GALLOWAY v. UNITED STATES OF AMERICA

Filing 44

OPINION. Signed by Judge Noel L. Hillman on 11/8/2017. (tf, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RASHFORD E. GALLOWAY,
Plaintiff,
v.

1:14-cv-06372-NLH-AMD
OPINION

UNITED STATES OF AMERICA,
Defendant.

APPEARANCES:
RASHFORD E. GALLOWAY
P.O. BOX 12
OVER RIVER ORANGE
SIGN POST OFFICE
ST. JAMES, JA WEST INDIES 1
Appearing pro se
KRISTIN LYNN VASSALLO
OFFICE OF THE U.S. ATTORNEY
DISTRICT OF NEW JERSEY
970 BROAD STREET
NEWARK, NJ 07102
On behalf of Defendant

1

On October 5, 2017, the Court issued an Order to Show Cause to
Plaintiff regarding his duty to provide the Court with his
updated address because a recent notice from the Clerk’s office
had been returned as undeliverable. (Docket No. 42.) Plaintiff
timely complied with the Court’s Order, and noted that issues
with mail delivery in Jamaica were the cause of the returned
mail. Plaintiff also supplied a different address that
Plaintiff relates may result in more reliable mail delivery.
(Docket No. 43.)

HILLMAN, District Judge
This matter concerns claims by Plaintiff against the
Federal Bureau of Prisons that his assignment to a third-floor
cell while he was incarcerated at FCI Fort Dix aggravated his
back injury, causing him further injury. 2

For the reasons

expressed below, Defendant’s motion will be granted. 3
BACKGROUND
Plaintiff, Rashford Galloway, arrived at FCI Fort Dix in

2

Also pending is Defendant’s motion to seal Plaintiff’s medical
records submitted in relation to Defendant’s motion. The
purpose of sealing Plaintiff’s medical records is to protect his
privacy. See Local Civil Rule 5.2 (“[C]aution must be exercised
when filing documents that contain . . . Medical records,
treatment, and diagnoses . . . .”). Plaintiff, however, has
opposed Defendant’s motion, and it is unclear to the Court
whether Plaintiff truly wishes his medical records to be
accessible to the public, or is simply operating under a
misunderstanding that the Plaintiff’s medical records will be
considered by the Court in resolving the summary judgment motion
only if they are unsealed. To the contrary, sealing protects
Plaintiff’s medical records from public access not from the
Court and they have been considered in resolving these motions.
Consequently, the Court will grant Defendant’s motion to seal in
a separate order, but the Court will provide Plaintiff with 60
days to inform the Court as to whether he wishes his medical
records unsealed and therefore publically available.
3

As discussed below, Plaintiff’s complaint can be fairly
construed to assert an Eighth Amendment claim for cruel and
unusual punishment. Defendant viewed Plaintiff’s complaint to
only assert a claim for negligence, but recognizing that
Plaintiff’s opposition brief repeatedly claims that Defendant’s
actions also constituted cruel and unusual punishment,
Defendant’s reply addresses why such a claim fails as a matter
of law. The Court considers this issue fully briefed, and, in
addition to Plaintiff’s negligence claim, will also assess the
viability of Plaintiff’s Eighth Amendment claim.
2

February 2007.

In November 2012, Plaintiff was assigned to a

two-person cell on the third floor of Building 5752 in the east
compound of Fort Dix, and in order to travel between floors,
inmates used one of two staircases.

On November 29, 2012,

Plaintiff was walking up one of the stairwells in Building 5752
carrying a bag from the commissary.

As he climbed from the

second to the third floor, Plaintiff’s knee “gave out” due to
shooting pain, which caused him to fall backwards and hit his
back and hip on the stairs.
Plaintiff does not allege that Defendant is liable for his
fall. 4

Rather, he contends that Defendant’s failure to relocate

him to a first-floor cell after his fall exacerbated his back
injury.

Plaintiff remained in his third-floor cell from the

date of his fall until his transfer on October 29, 2013 to
another institution.

