CARTER v. UNITED STATES OF AMERICA et al

Filing 4

MEMORANDUM OPINION AND ORDER: ORDERED that the Clerk shall reopen this matter; and it is further ORDERED that Plaintiff's IFP application is denied without prejudice; and it is further ORDERED that the Clerk shall administratively termin ate this matter; and it is further ORDERED that Plaintiff may have this matter reopened if, within thirty days of the date of the entry of this Order, he either pre-pays his $400.00 filing fee or submits his certified six-month prison account statement. Signed by Judge Renee Marie Bumb on 9/5/2014. (tf, n.m.)

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

KEVIN CARTER,
Plaintiff,
v.
UNITED STATES
OF AMERICA, et al.,
Defendants.

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Civil Action No. 14-4741 (RMB)
MEMORANDUM OPINION AND ORDER

BUMB, District Judge:
On July 31, 2014, the Clerk docketed Plaintiff’s civil
complaint (“Complaint”).

See Docket Entry No. 1.

The Complaint

arrived unaccompanied by the filing fee or Plaintiff’s
application to prosecute this matter in forma pauperis.

See id.

On August 4, 2014, noting that the Clerk would not file a
civil complaint unless the person pays the entire filing fee in
advance or applies for and is granted in forma pauperis status
pursuant to 28 U.S.C. § 1915, this Court denied Plaintiff in
forma pauperis status without prejudice.

See Docket Entry No. 2,

at 1-3 (citing 28 U.S.C. § 1915(a)(2) and Local Civil R. 5.1(f),
and explaining that, “[i]f a prisoner seeks permission to file a
civil rights complaint in forma pauperis, the Prison Litigation
Reform Act . . . , Pub. L. No. 104-134, §§ 801-810, 110 Stat.

1321-66 to 1321-77 (April 26, 1996), requires the prisoner to
file an affidavit of poverty and, in addition, a certified prison
account statement for the six-month period immediately preceding
the filing of the complaint”) (emphasis supplied).1
On August 27, 2014, Plaintiff submitted his affidavit of
poverty.

See Docket Entry no. 3, at 1-3.

However, instead of

his certified prison account statement, he submitted his record
of deposits from October 2, 2013, to August 6, 2014.
4.

See id. at

Such record of deposits does not comply with § 1915(a)(2)

requirement and, in addition, raises substantial concerns as to
Plaintiff’s suitability to proceed in this matter as a pauper.
Specifically, the record shows that Plaintiff has had
monthly employment wages varying from $176 to $296 and, in
addition, monthly wire transfers varying from $25 to $175, for a
total monthly income varying from $217 to $404, which has
yielded, during the ten-month period from October 2, 2013, to
August 6, 2014, a gross total of $1,587.

See id.

The grant of in forma pauperis status is trusted to the good
faith discretion of the federal judiciary.

1

Reflecting on the

The entire fee to be paid in a civil suit is $400. That
fee includes a filing fee of $350 plus an administrative fee of
$50, for a total of $400. A prisoner who is granted in forma
pauperis status will, instead, be assessed a filing fee of $350
and will not be responsible for the $50 administrative fee. If
in forma pauperis is denied, the prisoner must pay the full $400,
including the $350 filing fee and the $50 administrative fee,
before the complaint will be filed.
2

same, the Supreme Court clarified that one need not be absolutely
destitute to qualify for in forma pauperis status.

See Adkins v.

E. I. DuPont De Nemours & Co., Inc., 335 U.S. 331.2

Here,

Plaintiff “is an inmate whose living expenses, including housing,
food, clothing, medications, etc. are provided by the prison
authorities and, thus, it does not appear that his minimal needs
would be left unsatisfied unless he utilizes his funds.”

Capalbo

v. Hollingsworth, 2013 U.S. Dist. LEXIS 178255, at *7 (D.N.J.
Dec. 19, 2013).

Correcpondingly, it does not appear that

prepayment of the filing fee, especially if that payment is about
one-fourth of his ten-month gross total, would be too burdensome
for Plaintiff within the meaning of the Adkins test.

