COFIELD v. UNITED STATES DEPARTMENT OF JUSTICE et al

Filing 52

OPINION FILED. Signed by Judge Renee Marie Bumb on 3/23/17. (js)

NOT FOR PUBLICATION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

:
:
:
Plaintiff,
:
:
v.
:
:
U.S. Dept. of Justice, et al.,:
:
Defendants.
:
:
Dr. Keenan K. Cofield,

Civil Action No. 15-558(RMB)

OPINION

APPEARANCES:
Keenan K. Cofield
4109 Cutty Sark Rd.
Baltimore, MD 21220
Acting pro se
Anne B. Taylor
Assistant U.S. Attorney
Office of the U.S. Attorney
District of New Jersey
401 Market Street, 4th Floor
P.O. Box 2098
Camden, NJ 08101
On behalf of Defendants
BUMB, District Judge:
This matter is before the Court upon Defendants’ Partial
Motion to Dismiss the Amended Complaint (ECF No. 44; “Defs’
Brief,” ECF No. 44-1) and Plaintiff’s opposition brief. (ECF No.
45.)

Pursuant to Federal Rule of Civil Procedure 78(b), the

1

Court will determine the motion on the briefs, without oral
argument.
I.

PROCEDURAL HISTORY
Plaintiff began this civil action (Compl., ECF No. 1-1 at

4-15) in Superior Court of the District of Columbia.

Defendants

removed the case to the U.S. District Court for the District of
Columbia. (See Civil Docket for case #1:14-cv-00746-KBJ, U.S.
District Court, District of Columbia) (ECF No. 12).

On January

28, 2015, the District of Columbia transferred the case to the
District of New Jersey because Plaintiff’s claims arose out of
events that occurred while he was imprisoned at the Federal
Correctional Institution (“FCI-Fairton”) in Fairton, N.J. (See,
Memorandum Opinion and Order Granting Motion to Transfer, ECF
No. 11.)
On August 21, 2015, Defendants filed a motion to dismiss
the complaint.

(ECF No. 19.)

On February 3, 2016, this Court

granted Defendants’ motion to dismiss, dismissing some claims
with prejudice and other claims without prejudice.

(Opinion and

Order, ECF Nos. 21-23.) Significant to the present motion, the
Court identified the following pleading defects in the claims
that were dismissed without prejudice:
1) FTCA Claim:
a federal inmate may not
bring an action under the Federal Tort
Claims Act for work-related injuries in
federal
prison,
or
subsequent
medical
treatment for such injuries because the
2

Inmate Accident Compensation Act provides
the exclusive remedy for such negligencebased claims;
2) Bivens Claim:
There are no allegations
in the complaint suggesting how the BOP
Director was personally involved in any
alleged constitutional violation;
3) Defendants Martinez and Cruz:
when a
complaint is silent as to a defendant,
except for his name appearing in the
caption, the complaint is properly dismissed
even under the liberal construction given to
pro se complaints;
4) Eighth Amendment work restriction claim:
Plaintiff must allege facts that would
plausibly show a particular defendant had
actual
knowledge
of
his
medical
work
restrictions but acquiesced in forcing him
to work beyond those restrictions;
5) Eighth Amendment medical care claim:
Plaintiff did not allege that any specific
prison
medical
professional
refused
to
evaluate or treat him upon his request or
that any specific prison employee prevented
him
from
seeing
a
prison
medical
professional;
6) Eighth Amendment supervisory liability
claim: personal involvement by a supervisor
in an alleged constitutional violation can
be shown by personal direction or actual
knowledge
and
acquiescence,
and
such
allegations must be made with appropriate
particularity;
7)
Eighth
Amendment
conditions
of
confinement claim:
Plaintiff must provide
additional facts including each defendant’s
personal
involvement
in
the
alleged
constitutional violation.
8)
Due
Process
property
loss
claim:
Plaintiff has not alleged sufficient facts
3

to
establish
that
the
post-deprivation
remedies he sought for his loss of property
are not adequate;
9) Supervisory liability and failure to
train: Plaintiff alleged only conclusory
allegations that suggest vicarious liability
of the supervisory defendants, regardless of
the constitutional claim at issue.
(Id.)
On