During most of that time, Plaintiff used a

wheelchair and cane to get around the prison.

Plaintiff claims

that having to go up and down three flights of stairs multiple
times a day, often on his hands and knees, made his back injury
worse, and constituted cruel and unusual punishment.
Defendant has moved for summary judgment, arguing that

4

Some portions of Plaintiff’s complaint could be read to assert
a claim that Defendant was negligent in not anticipating that a
fall would occur as a result of a known problem with Plaintiff’s
knee. Subsequent submissions from the Plaintiff make clear that
he disavows any claim that Defendant was responsible for his
initial fall.
3

Plaintiff has not provided any evidence to support his
contention that the location of his cell on the third floor
aggravated his back injury.

Defendant further argues that

Plaintiff has not provided any evidence to refute Defendant’s
expert, who reviewed Plaintiff’s medical records and determined
that the medical records establish that Plaintiff’s condition
actually improved during his course of treatment for the
injuries he sustained in the fall.

Thus, Defendant argues that

it is entitled to judgment in its favor on Plaintiff’s
negligence claim.
Plaintiff has opposed Defendant’s motion, 5 and argues that
Defendant was negligent in Plaintiff being forced to remain in a

5

Pursuant to Local Civil Rule 56.1, Defendant submitted a
statement of material facts in support of its motion for summary
judgment. Since Defendant is moving for summary judgment, all
of Plaintiffs' evidence “is to be believed and all justifiable
inferences are to be drawn in [his] favor.” Marino v. Indus.
Crating Co., 358 F.3d 241, 247 (3d Cir. 2004). Plaintiff,
however, has failed to submit a “responsive statement of
material facts, addressing each paragraph of movant's statement,
indicating agreement or disagreement, if not agreed, stating
each material fact in dispute and citing to the affidavits and
other documents submitted in connection with the motion[ ]” as
required by Local Civil Rule 56.1. Ordinarily, as a result of a
failure to abide by Local Civil Rule 56.1, “any material fact
not disputed shall be deemed undisputed for purposes of the
summary judgment motion.” Id. Even though Plaintiff is
appearing pro se, pro se litigants are “not excused from
conforming to the standard rules of civil procedure.” McNeil v.
United States, 508 U.S. 106, 113 (1993). That having been said,
in light of Plaintiff’s pro se status, the Court will consider
all of his arguments and proffered evidence in the light most
favorable to him despite his non-compliance with our local
rules.
4

third-floor cell, where at times he had to crawl on his hands
and knees to get to and from his cell, and that such
circumstances also constituted cruel and unusual punishment.
Defendant has construed Plaintiff’s complaint to only assert a
claim of negligence, but argues that even if Plaintiff’s
complaint could be read to assert a claim for an Eighth
Amendment violation, it would fail because the United States has
not waived its sovereign immunity for this constitutional tort
claim, and because Plaintiff has failed to exhaust his
administrative remedies, which is a jurisdictional prerequisite
for prisoners before filing suit for constitutional claims.
DISCUSSION
A.

Subject matter jurisdiction

Because Plaintiff has lodged his negligence claim against
the United States, the Court has subject matter jurisdiction
over Plaintiff’s complaint under 28 U.S.C. § 1346(b)(1) (“[T]he
district courts . . . shall have exclusive jurisdiction of civil
actions on claims against the United States, for money damages,
accruing on and after January 1, 1945, 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
5

the place where the act or omission occurred.”).
B.

Standard for Summary Judgment

Summary judgment is appropriate where the Court is
satisfied that the materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations, admissions, or
interrogatory answers, demonstrate that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.

Celotex Corp. v.

Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(a).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
party’s favor.
248 (1986).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

A fact is “material” if, under the governing

substantive law, a dispute about the fact might affect the
outcome of the suit.

Id.

In considering a motion for summary

judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party's evidence “is to be believed and
all justifiable inferences are to be drawn in his favor.”
Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir.
2004)(quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating
the absence of a genuine issue of material fact.
6

Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986).