However,

recognizing that this Court has not been presented with
Plaintiff’s full account statement (and mindful of the Court of

2

In Adkins, the plaintiff filed a timely motion in district
court requesting leave to appeal the district court’s decision
and stated, in her affidavit, that she was a widow of 74 years of
age, that the estimated cost of her record on appeal was $ 4,000,
that all she owned was a house inherited from her husband which
had been appraised at a value of $ 3,450, and her only source of
income was a small rent from the parts of her home without which
income she would not be able to purchase even the barest
necessities of life, such as food. The district and appellate
courts refused to grant the plaintiff in forma pauperis status
because she had not mortgaged her home to raise money toward her
litigation, ruling that the plaintiff had to contribute her last
dollar to the cost of litigating her suit. The Supreme Court
reversed and ruled that a plaintiff need not be “absolutely
destitute” before allowing to proceed in forma pauperis; rather
the plaintiff has to establish to the satisfaction of the
district court’s good faith discretion that the payment of the
fee would be unduly burdensome in light of the minimal
necessities of life unique to that particular plaintiff.
3

Appeals’ observation that “[i]nmates must pay for access to
additional products and services, unless they qualify as indigent
[e.g.,] inmates must purchase items such as soap, deodorant,
toothpaste, and over-the-counter medications [and they] are also
responsible for medical co-pays and the cost of access to legal
services”), the Court will allow Plaintiff an opportunity to
submit his certified prison account statement, as required by §
1915(a)(2), in order to demonstrate that he qualifies as a pauper
within the meaning of Adkins.

Thus, this Court will again deny

Plaintiff in forma pauperis status without prejudice and will
reserve its final determination until Plaintiff submits his
certified prison account statement.
In conjunction with the foregoing, the Court will also allow
Plaintiff an opportunity to submit an amended pleading clarifying
the ambiguities and curing the deficiencies of his Complaint.3
Here, Plaintiff asserted that, on January 1, 2012, when he was
confined at the FCI Fairton (“Fairton”), a certain inmate
utilized Fairton’s microwave oven to heat up a mix of coffee, oil
and certain chemicals, and then: (a) splashed Plaintiff’s face
and shoulders with that mixture, injuring Plaintiff’s skin and

3

This Court’s conclusive screening of Plaintiff’s claims
is reserved until he duly prepays his filing fee or properly
obtains in forma pauperis status. See Izquierdo v. State, 2013
U.S. App. LEXIS 15533, at *2-3 and n.1 (3d Cir. July 25, 2013)
(the court’s final determination as to a litigant’s claims is
inappropriate until and unless the filing fee/in forma pauperis
issue has been conclusively resolved).
4

eyes; and (b) “struck [P]laintiff in the head with a lock in a
sock.”

Docket Entry No. 1.

Plaintiff named, as Defendants in this matter, the
following: (a) the United States of America; (b) the person who
served as the Fairton warden six years prior to the alleged
incident; (c) the current warden of Fairton; (d) the regional
director of the Bureau of Prisons (“BOP”) responsible for the
oversight of federal correctional facilities located within the
North-Eastern part of the United States; and (e) unidentified
regional directors of the BOP overseeing federal correctional
facilities located within other regions of the United States.
See id. at 2-3.

Plaintiff’s allegations against all natural

persons made it clear that his claims against them were based
solely and exclusively on these Defendants’ current/past
supervisory positions.

See id.

The Complaint, albeit exceedingly lengthy, arrived undated,
see id. at 1 and 43, but the content of the exhibits Plaintiff
included in his Complaint indicates that he executed it after May
15, 2014.4

See id. at 27 (an exhibit executed on that date).

Plaintiff’s allegations are three-fold.
Entry No. 1.

See, generally, Docket

On the one hand, he raised challenges against the

United States, pursuant to the Federal Tort Claims Act (“FTCA”),

4

The Clerk received the Complaint on July 29, 2014.
Docket Entry No. 1.
5

See

28 U.S.C. § 1346(b).

On the other hand, he raised Bivens v. Six

Unknown Named Agents of the Fed. Bur. of Narcotics, 403 U.S. 388
(1971), claims against those Defendants who are natural persons.
One of these Bivens claims asserted failure to protect Plaintiff
from the above-mentioned assault with the heated mixture and “a
lock in a sock,” while another Bivens claim conceded that, after
the assault, Plaintiff was availed to “a” medical treatment for
his eyes and skin, but alleged that he was not afforded the best
medical treatment among the recommended options.

See, generally,

Docket Entry No. 1.
With regard to his FTCA claim, Plaintiff alleged that, on
October 24, 2013, he had filed a claim with the Regional Office
of the BOP and had that claim denied on January 24, 2014.