July

5,

2016,

Plaintiff

filed

an

amended

complaint,

seeking to cure the pleading defects in his complaint. (Am.
Compl., ECF No. 38 at 3-26).
filed

the

complaint.

present

partial

(ECF No. 44.)1

On August 9, 2016, Defendants
motion

to

dismiss

the

amended

Plaintiff filed an opposition brief.

(ECF No. 45.)
II.

DISCUSSION
A.

The Amended Complaint

Plaintiff alleged the following facts in support of his
amended complaint.

With respect to his FTCA claims, Plaintiff

asserts he filed several administrative tort claims with the
FBOP, the U.S. Department of Justice, and the United States of
America, seeking damages for each issue that is the subject of
this

lawsuit.

(ECF

No.

38,

¶3A)

1

(emphasis

added).

The

Defendants do not seek to dismiss Plaintiff’s claim for
judicial review under the Inmate Accident Compensation Act
(“IACA”).
(ECF No. 44 at x.)
Therefore, the Court will not
summarize the allegations in the Amended Complaint related to
the IACA claim.
4

Defendants failed to file an answer or deny each tort claim.
(Id., ¶3F.)
In support of an Eighth Amendment claim, Plaintiff alleged
that an unidentified counselor and case manager at FPC-Fairton
assigned him to specific work duties in Food Services.
¶40.)

During

the

interview

process,

the

counselor

(Id.,
told

Plaintiff that he/she had verified his permanent disability and
medical restriction for “No Food Service Assignments.”
Compl., ECF No. 38, ¶41.)

(Am.

The case manager told him that there

is proof of his total, permanent disability in his electronic
records.
they

(Id.)

read

(Id., ¶42.)

The counselor and case manager admitted that

Plaintiff’s

work

restrictions

“off

the

computer.”

They knew Plaintiff’s assigned work duties required

him to use his right hand to perform labor that was beyond his
strength, causing him pain every day.

(Id., ¶43.)

The counselor advised Plaintiff that Ms. Levi and Warden
Shartle had instructed him/her to create a job specifically for
him.

(Id., ¶44.)

(Id., ¶45.)

No other inmate had the same job duties.

After Plaintiff complained to his supervisors, the

counselor, and the case manager, “Defendants refused to take me
off the detail, and added more hours [a]nd for me to work (7)
days a week without a day off.”

(Id., ¶¶49-50.)

The counselor was assigned to investigate the complaints
that Plaintiff made to the warden.
5

(Id., ¶51.)

Neither the

warden nor the counselor changed his job assignments or his
hours, and they each told him to live with it.

(Id.)

Plaintiff alleged the following facts in support of his
Eighth Amendment denial of adequate medical care claim.

Each

time Plaintiff suffered a work accident, he reported it to his
counselor, his case manager, Ms. Levi, and his food service
supervisors.

(Am. Compl., ECF No. 38, ¶52.)

None of these

Defendants reported the accidents to “Medical” or the Safety
Manager, and they prevented and conspired to prevent Plaintiff
from seeing medical personnel or from reporting his accident to
the Safety Manager.
Plaintiff’s
enough

to

intentional

(Id., ¶¶53, 56, 57.)

injuries

require
delay

were

medical
in

visible,

apparent

treatment.2

providing

Plaintiff

(Id.,

and
¶54.)

medical

serious
The

attention

caused him to suffer permanent loss and affected several of his
life-long handicaps.

(Id., ¶55.)

Plaintiff filed “Sick Calls”

for his injuries, using the normal procedure, but he was not
seen until months later, when a dentist noted the injury to his
jaw.

