McCrudden v. United States Of America et al

Filing 26

OPINION. Signed by Judge Robert B. Kugler on 3/31/2016. (tf,n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
VINCENT McCRUDDEN,
:
:
Plaintiff,
:
Civ. No. 14-3532 (RBK) (AMD)
:
v.
:
:
OPINION
UNITED STATES OF AMERICA, et al., :
:
Defendants.
:
____________________________________:
ROBERT B. KUGLER, U.S.D.J.
I. INTRODUCTION
Plaintiff was a federal prisoner incarcerated at the Federal Correctional Institution at Fort
Dix in Fort Dix, New Jersey (“F.C.I. Fort Dix”). He filed a signed civil rights complaint pursuant
to 42 U.S.C. § 1983 on July 17, 2014. (ECF No. 11.)
On July 13, 2015, Defendant the United States of America, the Department of Justice
(“DOJ”), the Bureau of Prisons (“BOP”), the Federal Bureau of Investigation (“FBI”), Warden
Donna Zickefoose, and Lieutenant Anderson (collectively, “Defendants”) filed the current partial
motion to dismiss Plaintiff’s Complaint. (ECF No. 23.) On September 1, 2015, Plaintiff filed a
Response in Opposition to Defendants’ motion. (ECF No. 24.) Lastly, Defendants filed a Reply
Brief in response to Plaintiff’s Response on September 8, 2015. (ECF No. 25.)
For the following reasons, Defendants’ partial motion to dismiss will be granted in full.
II. BACKGROUND
Plaintiff alleges that, on August 31, 2012, he was “assaulted, beaten, and verbally
abused” by Defendant Anderson and four unknown correction officers. (ECF No. 11 at 3.)
Specifically, Plaintiff alleges that he exchanged his ID card for a basketball in his unit. After

shooting baskets, he was returning to his unit when he was stopped by Corrections Officer
Harrell (“Harrell”). Harrell asked Plaintiff where he got the basketball and instructed Plaintiff to
get rid of it immediately. Plaintiff informed Harrell that it was from his unit, to which Harrell
replied “you’re a fucking liar.” (Id. at 10.) Harrell then took Plaintiff to Defendant Anderson’s
office, convinced that Plaintiff was being insubordinate. Upon entering Defendant Anderson’s
office, Harrell formulated lies, saying “I have a problem with this inmate. He stole a basketball,
disobeyed a direct order, and treated me disrespectfully.” (Id.) At that point, Plaintiff concedes
that he “laughed” out loud, triggering Defendant Anderson’s “aggressive” response. (Id.)
Plaintiff was then “roughed up,” handcuffed, yelled at, and threatened with solitary confinement
before ultimately being sent back to his cell. Plaintiff suffered “abrasions on [his] nose, cheek
and knee…cut [his] inside lower lip…[and his] right shoulder was in excruciating pain.” (Id. at
12.) Because no medical services are offered on the weekends, Plaintiff was “basically denied
medical care” for his injuries. (Id.)
Defendants move to dismiss the following claims pursuant to Federal Rule of Civil
Procedure § 12(b)(6.
III. CLAIMS
Plaintiff brings the following claims against Defendants:
Count One: Violation of the Federal Tort Claims Act;
Count Two: Deliberate Indifference to Serious Medical Needs and Excessive Force under
42 U.S.C. § 1983; and
Count Three: Violation of the Admission and Orientation Inmate Handbook.
IV. STANDARD OF REVIEW
A. Federal Rule of Civil Procedure 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), the court must “accept all factual
allegations as true, construe the complaint in the light most favorable to the plaintiff, and
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determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled
to relief.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (internal quotations
omitted). However, “the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (internal citations omitted). If the “well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct,” the complaint should be dismissed for
failing to show “that the pleader is entitled to relief” under Rule 8(a)(2). Id. at 679.
B. Section 1983 Actions/Bivens
A plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain violations of
his constitutional rights. Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured…
See 42 U.S.C. § 1983.
Thus, to state a claim for relief under § 1983, a plaintiff must allege, first, the violation of
a right secured by the Constitution or laws of the United States, and second, that the alleged
deprivation was committed or caused by a person acting under color of state law. See Harvey v.
Plains Twp. Police Dep’t, 635 F.3d 606, 609 (3d Cir. 2011) (citations omitted); see also West v.
Atkins, 487 U.S. 42, 48 (1988). The federal corollary to § 1983 is Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U.S. 388, 397 (1971), which implies a cause of action for damages against
federal agents who allegedly violated the Constitution. As with § 1983 claims, Bivens actions