See

id. at 4-5, 35-36 (referring to a certain “exhibit D,” which is,
allegedly, was the Regional Office’s response).5

In contrast,

there is no statement in the Complaint suggesting, even vaguely,
that Plaintiff had exhausted his Bivens challenges.6

See,

5

If, in fact, the Regional Office actually responded to
Plaintiff’s FTCA claim, he has exhausted that claim. See 28
C.F.R. §§ 14.2(a), 14.9(a). The Court’s record, however,
contains no “exhibit D,” and the Clerk’s re-review of the record
(conducted upon this Court’s express directive to perform such a
search) has conclusively established that no “exhibit D” was ever
received from Plaintiff. Thus, Plaintiff’s references to the
not-submitted “exhibit D” have rendered Plaintiff’s allegation
(that he duly exhausted his FTCA claim) ambiguous.
6

Exhaustion for the Bivens purposes differs from that
required under the FTCA, since a Bivens exhaustion requires
completion of the BOP’s Administrative Remedy Program. The BOP
6

generally, Docket Entry No. 1.
deficient.

Thus, both Bivens claims appear

See Ahmed v. Dragovich, 297 F.3d 201, 209 & n.9 (3d

Cir. 2002) (exhaustion must be completed before suit is filed).
In addition to the aforesaid exhaustion concerns, either
both or one of Plaintiff’s Bivens claims appear untimely, and his
FTCA claim also raises timeliness-based jurisdictional concerns.
For the purposes of his FTCA claim, this Court cannot assume
jurisdiction unless the final agency disposition was within six
months of Plaintiff’s presentment of his claim to this Court.
See 28 U.S.C. § 2675(a); see also White-Squire v. U.S. Postal
Serv., 592 F.3d 453, 457 (3d Cir. 2010).

Here, Plaintiff

maintains (relying on the alleged “exhibit D”) that his claim was
denied on January 24, 2014.

Hence, unless it is established that

Administrative Remedy Program is a multi-tier process that is
available to inmates confined in institutions operated by the BOP
for “review of an issue which relates to any aspect of their
confinement.” 28 C.F.R. § 542.10. An inmate must initially
attempt to informally resolve the issue with institutional staff.
See 28 C.F.R. § 542.13(a). If informal resolution fails or is
waived, an inmate may submit a BP-9 Request to “the institution
staff member designated to receive such Requests (ordinarily a
correctional counsel [representing the warden])” within 20 days
of the date on which the basis for the Request occurred, or
within any extension permitted. 28 C.F.R. § 542.14. An inmate
who is dissatisfied with the warden's response to his BP-9
Request may submit a BP-10 Appeal to the Regional Director of the
BOP within 20 days of the date the warden signed the response.
See 28 C.F.R. § 542.15(a). The inmate may appeal to the Central
Office on a BP-11 form within 30 days of the day the Regional
Director signed the response. See id. Appeal to the Central
Office is the final administrative appeal. See id. If responses
are not received by the inmate within the time allotted for
reply, “the inmate may consider the absence of a response to be a
denial at that level.” 28 C.F.R. § 542.18.
7

his Complaint was submitted to his prison officials for mailing
to this Court on July 23, 2014, see Houston v. Lack, 487 U.S.
266, 276 (1988) (prisoners’ mailbox rule), his FTCA claim is
untimely, and this Court is without jurisdiction to entertain it.
Additionally, Plaintiff’s Bivens claims based on the events
that took place more than two years prior to the date of his
submission of the Complaint to his prison officials for mailing
to this Court would be untimely (unless he establishes a valid
basis for equitable tolling).

Federal courts look to state law

to determine the limitations period for § 1983 and Bivens
actions.

See Wallace v. Kato, 549 U.S. 384, 387-88 (2007); see

also Owens v. Okure, 488 U.S. 235, 250 (1989); Wilson v. Garcia,
471 U.S. 261, 280 (1985); O’Connor v. City of Newark, 440 F.3d
125, 126-27 (3d Cir. 2006) (New Jersey personal injury statute of
limitations applies to the claims raised under § 1983 or under
Bivens); Little v. Lycoming County, 912 F. Supp. 809, 814 (M.D.
Pa. 1996) (same); accord Houston v. Thomas, 2014 U.S. Dist. LEXIS
111294, at *2 (M.D. Pa. Aug. 12, 2014) (citing Roman v. Townsend,
48 F. Supp. 2d 100, 104 (D.P.R. 1999), for the observation that
“state statutes of limitations should be borrowed for suits under
Bivens”).