(Id., ¶58.)
For his conditions of confinement claim, Plaintiff alleges

that while he was in administrative segregation, he complained
verbally and in writing to the warden, assistant wardens, a
2

In his initial complaint, Plaintiff alleged he received pain
medication from the “pill line” for his injuries but he was not
examined until months later. (Compl., ECF No. 1, ¶¶7-9.)
6

captain,

Ms.

Levi,

counselors,

case

managers

and

the

duty

officer that he had to sleep on the floor without a mattress,
with

only

sheets

and

a

blanket.

(Id.,

¶59.)

Defendants

admitted the unit was overcrowded and nothing could be done.
(Id., ¶60.)

Plaintiff was bitten by ants and roaches while

sleeping on the floor, and Defendants knew about this problem.
(Id., ¶¶61, 62, 64.)

Plaintiff was given medication for his

insect bites, but he did not get a mattress.
In

Paragraphs

75,

76,

78,

91

and

(Id., ¶64.)
92

of

the

Amended

Complaint, Plaintiff alleged the following regarding his loss of
property claim:
Plaintiff filed several Administrative Claim
regarding property losses with the Agency
pursuant to 28 USC 2401, 2675. The statute
only requires me to wait (6) six months for
an Answer. A year past Nothing.
Clearly, Plaintiff’s Due Process rights were
intentionally, violated And the Defendant
nor Agency deserve any protections for
failing to comply with statute and policy.
Proper claims under 28 USC 3723 And 3724
were filed on time, as to the property loss
issues.
On March 22, 2012, the 2nd shift officer on
duty at FPC-Fairton was the first person of
contact
who
confiscated
and
allow
my
property to be missing, and property he
failed to place on the inventory sheet, and
allowed inmates to steal before he could
secure it.
Then the Admin. Seg. And FCI-Fairton ICS and
R&D Officers were responsible to mail and
7

forward my property to me.
When the
property arrived at my MD facility it was
clear property was missing.
Again, not on
any inventory sheets.
And I received legal
and other property not on any inventory log.
In support of his failure to train and supervise claims,
Plaintiff alleges Defendants “created gross violations of the
procedural safeguards required of each.”

(Am. Compl., ECF No.

38, ¶81.)
The facts, claims and evidence show a clear
pattern of constitutional violations by
untrained employees, and officials, who[se]
procedural
defects
or
inactions
are
ordinarily necessary to ensure the process
is fair, complete and by policy. There was
a deliberate indifference to their legal
duties, duties to follow (All) procedures
timely.
(ECF No. 38 at 24-25, ¶84.)
B.

Analysis
1.

FTCA Claims

Defendants

argue

Plaintiff

has

not

satisfied

the

prerequisites for bringing an FTCA claim because he does not
clearly allege the subject matter of the administrative claims
he filed or when they were filed.
Additionally,

a

federal

inmate’s

(ECF No. 44-1 at 6-8.)
claims

for

work-related

injuries and subsequent medical treatment for such injuries must
exclusively be brought under the IACA.

(Id., at 6.)

The law of the place where the alleged negligent act or
omission

occurred

is

applied

to
8

FTCA

claims.

28

U.S.C.

§

1346(b)(1).

Under New Jersey law, to prevail on a negligence

claim, a plaintiff must prove that a defendant’s breach of a
duty caused his injury.

Fedorczyk v. Caribbean Cruise Lines,

Ltd., 82 F.3d 69, 73 (3d Cir. 19996).
Liberally construing the amended complaint, the Court can
identify

two

negligence

injuries

and

medical

claims

unrelated

treatment

for

to

those

Plaintiff’s

injuries.

work

First,

Plaintiff alleged he was forced to sleep on the floor without a
mattress due to overcrowding in the administrative segregation
unit.

(Am. Compl., ECF No. 38, ¶¶59-60.)

Defendants

had

a

“legal,

moral

and

He alleged that

Constitutional

duty

provide me a bed/mattress to sleep on the floor with.”
¶61.)

to

(Id.,

He complained to Warden Shartle, the assistant wardens, a

captain, Ms. Levi, counselors, a case manager, and the duty
officers on duty each day, and no one did anything about it,
resulting

in

Plaintiff’s

sleeping on the floor.

injuries

from

insect

bites

while

(Id., ¶¶59, 64.)