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cannot be brought against federal agencies, only federal agents. See F.D.I.C. v. Meyer, 510 U.S.
471, 472 (1994).
IV. DISCUSSION
A. Plaintiff’s FTCA Claims against all Named and Agency Defendants are Dismissed with
Prejudice and are Dismissed without Prejudice as to the United States.
The Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2401(b), 2671-80,
“operates as a limited waiver of the United States’ sovereign immunity.” White-Square v. U.S.
Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010). The FTCA allows claims 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, 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(b)(1).
Here, Defendants argue that the United States is the only proper defendant in an FTCA
action and thus the action must be dismissed as to all other Defendants. The Court agrees. See
F.D.I.C., 510 U.S. at 476 (holding a federal agency cannot be sued in its own name); CNA v.
United States, 535 F.3d 132, 138 (3d Cir. 2008) (noting that the Government is the only proper
defendant in an FTCA case). Because an action cannot be maintained under the FTCA against
any defendant other than the United States, Plaintiff’s Count One is dismissed with prejudice as
to Defendants Anderson, Zickefoose, BOP, DOJ, and FBI. Also, as Defendant United States’
alleged misconduct occurred in New Jersey, New Jersey tort law applies to Plaintiff’s claims
under the FTCA. See Ciccarone v. United States, 486 F.2d 253, 257 (3d Cir. 1973).

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Plaintiff claims, specifically, that BOP employees “assaulted, beaten, verbally abused,
and threatened” him on August 31, 2012. (ECF No. 11 ¶ 18.) Plaintiff also claims that both the
BOP and FBI “refused to investigate” his allegations and denied him assistance repeatedly. (Id.
¶¶ 35-37.) Defendant United States argues that Plaintiff’s FTCA claim must only be proceeded
against it on the state law torts of assault and battery, and not on the claim of failure to
investigate. (See ECF No. 23-1 at 15-16.) There is, indeed, no common law tort for failure to
investigate in New Jersey. The closest common law tort Plaintiff could plead here is negligence
by a federal employee. In order to establish negligence in New Jersey, Plaintiff must show,
among other things that Defendant breached a duty of care owed to Plaintiff. See Jersey Cent.
Power & Light Co. v. Melcar Utility Co., 59 A.2d 561, 571 (N.J. 2013). Here, Plaintiff does not
state in his Complaint what duty to act the federal employees breached when the DOJ and FBI
denied assistance to Plaintiff. (ECF No. 11 ¶ 36.) In fact, there are no facts pled at all aside from
the agencies’ initial denial to open investigations. Because Plaintiff’s claim of negligence rests
on “naked assertions” and mere “labels and conclusions,” Plaintiff’s Count One is dismissed
without prejudice for failure to state a claim upon which relief can be granted as to the claim of
failure to investigate. Ashcroft, 556 U.S.at 678; see also FED. R. CIV. P. §§ 8(a), 12(b)(6); Wilson
v. City of Philadelphia, 415 F. App’x 434, 436 (3d Cir. 2011) (holding that, post-Iqbal, a “more
exacting scrutiny” is required of civil rights complaints).
However, even if Plaintiff had pled facts enough to make out a claim on a failure to
investigate theory, one of the enumerated exceptions to FTCA liability is the discretionary
function exception, which excludes:
Any claim … based upon … the failure to exercise or perform a discretionary
function or duty on the part of a federal agency or an employee of the
Government, whether or not the discretion involved be abused.