Accordingly, New Jersey’s two-year limitations period

for personal injury actions, N.J. Stat. Ann., § 2A.14-2, governs
Plaintiff”s claim.

See Montgomery v. DeSimone, 159 F.3d 120,

126, n.4 (3d Cir. 1998); Cito v. Bridgewater Twp. Police Dep’t,

8

892 F.2d 23, 25 (3d Cir. 1989) (under § 2A:14-2, an action for an
injury to the person caused by a wrongful act, neglect, or
default must be commenced within two years of accrual of the
cause of action).7
Here, Plaintiff’s Bivens claims based on the alleged assault
accrued on January 1, 2012, that is, more than two years prior to
his submission of the Complaint.

Therefore, these allegations

appear facially untimely; moreover, his allegations based on the

7

Although the statute of limitations is an affirmative
defense that the defendants generally must plead and prove, see
Bethel v. Jendoco Constr. Corp., 570 F.2d 1168, 1174 (3d Cir.
1978), and a plaintiff is not required to plead that the claim
has been brought within the statute of limitations, the Supreme
Court observed, in Jones v. Bock, that if the allegations of a
complaint, “show that relief is barred by the applicable statute
of limitations, the complaint is subject to dismissal for failure
to state a claim.” 549 U.S. 199, 215 (2007); see also Ray v.
Kertes, 285 F.3d 287, 297 (3d Cir. 2002). Moreover, in the event
a litigant aims to establish a basis for tolling, it is the
litigant’s burden to make the requisite showing. New Jersey law
permits equitable tolling where “the complainant has been induced
or tricked by his adversary’s misconduct into allowing the filing
deadline to pass,” or where a plaintiff has “in some
extraordinary way” been prevented from asserting his rights, or
where a plaintiff has timely asserted his rights mistakenly by
either defectively pleading or in the wrong forum. See Freeman
v. State, 347 N.J. Super. 11, 31 (N.J. Super. Ct. App. Div. 2002)
(citations omitted). “However, absent a showing of intentional
inducement or trickery by a defendant, the doctrine of equitable
tolling should be applied sparingly and only in the rare
situation where it is demanded by sound legal principles as well
as the interests of justice.” Id. Here, Plaintiff’s exhibits
incorporated into his Complaint show that he has been constantly
engaged in numerous written exchanges with many individuals
during the time when his period of limitations kept running.
Thus, there appears to be no basis to conclude that he was
prevented from asserting his rights “in some extraordinary way.”
9

alleged denial of best medical treatment among the options
recommended appear analogously untimely.8
In addition to raising exhaustion and timeliness concerns,
Plaintiff’s Bivens allegations are deficient for being based
solely on the natural Defendants’ supervisory positions (some of
which were held many years prior to the alleged events), since
such allegations establish that these Defendants had no personal
involvement in the alleged wrongs, i.e., either in the asserted
failure to protect claim or in the asserted denial of medical
care claim.
It has been long established that claims based solely on the
theory of respondeat superior are facially deficient.

See

Ashcroft v. Iqbal, 556 U.S. 662, 676-77 (2009); see also Colburn
v. Upper Darby Twp., 946 F.2d 1017, 1027 (3d Cir. 1991); accord
Solan v. Ranck, 326 F. App’x 97, 100-01 (3d Cir. 2009) (“A
defendant in a civil rights action must have personal involvement
in the alleged wrongs; liability cannot be predicated solely on

8

Since the Clerk received the Complaint on July 29, 2014,
and contains an exhibit dated May 15, 2014, Plaintiff could not
have submitted his Complaint for mailing to this Court prior to
May 16, 2014, or after July 28, 2014. His period of limitations
as to the assault (that allegedly took place on January 1, 2012)
expired on December 31, 2013, i.e., five and a half months prior
to May 15, 2014, thus rendering that claim facially untimely.
Analogously, Plaintiff’s claims challenging the medical treatment
he was provided are necessarily untimely as to, the very least,
the treatments that might have been denied prior to May 15, 2014.
10

the operation of respondeat superior”), cert. denied, 558 U.S.
884 (2009).9
In addition to the foregoing, Plaintiff’s allegations appear
substantively meritless.

Plaintiff’s FTCA claim that Fairton

officials were negligent in failing to protect him from the
alleged assault in the hands of another inmate is barred by the
“discretionary function” exception to the FTCA’s waiver of
sovereign immunity.