For his second negligence claim that is unrelated to work
injuries

or

medical

treatment

for

work

injuries,

Plaintiff

alleged Bureau of Prisons (BOP) employees negligently lost his
property when he was transferred to another facility.
¶¶91-93.)
because

28

(Id.,

This claim, however, cannot be brought under the FTCA
U.S.C.

§

2680(c)

forecloses

lawsuits

against

the

United States for loss of a prisoner’s personal property by BOP
9

Officers.

Ali v. Federal Bureau of Prisons, 552 U.S. 214, 218

(2008).
In deciding a motion to dismiss, the Court must accept
Plaintiff’s factual allegations as true.

See Fowler v. UPMC

Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (“the District
Court must accept all of the complaint's well-pleaded facts as
true,

but

omitted).

may

disregard

any

legal

conclusions”)

(citation

Plaintiff alleged he timely filed an administrative

claim with the appropriate agency for each claim in the amended
complaint, and that he did not receive an answer to any of his
claims

after

waiting

for

six

months.

Therefore,

Plaintiff

sufficiently pled that he exhausted an FTCA claim alleging he
was injured by insect bites when Defendants forced him to sleep
on the floor without a mattress.

The United States shall be

added as the defendant to this FTCA claim.3
This decision does not preclude Defendants from presenting
a factual attack on the Court’s jurisdiction over Plaintiff’s

3

The Court notes Defendants did not raise the issue of whether
the discretionary function exception applies to the negligence
claim based on failure to provide a mattress or bed due to
overcrowding. See e.g. Lineberry v. U.S., Civ. Action No. 3:08CV-0597-G, 2009 WL 763052, at *6 (N.D. Tex. Mar. 23, 2009)
(finding FTCA claim for negligent overcrowding was precluded by
discretionary function exception); Rinaldi v. U.S., 460 F. App’x
80 (3d Cir. 2012) (statutory requirement for BOP to provide for
“protection” and “safekeeping” of inmates involved element of
judgment as required for discretionary function exception); see
also U.S. v. Gaubert, 499 U.S. 315, 325-26 (1991) (describing
application of discretionary function exception).
10

FTCA claims, if Defendants can establish that Plaintiff did not
in fact satisfy the jurisdictional prerequisites.

See Gould

Electronics, Inc. v. United States, 220 F.3d 169, 177 (3d Cir.
2000).
2.

Bivens Claims against the BOP Director, David
Martinez, and Mr. Cruz, Inmate Systems Supervisor

Defendants contend Plaintiff failed to allege the personal
involvement of the BOP Director or David Martinez or Mr. Cruz in
his amended complaint.

(Defs’ Brief, ECF 44-1 at 14-15.)

Upon

review by the Court, the only mention of the BOP Director in the
amended

complaint

is

that

“Plaintiff

filed

Administrative

BP

remedies as to each issue with the Defendants, including BOP
Director, who did not file any Answer to those claims.”

(Am.

Compl., ECF No. 38 at 15, ¶36.)
“Violations of grievance procedures do not give rise to a
cognizable claim under section 1983” or under Bivens.

Iwanicki

v. Pennsylvania Dept. of Corrections, 582 F. App’x 75, 81 (3d
Cir. 2014) (citing Hoover v. Watson, 886 F. Supp. 410, 418-19
(D. Del. 1995) aff’d, 74 F.3d 1226 (3d Cir. 1995) (no cognizable
claim under § 1983); Burnside v. Moser, 138 F. App’x 414, 416
(3d Cir. 2005) (no cognizable claim under Bivens).

Furthermore,

Plaintiff did not require a response from the BOP Director in
order

to

file

his

FTCA

claim(s)

because

“the

failure

of

an

agency to make final disposition of a claim within six months

11

after it is filed shall, at the option of the claimant any time
thereafter, be deemed a final denial of the claim for purposes
of this section.”

