, where a plaintiff has already
amended his complaint once as a matter of course, the plaintiff may amend only with
leave of court or consent from the opposing party, but “leave shall be freely given when
justice so requires.” Fed. R. Civ. P. 15(a). The District Court did not address
Murchison’s request and dismissed his FTCA claims.
Generally, we review the denial of a request for leave to amend for abuse of
discretion, “and there is none where pleading deficiencies would not have been remedied
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by proposed amendments.” Kanter v. Barella, 489 F.3d 170, 181 (3d Cir. 2007).
However, where, as here, the District Court did not determine whether leave to amend
would have been futile our review is de novo. Great W. Mining & Mineral Co. v. Fox
Rothschild LLP, 615 F.3d 159, 175 (3d Cir. 2010). “Dismissal without leave to amend is
justified only on the grounds of bad faith, undue delay, prejudice or futility.” Alston v.
Parker, 363 F.3d 229, 236 (3d Cir. 2004). “[E]ven when a plaintiff does not seek leave to
amend, if a complaint is vulnerable to 12(b)(6) dismissal, a District Court must permit a
curative amendment, unless an amendment would be inequitable or futile.” Id. at 235;
see also Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000). Here, the District Court did
not address Murchison’s request for leave to amend, and failed to either inform him that
he had the opportunity to amend his complaint or determine that amendment would have
been inequitable or futile. Given these circumstances, we will remand in order that the
District Court grant Murchison leave to amend, unless an amendment would be
inequitable or futile.
IV.
For the foregoing reasons, we will affirm in part, vacate in part, and remand for
further proceedings. Murchison’s motion for an extension of time to file a reply brief is
granted.
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