9

Plaintiff’s references to: (a) prison regulations aiming
to eliminate microwave ovens in prison facilities; and/or to (b)
the wardens’ use of taxpayers’ funds for purchases of microwave
ovens, cannot cure the core deficiency of Plaintiff’s claims
against Defendants named in their supervisory capacities. This
is so because a violation of a prison regulation cannot amount to
a wrong of constitutional magnitude within the meaning of Bivens.
See, e.g., Ware v. Jackson County, 150 F.3d 873, 882 (8th Cir.
1998) (citing Newman v. Holmes, 122 F.3d 650, 653 (8th Cir.
1997), for the observation that “[v]iolation of an internal
prison regulation does not by itself give rise to an Eighth
Amendment claim,” and Falls v. Nesbitt, 966 F.2d 375, 379-80 (8th
Cir. 1992), which rejected the argument that a prison official’s
violation of an internal regulation is tantamount to a violation
of the Eighth Amendment); Broadhead v. Canty, 2013 U.S. Dist.
LEXIS 136367, at *11 (M.D. Ala. Sept. 24, 2013) (citing Magluta
v. Samples, 375 1269, 1279 n.7 (11th Cir. 2004) (“procedural
requirements set out in an administrative regulation are not
themselves constitutional mandates”); Myers v. Klevenhagen, 97
F.3d 91, 94 (5th Cir. 1996) (“Failure to follow prison rules or
regulations do not, without more, give rise to a constitutional
violation”); Caruth v. Pinkney, 683 F.2d 1044, 1052 (7th Cir.
1982) (“The failure of correctional officials to comply with
directives of a prison regulation ‘does not amount to a violation
of constitutional magnitude’”) (brackets omitted). Analogously,
Plaintiff is without standing to raise challenges based on the
alleged misuse of taxpayers’ funds. See Thomas v. Johnson, 2014
U.S. Dist. LEXIS 74396, at *26-27 (D.N.J. May 30, 2014) (citing
Green v. Corzine, 2011 U.S. Dist. LEXIS 17173, at * 4 (D.N.J.
Feb. 22, 2011).
11

While the BOP’s conduct at issue is governed by a
federal statute requiring the BOP to provide for the
“protection” and “safekeeping” of inmates, see 18
U.S.C. § 4042(a)(2), the statute leaves the
implementation of these duties to BOP officials’
discretion. See Mitchell v. United States, 225 F.3d
361, 363 (3d Cir. 2000); Cohen v. United States, 151
F.3d 1338, 1342 (11th Cir. 1998) (explaining that “even
if § 4042 imposes on the BOP a general duty of care to
safeguard prisoners, the BOP retains sufficient
discretion in the means it may use to fulfill that duty
to trigger the discretionary function exception”).
Furthermore, a judgment as to the best way to protect
prisoners from attack by others “is of the kind that
the discretionary function exception was designed to
shield.” Mitchell, 225 F.3d at 363; see also Whitley
v. Albers, 475 U.S. 312, 321-22 (1986) (prison
officials have discretionary power over the safety of
the institutions they operate). Indeed, courts have
regularly held that federal prisoners’ FTCA claims for
injuries caused by fellow inmates are barred by the
discretionary function exception. See Cohen, 151 F.3d
at 1340-45; Calderon v. United States, 123 F.3d 947,
950-51 (7th Cir. 1997). Accordingly, the [inmate’s]
FTCA claim alleging negligence in failing to protect
him [is barred].
Thrower, 528 F. App’x 108, at *6-8.
Plaintiff’s failure-to-protect claim raised under Bivens
also appears substantively deficient.

While it is true that

“[b]eing violently assaulted in prison is . . . not part of the
penalty that criminal offenders pay for their offenses against
society,” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quotation
marks and citation omitted), “not ‘every injury suffered by one
prisoner at the hands of another translates into constitutional
liability for prison officials responsible for the victim’s
safety.”

Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012)

(quoting Farmer, 511 U.S. at 834).
12

“To state a claim for damages

against a prison official for failure to protect from inmate
violence, an inmate must plead facts that show (1) he was
incarcerated under conditions posing a substantial risk of
serious harm, (2) the official was deliberately indifferent to
that substantial risk to his health and safety, and (3) the
official’s deliberate indifference caused him harm.”