Once the moving party has

met this burden, the nonmoving party must identify, by
affidavits or otherwise, specific facts showing that there is a
genuine issue for trial.

Id.

Thus, to withstand a properly

supported motion for summary judgment, the nonmoving party must
identify specific facts and affirmative evidence that contradict
those offered by the moving party.
57.

Anderson, 477 U.S. at 256-

A party opposing summary judgment must do more than just

rest upon mere allegations, general denials, or vague
statements.

Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.

2001).
C.

Analysis
1.

Plaintiff’s negligence claim

Plaintiff claims that Defendant was negligent when it
failed to provide Plaintiff with a first-floor cell after he
suffered from his back injury.

Plaintiff contends that during

the time he required a wheelchair to get around the prison due
to the injuries he sustained in his fall, he still was required
to walk up and down three flights of stairs three times a day.
Plaintiff claims that this aggravated his injuries and caused
him additional pain and suffering.
The United States has sovereign immunity except where it
consents to be sued.

United States v. Bormes, 133 S. Ct. 12, 16

(2012); United States v. Mitchell, 463 U.S. 206, 212 (1983).
7

In

the absence of such a waiver of immunity, Plaintiff cannot
proceed in an action for damages against the United States.

See

FDIC v. Meyer, 510 U.S. 471, 484–87 (1994).
The Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2401,
2671, et seq., constitutes a limited waiver of the sovereign
immunity of the United States.

28 U.S.C. § 2679(b)(1); White–

Squire v. United States Postal Service, 592 F.3d 453, 456 (3d
Cir. 2010).

The Federal Tort Claims Act (“FTCA”) gives a

district court exclusive jurisdiction over civil actions: “[1]
against the United States, [2] for money damages, ... [3] for
injury or loss of property, ... [4] caused by the negligent or
wrongful act or omission of any employee of the Government [5]
while acting within the scope of his office or employment, [6]
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.”

Deutsch

v. United States, 67 F.3d 1080, 1091 (3d Cir. 1995) (quoting 28
U.S.C. § 1346(b)); see also CNA v. United States, 535 F.3d 132,
141 (3d Cir. 2008) (quoting FDIC v. Meyer, 510 U.S. at 477);
United States v. Muniz, 374 U.S. 150 (1963).
The FTCA “does not itself create a substantive cause of
action against the United States; rather, it provides a
mechanism for bringing a state law tort action against the
federal government in federal court.”
8

In re Orthopedic Bone

Screw Prod. Liab. Litig., 264 F.3d 344, 362 (3d Cir. 2001). 6
FTCA claims are governed by the substantive tort law of the
state where the acts or omissions occurred.
at 477–78.

See FDIC, 510 U.S.

The Court therefore applies New Jersey substantive

law to assess Plaintiff’s claims.
To prevail on a claim of negligence, a plaintiff must
establish four elements: (1) that the defendant owed a duty of
care; (2) that the defendant breached that duty; (3) actual and
proximate causation; and (4) damages.

Fernandes v. DAR

Development Corp., 119 A.3d 878, 885–86 (N.J. 2015)(citations
omitted).

Ordinarily, the plaintiff bears the burden of proving

the defendant's negligence and that such negligence was the
proximate cause of the plaintiff's injury.

Id. (citations

omitted).
For a plaintiff to show proximate cause, a defendant's
conduct must be a cause-in-fact of the plaintiff's injury, and
the plaintiff must prove this fact by a preponderance of the
evidence.

Webb v. United States, 2016 WL 3647988, at *2 (D.N.J.

2016) (citing Kulas v. Public Serv. Elec. & Gas Co., 41 N.J.

6

Defendant does not argue that Plaintiff failed to comply with
the tort claim notice requirement of the FTCA. See Martin v.
Unknown U.S. Marshals, 965 F. Supp. 2d 502, 538 (D.N.J. 2013)
(citing 28 U.S.C. § 1346(b); 28 U.S.C. § 2675(a)) (explaining
that a jurisdictional prerequisite to filing certain types of
civil suits against federal agents under the FTCA requires a
claimant to place the government on notice, within ninety days
of the accrual of such claim).
9

311, 317 (1964)).