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28 U.S.C. § 2680(a).
Here, the FBI’s decisions on what to investigate are discretionary in nature. See United
States v. Acorn Technology Fund LLP, 429 F.3d 438, 445-46 (3d Cir. 2005). Accord WightmanCervantes v. Mueller, 750 F. Supp. 2d 76, 81 (D.C. Cir. 2010) (“Under 28 U.S.C. § 535(a), the
FBI may investigate certain crimes involving a Government official or employee; but it is not
required to investigate every complaint filed.”) (citing Linda R.S. v. Richard D., 410 U.S. 614,
619 (1973)); Piskanin v. Doe, 349 F. App’x 689, 691 (3d Cir. 2009); Keelen v. FBI, 78 F. App’x
389 (5th Cir. 2003); Gant v. F.B.I., 992 F. Supp. 846, 848 (S.D. W.Va. 1998); Agunbiade v.
United States, 893 F. Supp. 160, 163 (E.D.N.Y. 1995) (Ҥ 535(a) provides discretionary rather
than mandatory authority to the Attorney General to investigate crimes by government officials
….”). Because the decision to initiate an investigation is within the FBI’s discretion, Plaintiff’s
“failure to investigate” claim is excepted from the FTCA’s waiver of sovereign immunity. See 28
U.S.C. § 2860(a). Thus, Plaintiff’s Count One is dismissed without prejudice on Plaintiff’s
failure to investigate theory as to the DOJ employee’s actions, and with prejudice as to FBI
employee’s actions. Therefore, the only FTCA claim remaining is that for assault and battery
against Defendant United States.
B. § 1983/Bivens Claims Against all Defendants are Dismissed with Prejudice
Plaintiff asserts that all Defendants are all guilty of violating his rights to be free from
cruel and unusual punishment pursuant to 42 U.S.C. § 1983.
To be liable within the meaning of 42 U.S.C. § 1983, a defendant must be a “person.”
The Supreme Court held in Will v. Michigan Dep’t. of State Police, 491 U.S. 58 (1989), that a
State or an official of a State acting in his or her official capacity is not a “person” within the
meaning of § 1983. A § 1983 claim does not apply to the United States because the United States

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has not consented to be sued under § 1983. See Brown v. Philip Morris, Inc., 250 F.3d 789, 800
(3d Cir. 2001). Bivens is the federal corollary to § 1983. See 403 U.S. 388, 410 (1971). However,
even if Plaintiff’s claims were construed as arising under Bivens, they would still fail against the
United States because “[t]he purpose of Bivens is to deter individual federal officers from
committing constitutional violations.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001)
(emphasis added); see Albert v. Yost, 431 F. App’x 76, 81 (3d Cir. 2001) (“A Bivens claim can
be maintained only against individual federal officers, not against a federal entity.”).
Here, neither the United States nor its agencies has waived its sovereign immunity for
claims brought under either § 1983 or Bivens. Therefore, because the United States, the DOJ,
BOP, and FBI are not “persons” under either § 1983 or Bivens, and because the United States
and its agencies have not waived sovereign immunity, Plaintiff’s Count Two is dismissed with
prejudice as to Defendants United States, DOJ, BOP, and FBI. See Ferrer v. M.C.C.I., 2013 WL
2455963, at *3 (D.N.J. June 5, 2013); see also Murhpy-Barber v. Murray, 91 F.3d 132 (4th Cir.
1996).
Defendants also urge the Court to dismiss Plaintiff’s Bivens claim as to the named
Defendants, Zickefoose and Anderson, because Plaintiff has failed to effect service on either
federal employee. (ECF No. 23-1 at 19.) There is indeed no evidence on the docket that either
Defendant Zickefoose or Defendant Anderson has been served with a summons. As to Defendant
Zickefoose, this is largely immaterial as Plaintiff’s Complaint alleges no personal involvement
on the part of Zickefoose, and appears to name her only because of her supervisory capacity as
Warden of the prison. It is well-settled that Bivens liability cannot be based solely on a theory of
respondeat superior. See Ashcroft, 556 U.S. at 676. Indeed, a supervisor may be personally liable
only “if he or she participated in violating the plaintiff’s rights, directed others to violate them, or