Id. (citing

Farmer, 511 U.S. at 834, and Hamilton v. Leavy, 117 F.3d 742, 746
(3d Cir. 1997)).
“Deliberate indifference” in this context is a
subjective standard: “the prison official-defendant
must actually have known or been aware of the excessive
risk to inmate safety.” Beers-Capitol [v. Whetzel,]
256 F.3d [120,] 125 [(3d Cir. 2001)]. It is not
sufficient that the official should have known of the
risk. Id. at 133. A plaintiff [must] prove an
official’s actual knowledge of a substantial risk to
his safety . . . .
Bistrian, 696 F.3d at 367-69 (“[plaintiff] plausibly alleges that
certain prison officials actually knew that he faced an excessive
risk of harm by being placed in the SHU recreation yard [with the
inmates who assaulted him] because he repeatedly advised (both
verbally and in writing) [the prison officials] . . . of the
multiple threats [those particular inmates made to him]”); see
also Miller v. Ricci, 2011 U.S. Dist. LEXIS 46009, at *28 (D.N.J.
Apr. 28, 2011) (“To plead an Eighth Amendment failure to protect
claim a plaintiff must plead facts raising a plausible inference
of . . . the defendants’ deliberate indifference to that
particular risk of harm”).

13

Here, the Complaint merely alleges that the BOP officials,
nation-wide, knew or should have known that some inmates, also
nation-wide, have sometimes used microwave ovens to heat up
liquids in order to assault other inmates with those hot liquids.
Such allegations are insufficient to show deliberate indifference
since nothing in the Complaint indicates that Fairton officials
were aware of the risk of harm to Plaintiff in the hands of the
particular inmate who assaulted Plaintiff or of that inmate’s
plans to assault Plaintiff by using a mix of liquids heated in a
microwave oven.10
Finally, Plaintiff’s allegations based on the alleged denial
of the best medical care option among those recommended also
appear deficient.

The Eighth Amendment’s prohibition against

cruel and unusual punishment requires prison officials to provide
basic medical treatment to those incarcerated and, thus, dictates
that deliberate indifference to serious medical needs of
prisoners constitutes the unnecessary and wanton infliction

10

Plaintiff’s statement that his offender also hit him with
“a lock in a sock” exemplifies the deficiency of Plaintiff’s
position. While the inmates, nation-wide, are provided with
lockers and locks, and furnished garments and underwear,
including socks, the prison officials are not expected to take
away all inmates’ lockers and locks. See Shrader v. White, 761
F.2d 975, 982 (4th Cir. 1985) (“the stark reality of prison life
is that virtually anything can be employed as a weapon, e.g., a
pencil can become a dagger; an electric cord a garrote, a lock
inside a sock a bludgeon; human excretion a poison. Pool cues,
brooms, and chairs have all been used as weapons at one time or
another”).
14

proscribed by the Eighth Amendment.
U.S. 97, 103-04 (1976).

See Estelle v. Gamble, 429

Thus, to establish an Eighth Amendment

violation, a plaintiff must demonstrate: (1) a serious medical
need; and (2) that the defendants were deliberately indifferent
to that need.

See Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.

1999); see also Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir.
2004); Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d
326, 346 (3d Cir. 1987); West v. Keve, 571 F.2d 158, 161 (3d Cir.
1979).

“A prison official acts with deliberate indifference to

an inmate’s serious medical needs when ‘he knows of and
disregards an excessive risk to inmate health and safety; the
official must be both aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists.’”
Natale v. Camden Cty Corr. Facility, 318 F.3d 575, 582 (3d Cir.
2003) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994));
accord Ordonez v. Yost, 289 F. App’x 553, 555 (3d Cir. 2008)
(“deliberate indifference is proven if necessary medical
treatment is delayed for non-medical reasons”) (emphasis
supplied); Durmer v. O’Carroll, 991 F.2d 64, 68 (3d Cir.1993)
(facts plausibly showing a denial of prescribed medical treatment
or a denial of reasonable requests for treatment that results in
suffering or risk of injury state a viable claim).
In contrast, allegations as to inconsistencies/differences
in medical diagnoses, short delays unaccompanied by arbitrary or

15

unduly burdensome bureaucratic procedures, refusals to summon the
medical specialist of the inmate’s choice, perform tests or
procedures that the inmate desires, or to explain to the inmate
the reason for medical action or inaction, or refusals to provide
non-mandatory care that the inmate qualifies as “best” do not
amount to cruel and unusual punishment.