“It is axiomatic that ‘the mere showing of an

accident causing injuries is not sufficient from which to infer
negligence.

Negligence is a fact which must be proved; it will

not be presumed.’”

Fedorczyk v. Caribbean Cruise Lines, Ltd.,

82 F.3d 69, 74 (3d Cir. 1996) (quoting Hansen v. Eagle-Picher
Lead Co., 84 A.2d 281, 284 (N.J. 1951)).

“The plaintiff must

introduce evidence which provides a reasonable basis for the
conclusion that it was more likely than not that the negligent
conduct of the defendant was a cause in fact of the injury.”
Id. (citation omitted).
Here, Plaintiff claims that during the months he used a
wheelchair to get around Fort Dix, he remained assigned to a
third-floor cell, which, unless someone helped him, required him
to crawl up and down the stairs on his hands and knees several
times a day.

Plaintiff also claims that having to ascend and

descend the stairs during those months aggravated and
exacerbated his back injuries.
Defendant argues that Plaintiff has provided no proof to
support his claim that going up and down the stairs during that
time period made his back injury worse.

Even assuming that

Defendant had a duty to provide Plaintiff with a cell on the
first floor and it breached that duty, 7 Defendant argues that

7

Plaintiff claims that he asked his building counselor and the
medical department many times to be assigned a first-floor cell,
10

Plaintiff cannot show how that breach of duty caused Plaintiff
any injuries.

Indeed, Defendant argues that Plaintiff’s

condition improved during the time Plaintiff was assigned a
wheelchair, to the point he requested to return the wheelchair
and use a cane instead, and then ultimately walked without any
assistive device.
The Court agrees with Defendant that there exists no
material dispute as to causation.

On February 11, 2013, the

health services department at Fort Dix issued Plaintiff the use
of a wheelchair and crutches, in addition to continuing him on
several medications.

By March 22, 2013, Plaintiff was seen at

health services for a medication renewal/review, and Plaintiff
reported that his back pain was well-controlled with the
medications he was taking and denied any side-effects.

On April

10, 2013, at another health services check-up, the doctor found
that the X-rays taken at the direction of an orthopedist
Plaintiff saw in February 2013 were unremarkable, Plaintiff’s
medications were helpful, and Plaintiff reported that he had
been getting around with a wheelchair, but now wanted to use a
cane instead.

Two weeks later in April 2013, Plaintiff stopped

but there is no evidence in the record to support that
contention. Even accepting that Plaintiff repeatedly made those
requests, Plaintiff admits that he did not file a grievance or
submit a “cop-out” about his assignment to a third-floor room.
11

using the wheelchair altogether, and Plaintiff was observed
walking on the track at 7:15 a.m., ambulating without difficulty
while using the cane.

Plaintiff subsequently requested reduced

medications, and on October 22, 2013, just prior to transfer out
of Fort Dix, Plaintiff requested a knee and back brace to
replace the ones that had gone missing, and a lower bunk pass.
The report notes that Plaintiff had no other complaints.
Plaintiff’s account is in line with his medical records.
Plaintiff testified at his deposition that he used the
wheelchair for several months, and his back pain gradually
decreased over the course of these months, to the point that he
asked to exchange the wheelchair for a cane at his April 10,
2013 appointment. 8

By the time Plaintiff transferred out of Fort

Dix in October 2013, Galloway was able to walk around the track
20-40 laps three to four times a week, and he was only
occasionally using a cane.