28 U.S.C. § 2675(a).

Therefore, Plaintiff

has failed to state a Bivens claim against the BOP Director.
Plaintiff does not mention Martinez or Cruz anywhere in the
amended complaint, after having been given an opportunity to
amend

his

allege

claims

their

against

personal

them.

Therefore

involvement

in

a

he

has

failed

constitutional

to

claim.

See Iqbal, 556 U.S. at 676 (“a plaintiff must plead that each
Government-Official

defendant,

through

the

official’s

individual actions, has violated the Constitution.”)

own

The Court

will dismiss Martinez and Cruz from the amended complaint.
3.

Eighth Amendment Claim for Work Assignment Beyond
Medical Restrictions

Defendants assert that Plaintiff failed to state a claim
based on his work assignment because he did not plead how any of
the Defendants:

(1) learned that he was awarded disability

benefits or (2) learned of his medical restrictions that were
assigned at a prior correctional facility or (3) knew of the
medical

restrictions

given

by

Dr.

Morales

at

FCI-Fairton.

(Defs’ Brief, ECF No. 44-1 at 11.)
Liberally construing the amended complaint, as the Court
must do, Plaintiff has sufficiently pled an Eighth Amendment
claim against Warden Shartle, Ms. Levi, and an unnamed counselor

12

and case manager,4 because they knowingly assigned work that was
beyond

Plaintiff’s

physical

capacity,

records they reviewed in his file.
¶¶40-50.)

as

established

by

the

(Am. Compl., ECF No. 38,

Compare Johnson v. Townsend, 314 F. App’x 436, 440

(3d Cir. 2008) (complaints of mental and physical exhaustion did
not bring work assignment within Eighth Amendment’s proscription
against

cruel

prisoner

was

and

unusual

knowingly

punishment

assigned

absent

work

indication

that

was

beyond

that
his

physical strength or caused undue pain).
4.

Eighth Amendment Inadequate Medical Care Claims

Defendants argue that Plaintiff fails to state an Eighth
Amendment

inadequate

medical

care

claim

because

he

does

not

allege with specificity that any particular individual was aware
of his sick calls and yet knew he had not received any medical
treatment.

(Defs’ Brief, ECF No. 44-1 at 12.)

Plaintiff

alleged

that

each

time

he

suffered

a

work

accident, he reported it to his counselor, his case manager, Ms.
Levi, and his food service supervisors.
38, ¶52.)
“Medical”

(Am. Compl., ECF No.

None of these defendants reported the accidents to
or

the

Safety

Manager,

and

they

prevented

and

conspired to prevent Plaintiff from seeing medical personnel and

4

Plaintiff will have to identify the counselor and case manager
by name before the Amended Complaint can be served on them, but
he may proceed against them as John Doe Counselor and John Doe
Case Manager at this time.
13

reporting his accident to the Safety Manager.
57.)

(Id., ¶¶53, 56,

Plaintiff’s injuries were visible, apparent and serious

enough

to

require

intentional

delay

medical
in

attention.

providing

(Id.,

Plaintiff

¶54.)

medical

The

attention

caused him to suffer permanent loss and affected several of his
life-long handicaps.

(Id., ¶55.)

Plaintiff filed “Sick Calls”

regarding his injuries, using the normal procedure, but he was
not seen until months later, when a dentist noted the injury to
his jaw.

(Id., ¶58.)

Plaintiff’s claim that the defendants conspired to prevent
him from seeing medical personnel is devoid of any supporting
factual allegations.

It is also contrary to his allegation that

he followed the normal procedure of Sick Call.
Plaintiff has not identified to whom he addressed his Sick
Call requests or who delayed scheduling a medical appointment or
why.

Therefore,

this

Bivens

claim

is

dismissed

without

prejudice.
5.