See Maqbool, 2012 U.S.

Dist. LEXIS 81895; accord Taylor v. Visinsky, 422 F. App’x 76, 78
(3d Cir. 2011) (allegations that the inmate was provided with
medical care, but the care was “inadequate” fails to state a
cognizable claim); Pilkey v. Lappin, 2006 U.S. Dist. LEXIS 44418,
at *37 (D.N.J. June 26, 2006) (“while Plaintiff appears to be of
opinion that he was sentenced to imprisonment so the BOP would
keep performing full medical examinations of Plaintiff ‘from head
to toe’ and to have a doctor at Plaintiff's disposal around the
clock in order to detect every current and future Plaintiff's
medical need and provide Plaintiff with every treatment Plaintiff
may wish for or fancy, the Eighth Amendment does not envision
such a right”) (citing Hudson v. McMillian, 503 U.S. 1, 9 (1992),
for the observation that “[s]ociety does not expect that
prisoners will have unqualified access to health care”).
Here, Plaintiff’s Complaint does not indicate that he was
denied medical care for his injuries.

Rather, the Complaint

suggests that a certain medical practitioner recommended, rather
than prescribed, certain treatments, and those treatments have

16

been either delayed or denied, or medically substituted for
alternative treatments.

However, such allegations suggest, at

most, negligence rather than deliberate indifference and, thus,
appear not actionable.
In sum, Plaintiff’s FTCA claim raises exhaustion and
timeliness concerns and, in addition, appears to be barred
substantively, while Plaintiff’s Bivens claims are raised against
the individuals having no personal involvement in the alleged
events, and those allegations appear untimely, unexhausted and
substantively meritless.

Hence, in the event Plaintiff elects to

litigate this matter, he will be directed to submit, together
with his certified account statement, his amended pleading
detailing the exact facts of his claims and clarifying both the
timeliness and the exhaustion aspect of each line of his
challenges.11
IT IS, therefore, on this 5th day of September 2014,
ORDERED that the Clerk shall reopen this matter by making a
new and separate entry on the docket reading, “CIVIL CASE
REOPENED”; and it is further
ORDERED that Plaintiff’s application to proceed in this
matter in forma pauperis is denied without prejudice; and it is
further

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In addition, Plaintiff will be directed to identify the
appropriate defendants for the purposes of his Bivens challenges.
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ORDERED that the Clerk shall administratively terminate this
matter by making a new and separate entry on the docket reading
“CIVIL CASE TERMINATED,” without filing the Complaint and without
assessing a filing fee; and it is further
ORDERED that administrative termination is not a final
dismissal on the merits, see Papotto v. Hartford Life & Accident
Ins. Co., 731 F.3d 265 (3d Cir. 2013) (“administrative closings
are a practical tool used by courts to prune overgrown dockets
and are particularly useful in circumstances in which a case,
though not dead, [might] remain moribund”); and it is further
ORDERED that Plaintiff may have this matter reopened if,
within thirty days of the date of the entry of this Order, he
either pre-pays his $400.00 filing fee or submits his certified
six-month prison account statement; and it is further
ORDERED that, in the event Plaintiff pre-pays his filing fee
or submits his certified prison account statement, he shall
accompany his payment/submission by an amended pleading detailing
the timeliness, exhaustion and factual predicate of each of his
claims in light of the guidance provided to him in this
Memorandum Opinion and Order, and naming appropriate defendants;
and it is further
ORDERED that no statement in this Memorandum Opinion and
Order shall be construed as withdrawal of this Court’s
jurisdiction over this matter.

This Court expressly retains its
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jurisdiction over this matter for the period of ninety days,
subject to extension, if the future developments in this matter
warrant so; and it is further
ORDERED that, in the event Plaintiff fails to pre-pay his
filing fee and does not submit his certified prison account
statement, or if he fails to submit his amended pleading in
accordance with the terms of this Memorandum Opinion and Order,
Plaintiff’s claims will be deemed withdrawn without prejudice to
being raised in a new and separate matter, and this matter will
be deemed conclusively closed without further notice to
Plaintiff, with this Court’s jurisdiction over this matter deemed
withdrawn; and it is finally
ORDERED that the Clerk shall serve this Memorandum Opinion
and Order upon Plaintiff by certified mail, return receipt
requested, and shall enclose in said mailing a blank civil
complaint form.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

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