8

Plaintiff relates that he used a wheelchair from December 6,
2012, but the medical records show that he was issued a “medical
duty status” form, which allowed Plaintiff to have a pair of
crutches, a wheelchair, and carry a cane, on February 11, 2013.
The date Plaintiff began to use a wheelchair does not ultimately
affect the Court’s analysis of Plaintiff’s claim, but the Court
will accept as true that Plaintiff used a wheelchair beginning
in December 6, 2012. Plaintiff also states that he used the
wheelchair until May 3, 2013, but the medical records show that
he asked to return the wheelchair on April 10, 2013. Again,
these dates do not affect the outcome of Plaintiff’s case, but
the Court will accept as true Plaintiff’s representation as to
the duration of time he used a wheelchair.
12

Defendant’s expert, Dr. Wendell Scott, who is a boardcertified orthopedic surgeon with more than thirty years of
experience in the field of orthopedics, provides further support
that Plaintiff has not established that his third-floor cell
aggravated his back injury.

Dr. Scott opined that, within a

reasonable degree of medical probability, the Plaintiff
sustained a back injury on November 29, 2012, which either
caused the L4/5 disc herniation noted in his June 2013 MRI, or
exacerbated a prior L4/5 disc herniation.

Dr. Scott further

opined that treatment at Fort Dix from December 2012 through
April 2013 improved Plaintiff’s pain and permitted an increase
in his functional capability, a conclusion supported by
Plaintiff’s request on April 10, 2013, to stop use of the
wheelchair and to walk with a cane.

Based on these records, Dr.

Scott concluded that the treatment at Fort Dix did not
exacerbate Plaintiff’s back condition.
Dr. Scott further concluded that although Plaintiff claims
to have experienced increased back pain when climbing stairs
between December 2012 and April 2013, there is no objective
medical evidence that the low back diagnosis, an L4/5 disc
herniation, was worsened by stair climbing.

Dr. Scott points

out that Plaintiff’s lumbar spine MRI scan in June 2013 did not
identify compression or direct pressure upon the left L4 and
left L5 spinal nerve roots, which one would expect to see if
13

Plaintiff’s condition had worsened.

Furthermore, at no time

between December 2012 and April 2013 did health care
professionals at Fort Dix document worsening lower extremity
neurologic function based on increasing loss of motor strength,
greater compromise in sensation, or greater compromise in deep
tendon reflexes.
Dr. Scott noted that a worsening of the L4/5 disc
herniation would have caused greater pressure on the spinal
nerve roots at L4/5 and thus greater neurologic function
compromise of the lower extremities (such as loss of motor
strength, sensation, or deep tendon reflexes) that would have
been easily diagnosed on physical examination.

In Dr. Scott’s

view, the absence of any such findings for Plaintiff provides
further evidence that he did not experience aggravation of the
L4/5 disc herniation.

Likewise, the improvement in Plaintiff’s

condition and his request to use a cane in place of wheelchair
support the conclusion that there was no worsening of the
herniation or any loss of neurological function in the lower
extremity.
Dr. Scott also notes that, between December 2012 and April
2013, Plaintiff improved without invasive spine treatments.
Invasive spine intervention for a worsening disc herniation
would include invasive pain management treatments with
injections into the spinal column, medial bundle branch blocks,
14

and radiofrequency ablation of medial bundle branch nerves, with
the most invasive treatment being surgical excision of the
herniated disc material to relieve spinal nerve root and spinal
cord pressure.

Dr. Scott concludes that Plaintiff’s improvement

without invasive spine treatment is further objective evidence
of no worsening of the L4/5 disc herniation between December
2012 and April 2013.
In conclusion, Dr. Scott found that, within a reasonable
degree of medical probability, Plaintiff’s climbing of stairs
between December 2012 and April 2013 did not exacerbate the L4/5
disc herniation despite his reporting of a subjective increase
in pain.
Based on the foregoing, the Court finds that even if
Defendant breached its duty to provide Plaintiff with a firstfloor cell, Plaintiff has failed to offer sufficient evidence
from which a reasonable jury could conclude his continued
housing on the third floor caused him the damages he claims. 9
Plaintiff’s burden to establish proximate cause must be
supported by a preponderance of the evidence, but aside from his
claims of subjective pain, all the evidence in this case refutes

9

Even if we construe Plaintiff’s claim to be that the lack of a
first floor cell negligently delayed Plaintiff’s improved
condition the Court would still grant summary judgment. There
is no record evidence to support a claim that recovery was
delayed. Therefore any jury finding in that regard would rest
solely on speculation.
15

Plaintiff’s claims that his third-floor cell aggravated his back
injury.