Eighth Amendment Conditions of Confinement Claim

For his conditions of confinement claim, Plaintiff alleges
that while he was in administrative segregation, he complained
to

the

warden,

assistant

wardens,

a

captain,

Ms.

Levi,

counselors, case managers and the duty officer that he had to
sleep on the floor with only two sheets and a blanket (Am.
Compl.,

ECF

No.

38,

¶59.)
14

Defendants

admitted

the

administrative

segregation

could be done.

unit

(Id., ¶60.)

was

overcrowded

and

nothing

Plaintiff was bitten by ants and

roaches while sleeping on the floor, and Defendants knew about
this problem.

(Id., ¶¶61, 62, 64.)

Plaintiff was treated for

his insect bites, but he did not get a mattress.
The
subject

conditions
to

scrutiny

under
under

which
the

a

prisoner

Eighth

(Id., ¶64.)
is

confined

Amendment.

Farmer

are
v.

Brennan, 511 U.S. 825, 832 (1994) (citing Helling v. McKinney,
509 U.S. 25, 31 (1993)).

“[P]rison officials must ensure that

inmates receive adequate food, clothing, shelter, and medical
care, and must “take reasonable measures to guarantee the safety
of the inmates.”

Id. (quoting Hudson v. Palmer, 468 U.S. 517,

526–527 (1984)).
[A] prison official cannot be found liable
under the Eighth Amendment for denying an
inmate humane conditions of confinement
unless the official knows of and disregards
an excessive risk to inmate health or
safety; the official must both be aware of
facts from which the inference could be
drawn that a substantial risk of serious
harm exists, and he must also draw the
inference.
Id. at 837.

“[E]xtreme deprivations are required to make out a

conditions-of-confinement claim.”
1, 8 (1992).

Hudson v. McMillian, 503 U.S.

“[O]nly those deprivations denying ‘the minimal

civilized measure of life's necessities’ are sufficiently grave
to form the basis of an Eighth Amendment violation.”

15

Id. at 9

(quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991) (quoting
Rhodes v. Chapman, 452 U.S. 337, 347 (1981) (citation omitted).
The

critical

whether

issue

the

prisoner.

for

alleged

Eighth

Amendment

overcrowding

purposes
somehow

has

.

.

.

“is

harmed

the

Lindsey v. Shaffer, 411 F. App’x 466, 468 (3d Cir.

2011) (per curiam) (citing Rhodes, 452 U.S. at 347-50 (1981)).
Temporarily sleeping on the floor without a mattress does
not constitute a deprivation of a minimal civilized measure of
life's necessities.

See Adderly v. Ferrier, 419 F. App’x 135,

139 (3d Cir. 2011) (deprivation of clothing, toiletries, legal
mail, pillow, mattress and shower for seven days was harsh but
not a deprivation of the minimal civilized measure of life’s
necessities.)

Furthermore,

exposure

to

an

insect

or

rodent

infestation for a short period of time does not generally pose a
substantial risk to inmate health or safety.
Bosher,

Civ.

(collecting

No.

10-1505

cases).

(RBK),

Therefore,

the

2011

WL

Court

See Walters v.
252954,

will

at

*4

dismiss

this

identify

any

Eighth Amendment conditions of confinement claim.
6.

Deprivation of Property

Defendants

contend

Plaintiff

did

not

individuals who were responsible for his property loss, nor did
he

provide

remedy

was

sufficient
inadequate.

facts

to

(Defs’

establish
Brief,

ECF

that
No.

any
44-1

available
at

13.)

“[D]eprivation of property by a [government] employee does not
16

constitute a violation of the procedural requirements of the Due
Process

Clause

of

the

Fourteenth

Amendment

if

a

meaningful

postdeprivation remedy for the loss is available.”

Hudson v.

Palmer, 468 U.S. 517, 533 (1984).
Plaintiff alleges that he timely and properly followed the
procedures for seeking a remedy for his property loss but the
defendants have not followed their own procedures because they
never responded to his grievances.
¶¶66-78.)