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… had knowledge of and acquiesced” to subordinates’ behavior. A.M. ex rel J.M.K. v. Luzerne
Cnty Junenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004). Here, there is no suggestion that
Defendant Zickefoose had any personal involvement in or actual knowledge of Plaintiff’s
treatment. Therefore, Plaintiff’s Bivens claim against Defendant Zickefoose is dismissed without
prejudice.
Lastly, Plaintiff does plead facts amounting to personal involvement and actual
knowledge on the part of Defendant Anderson. Defendants argue that Plaintiff’s Count Two
should be dismissed as to Defendant Anderson because service on Defendant Anderson was
never perfected (ECF No. 23-1 at 21-23.) Indeed, the docket is devoid of any evidence that
service was perfected on Defendant Anderson, nor has Plaintiff asked the Court for an extension
of time. Federal Rule of Civil Procedure 4(i)(2)(B) provides that service upon
an officer or employee of the United States sued in an individual capacity for acts
or omissions occurring in connection with the performance of duties on behalf of
the United States ... is effected by serving the United States in the manner
prescribed by Rule 4(i)(1) and by serving the officer or employee in the manner
prescribed by Rule 4(e)….
FED.R.CIV.P. 4(i)(2)(B).
Rule 4(e) requires serving an individual within the United States personally, by leaving a
copy at the person’s dwelling, or by delivering a copy to an authorized agent. See FED.R.CIV.P.
4(e)(2). If proper service is not made within 120 days of filing the complaint, the action is
subject to dismissal, without prejudice, or the court may “direct that service be effected within a
specified time....” FED.R.CIV.P. 4(m).
Here, it has been far longer than 120 days since Plaintiff filed his signed complaint. Not
to be deterred, Plaintiff argued to the Court that the service requirement should be waived
because the individual Defendants have notice of the actions against them. (See ECF No. 20.)

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Notice, however, is not a substitute for service. See Grand Entertainment Group, Ltd. v. Star
Media Sales, Inc., 988 F.2d 476, 492 (3d Cir. 1993); see also Touray v. Middlesex Cnty, 139 F.
App’x 428, 430 (3d Cir. 2005) (noting that the party asserting the validity of service bears the
burden of proof on that issue). Therefore, the Court dismisses Plaintiff’s Count Two as to
Defendant Anderson without prejudice for failure to either perfect service of process or ask the
Court for an extension of time.
C. Count Three is Dismissed with Prejudice as to All Defendants
Plaintiff’s third claim, that Defendants violated the Inmate Handbook, shall be dismissed
with prejudice for failure to state a claim. There is no evidence that the Inmate Handbook at issue
here creates a private cause of action. Indeed, violating an agency’s internal policies typically
does not equate to a constitutional violation or create such a private right. See Mercy Catholic
Med. Ctr. V. Thompson, 380 F.3d 142, 154 (3d Cir. 2004); Jae v. Stickman, 2013 WL 4479009,
at *3 (W.D.Pa. Aug. 19, 2013); Whitcraft v. Township of Cherry Hill, 974 F.Supp. 392, 398
(D.N.J.1996) (citing Daniels v. Williams, 474 U.S. 327, 332–33 (1986)); Rousseau v. City of
Phila., 589 F. Supp. 961, 970-71 (E.D.Pa. 1984). Therefore, because Plaintiff submits no
evidence to rebut the presumption that violating an agency’s internal policies does not create a
private cause of action, Plaintiff’s Count Three is dismissed with prejudice as to all Defendants.

VI. CONCLUSION
For the foregoing reasons, Defendants’ motion is granted. Plaintiff’s Count One is
dismissed with prejudice as to Defendants BOP, DOJ, FBI, Zickefoose and Anderson, and is
proceeded against Defendant United States only on the state law tort claim of assault and battery.
Plaintiff’s Count Two is dismissed with prejudice as to Defendants United States, DOJ, BOP,

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and FBI, and without prejudice as to Defendants Zickefoose and Anderson. Plaintiff’s Count
Three is dismissed with prejudice as to all Defendants. Thus, the only remaining claim is that of
assault and battery, brought against Defendant United States pursuant to the FTCA and not
raised in the instant motion.

An appropriate order will follow.

DATED: March 31, 2016
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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