To the contrary, the record evidence establishes that

Plaintiff’s back condition significantly improved rather than
deteriorated during that time.
We note that the Court is perplexed by the seeming
incongruity of prison officials issuing an inmate a wheelchair
to move around on the first floor and at the same time forcing
him to climb two sets of stairs with a recognized back injury to
his cell and bunk several times a day. 10

However, to the extent

Plaintiff asserts a negligence claim such a claim hinges on
proving injury and causation as much as proving a breach of a
duty.

“[T]he issue of a defendant's liability cannot be

presented to the jury simply because there is some evidence of
negligence” – “[t]here must be evidence or reasonable inferences
therefrom showing a proximate causal relation between
defendant’s negligence, if found by the jury, and the resulting
injury.”

Davidson v. Slater, 914 A.2d 282, 293 (N.J. 2007)

(internal quotations and citations omitted).
Plaintiff has failed to provide disputed issues of material
fact to support his contention that Defendants’ failure to

10

Moreover, the allegation, not rebutted, that for at least some
of that time Plaintiff had to navigate stairs on his hands and
knees, paints a disturbing picture of demeaning and, if a first
floor cell had been available, unnecessary mistreatment. We
address any asserted constitutional claim below.
16

provide him with a cell on the third floor following his back
injury caused him any additional injury.

Plaintiff’s

unsupported, conclusory statements to the contrary cannot save
his claim.

Defendant is therefore entitled to summary judgment

on Plaintiff’s negligence claim.
2.

Plaintiff’s Eight Amendment Claim

Plaintiff’s opposition to Defendant’s motion states that he
suffered from cruel and unusual punishment by remaining assigned
to a third-floor cell, but Plaintiff’s complaint does not
explicitly contain an Eighth Amendment claim.

Accordingly, we

do not fault Defendant for narrowly construing Plaintiff’s
complaint as only asserting a claim for negligence under the
FTCA.
The Court, however, must construe Plaintiff’s complaint
liberally when considering claims drafted by a pro se plaintiff.
See Estelle v. Gamble, 429 U.S. 97, 106 (1976).

Plaintiff’s

complaint avers several times that Defendant’s actions
constituted cruel and unusual punishment, and Plaintiff’s
opposition brief repeatedly reasserts that contention.

Thus,

the Court will construe Plaintiff’s complaint to contain an
inartful claim against Defendant for a violation of the Eighth
Amendment even if that Amendment or the Constitution are not
expressly invoked.

Nonetheless, such a claim, like the

negligence claim, must fail.
17

Constitutional torts alleged by federal prison inmates may
be advanced under Bivens v. Six Unknown Fed. Narcotics Agents,
403 U.S. 388 (1971).

In Bivens, the Supreme Court held that a

violation of the Fourth Amendment by a federal agent acting
under color of his authority gives rise to a cause of action
against that agent, individually, for damages.

The Supreme

Court has also implied damages remedies directly under the
Eighth Amendment.

See Carlson v. Green, 446 U.S. 14 (1980); see

also Egervary v. Young, 366 F.3d 238, 246 (3d Cir. 2004), cert.
denied, 543 U.S. 1049 (2005) (explaining that Bivens actions are
simply the federal counterpart to § 1983 actions brought against
state officials who violate federal constitutional or statutory
rights).
In order to state a claim under Bivens, a claimant must
show: (1) a deprivation of a right secured by the Constitution
and laws of the United States; and (2) that the deprivation of
the right was caused by an official acting under color of
federal law.

See Couden v. Duffy, 446 F.3d 483, 491 (3d Cir.