(Am. Compl, ECF No. 38,

Additionally, Plaintiff identified that it was the

second shift officer on duty on March 27, 2012, and the FCIFairton ICS and R&D officers who were personally involved in his
property loss, by failing to secure his property, and forward it
to his new address.

(Id., ¶¶91-92.)

Accepting his allegations

as true, Plaintiff has stated a Bivens claim for violation of
his due process rights based on loss of his property.
Monroe

v.

Beard,

deprivation

remedy

536

F.3d

was

198,

210

meaningful

(3d
where

Cir.

Compare

2008)

(post-

“defendants

gave

plaintiffs three opportunities to review materials and receive
back approved, non-contraband items.”)
7.

Failure to Supervise and Failure to Train

Defendants contend that Plaintiff’s claims of supervisory
liability are nothing more than conclusory allegations that fail
to identify a specific supervisor and his/her involvement in a
constitutional violation.

(Defs’ Brief, ECF No. 44-1 at 14.)
17

Plaintiff alleges Defendants “created gross violations of
the procedural safeguards required of each.”
No. 38, ¶81.)

(Am. Compl., ECF

He further states:

The facts, claims and evidence show a clear
pattern of constitutional violations by
untrained employees, and officials, who[se]
procedural
defects
or
inactions
are
ordinarily necessary to ensure the process
is fair, complete and by policy. There was
a deliberate indifference to their legal
duties, duties to follow (all) procedures
timely.
(Id.,

¶84.)

“Defendants

(unspecified)

failed

to

respond

to

Plaintiff’s administrative tort claims filed with the FBOP, U.S.
Justice Dept. and United States of America.”
First,

inmates

do

not

have

a

(Id., ¶3A.)

constitutionally

right to the prison grievance process.

protected

Burnside v. Manor, 138

F. App’x 414, 416 (3d Cir. 2005) (citing Flick v. Alba, 932 F.2d
728, 729 (8th Cir. 1991).
the

failure

of

the

Second, Plaintiff was not injured by

appropriate

agencies

to

respond

to

his

administrative tort claims under the FTCA, because the statute
provides that if a claimant does not receive a response within
six months, the claimant may treat the claim as denied, and
bring the claim in a district court.

28 U.S.C. § 2675(a).

Third, Plaintiff’s claim of failure to train or supervise is
otherwise factually deficient.

See Castillo-Perez v. City of

Elizabeth, Civ. Action No. 11-6958(KM), 2014 WL 1614845, at *7
(legal

boilerplate,

without

identifying
18

a

specific

policy

or

custom or manner in which training fell short, fails to state a
§ 1983 claim.)

Therefore, the Court will dismiss Plaintiff’s

Bivens claims for failure to train or supervise.
III. CONCLUSION
For the reasons discussed above, Defendants’ Partial Motion
to Dismiss the Amended Complaint (ECF No. 44) is granted in part
and denied in part.

Plaintiff may add the United States as a

Defendant to his FTCA claim for failure to provide him with a
bed/mattress; Plaintiff’s Bivens claims against the BOP Director
and David Martinez and Mr. Cruz are dismissed with prejudice for
failure to state a claim; Plaintiff’s Eighth Amendment claims
against Warden Shartle, Ms. Levi, John Doe Counselor and John
Doe Case Manager for assigning him work that was beyond his
medical restrictions may proceed; Plaintiff’s Eighth Amendment
claims for delay in adequate medical care are dismissed without
prejudice

for

failure

Amendment

conditions

to

of

state

a

claim;

confinement

claim

Plaintiff’s
is

Eighth

dismissed

with

prejudice for failure to state a claim; Plaintiff’s Due Process
claim for loss of property may proceed; and Plaintiff’s claims
of

supervisory

liability

and

failure

to

train

without prejudice for failure to state a claim.

An appropriate order follows.

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are

dismissed

Dated:

March 23, 2017
s/Renée Marie Bumb__________
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

20