2006).
Prison conditions can run afoul of the Eighth Amendment’s
proscription on cruel and unusual punishment by either ignoring
“evolving standards of decency” or involving “unnecessary and
wanton infliction of pain.”

Rhodes v. Chapman, 452 U.S. 337,

346 (1981) (citations omitted).

To assert an Eighth Amendment
18

claim resulting from an inmate’s conditions of confinement, a
prisoner must first show that the alleged deprivation is
“sufficiently serious” and that the prisoner has been deprived
of the “minimal civilized measure of life's necessities.”
Farmer v. Brennan, 511 U.S. 825, 834 (1994).

A prisoner must

then show that prison officials recognized the deprivation and
demonstrated “deliberate indifference” to the prisoner's health
or safety.

Id.

Only “‘extreme deprivations’” are sufficient to

present a claim for unconstitutional conditions of confinement.
See Fantone v. Herbik, 528 F. App’x 123, 127 (3d Cir. 2013)
(quoting Hudson v. McMillian, 503 U.S. 1, 8–9 (1992)).
Even if we accept that Plaintiff’s allegations concerning
the difficulties he faced in reaching the third floor meet the
high evidentiary burden of an Eighth Amendment claim, his claim
still fails for three jurisdictional reasons.

First, the United

States is not liable under the FTCA and § 1346(b), the statutes
Plaintiff invokes, for constitutional tort claims.

FDIC v.

Meyer, 510 U.S. 471, 478 (1994) (explaining that absent a
waiver, sovereign immunity shields the federal government and
its agencies from suit, and the FTCA’s waiver of sovereign
immunity does not encompass federal constitutional tort claims
against the United States or its agencies).
Second, even if we construe Plaintiff’s complaint to assert
a stand-alone Bivens claim, such an action is not available
19

against the United States or one of its agencies.

See Corr.

Servs. Corp. v. Malesko, 534 U.S. 61, 72 (2001); Jaffee v.
United States, 592 F.2d 712, 717 (3d Cir. 1979).

Instead, a

Bivens actions must be lodged against an individual federal
actor.

See Corr. Servs. Corp., 534 U.S. at 71 (explaining that

Bivens claims may be brought only against individual federal
officers, not the United States or the BOP).

Plaintiff has only

asserted his claims against the BOP.
Third, in order to bring an Eighth Amendment violation
claim in the first instance, Plaintiff is required to show that
he exhausted his administrative remedies.

The Prison Litigation

Reform Act of 1995 (PLRA), 42 U.S.C. § 1997e(a), mandates that
an inmate exhaust “such administrative remedies as are
available” before bringing suit to challenge prison conditions.
Section 1997e(a) provides: “No action shall be brought with
respect to prison conditions under section 1983 of this title,
or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative
remedies as are available are exhausted.”
mandatory.

This language is

Ross v. Blake, 136 S. Ct. 1850, 1856 (2016); Nyhuis

v. Reno, 204 F.3d 65, 68 (3d Cir. 2000) (“[Section] 1997e(a)
applies equally to § 1983 actions and to Bivens actions.”).
Plaintiff claims in his complaint that he pleaded with the
building counselor more than 20 times to secure a cell on the
20

first floor, and he pleaded with medical staff for a first-floor
cell, but Plaintiff has not provided any indication that he
pursued any administrative remedies.

Thus, Plaintiff would not

be able to bring any Eighth Amendment violation claim unless he
exhausted his administrative remedies at FCI Fort Dix.
Consequently, because Plaintiff’s cruel and unusual
punishment claim is not viable for the three forgoing reasons,
Defendant is entitled to summary judgment on any claim premised
on the Eighth Amendment.
CONCLUSION
For the reasons expressed above, Defendant’s motion for
summary judgment must be granted as to both claims in
Plaintiff’s complaint – one for negligence, and one for a
violation of the Eighth Amendment.

An appropriate Order will be

entered.

Date: November 8, 2017
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

21