DOTY v. UNITED STATES OF AMERICA et al

Filing 29

OPINION FILED. Signed by Judge Noel L. Hillman on 6/15/16. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
:
:
Plaintiff,
:
:
v.
:
:
UNITED STATES OF AMERICA, et al., :
:
Defendants.
:
___________________________________:
ALFRED DOTY,

Civ. No. 15-3016 (NLH)
OPINION

APPEARANCES:
Robert M. Miele, Esq.
Burke, Miele & Golden, LLP
40 Matthews St.
Suite 209
P.O. Box 216
Goshen, NY 10924,
Counsel for Plaintiff
David Vincent Bober, Esq.
Office of the United States Attorney
402 E. State Street
Room 430
Trenton, NJ 08608
Counsel for Defendants

HILLMAN, District Judge
Plaintiff Alfred Doty, an inmate currently confined at the
Federal Correctional Institution (“FCI”) in Fort Dix, New
Jersey, filed this civil rights action pursuant to 42 U.S.C. §
1983 and paid the filing fee. (ECF No. 1).

On August 3, 2015,

Plaintiff filed an Amended Complaint. (ECF No. 8).

On November

16, 2015, Defendants filed a Motion to Dismiss in lieu of an

Answer. (ECF No. 20).

Plaintiff filed a Memorandum in

Opposition (ECF No. 25) and Defendants filed a Reply brief (ECF
No. 28).

The matter is now fully briefed.

The Court has

considered the submissions of the parties and decides this
matter without oral argument pursuant to Federal Rule of Civil
Procedure 78.

For the reasons set forth below, Defendants’

motion will be GRANTED and the Complaint will be DISMISSED
WITHOUT PREJUDICE.
I.

BACKGROUND

In his Amended Complaint, Plaintiff alleges that on and
before August 24, 2013, he was incarcerated at FCI Fort Dix and
housed in Unit 5711.

Plaintiff states that another inmate at

FCI Fort Dix (“Unknown Inmate”) was confined to a different
housing unit at that time.

Despite being housed in a different

unit, Plaintiff states that on August 24, 2013, Unknown Inmate
entered Unit 5711 and assaulted Plaintiff.

Plaintiff states

that he suffered significant injuries and he alleges that the
assault occurred as a direct and proximate result of the
negligence of the Defendants.

Specifically, Plaintiff asserts

that Defendants were negligent by: (1) “le[aving] the front door
unlocked in between ten minute moves”; (2) “fail[ing] to monitor
the housing unit while the door was unlocked”; (3) “fail[ing] to
have sufficient guards stations in and near the unlocked door”;

2

and (4) “fail[ing] to confine Unknown Inmate . . . .” (Am.
Compl. 4, ECF No. 8).
Plaintiff further asserts that Defendants acted with
deliberate indifference to Plaintiff’s health and safety and, in
doing so, violated his Eighth Amendment rights.

Finally,

Plaintiff contends that Defendants are liable to him for their
failure to train, supervise, control and discipline the
individual correctional officers.

Plaintiff seeks actual and

exemplary damages in the amount of $5,000,000.00.
In lieu of filing an Answer, Defendants have filed a Motion
to Dismiss. (ECF No. 20).

First, Defendants assert that

Plaintiff’s negligence claim, brought under the Federal Tort
Claims Act (“FTCA”), is barred by the discretionary function
exception to the FTCA.

Defendants further assert that Plaintiff

has failed to provide sufficient factual allegations to set
forth a claim under Bivens.
I.

DISCUSSION

A. Timeliness
In a footnote in Plaintiff’s Memorandum in Opposition,
Plaintiff asserts that Defendants’ motion to dismiss is
untimely. (Mem. In Opp. 8 n.1, ECF No. 25).
that the court reject Defendants’ motion.

Plaintiff requests
In their Reply

submission, Defendants concede that their motion is untimely.
Specifically, Defendants state that any responsive pleading was
3

due on October 16, 2015; however, the instant motion was not
filed until November 16, 2016.

Defendants describe the delay as

an inadvertent oversight and state that it was “not an attempt
to deliberately disregard the Court’s order.” (Reply 17, ECF No.
28).

Defendants request that the Court grant a nunc pro tunc

extension of time and consider the motion on the merits.
Plaintiff did not seek the entry of default after
Defendants missed the October 16, 2015 deadline, nor did
Plaintiff — aside from a passing request in a footnote — move to
strike the motion to dismiss after it had been untimely filed.
Cf. Martinez v. Colombian Emeralds, Inc., No. 2007-06, 2009 WL
578547, at *35 n.11 (V.I. Mar. 4, 2009) (holding that lower
court was obligated to resolve motions for entry of default
prior to considering subsequently-filed motions to dismiss).
Further, as Defendants point out, Plaintiff does not allege any
prejudice that would result from the Court’s consideration of
Defendants’ motion on the merits.

Finally, this Court notes

that the Third Circuit has expressed a preference to decide
cases on the merits. See United States v. $55,518.05 in United
States Currency, 728 F.2d 192, 194–95 (3d Cir. 1984); Hritz v.
Woma Corp., 732 F.2d 1178, 1181 (3d Cir. 1984) (“[W]e have
repeatedly stated our preference that cases be disposed of on
the merits whenever practicable.”); Smith v. Riley, No. 14-7247,
2015 WL 4615913, at *8 (D.N.J. July 31, 2015).
4

Therefore, the Court will excuse the inadvertent
untimeliness of Defendants’ motion and consider it on the
merits. See, e.g., Brown v. Rectenwald, No. 1:12-CV-1135, 2013
WL 1313919, at *2 (M.D. Pa. Mar. 28, 2013), aff’d sub nom. Brown
v. Recktenwald, 550 F. App'x 96 n.1 (3d Cir. 2013) (considering
untimely motion on the merits); Seymour v. Life Care Ret.
Communities, Inc., No. 09-0444, 2009 WL 2007056, at *1 n.1 (W.D.
Pa. July 9, 2009) (noting that defendant’s motion was untimely
and nevertheless considering it on the merits).
B. Rule 12(b)(1) - Subject Matter Jurisdiction
In their motion, Defendants assert that this Court lacks
subject matter jurisdiction over Plaintiff’s claims. (Mot. 14,
ECF No. 20-1).

Pursuant to the Federal Rule of Civil Procedure

12(b)(1), a claim can be dismissed for “lack of jurisdiction
over the subject matter.”

There are two types of Rule 12(b)(1)

motions: one which presents a facial challenge, and one which
presents a factual challenge. See Constitution Party of
Pennsylvania v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014);
Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3 (3d Cir. 2006)
(citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884,
891 (3d Cir. 1977)).

A “facial attack” assumes that the

allegations of the complaint are true, but contends that the
pleadings fail to present an action within the court’s
jurisdiction. Mortensen, 549 F.2d at 891.
5

“When considering a

facial attack, ‘the Court must consider the allegations of the
complaint as true,’ and in that respect such a Rule 12(b)(1)
motion is similar to a Rule 12(b)(6) motion.” Petruska, 462 F.3d
at 302 n.3 (citing Mortensen, 549 F.2d at 891).
By contrast, when an attack is a factual attack,
there is substantial authority that the trial court is
free to weigh the evidence and satisfy itself as to
the existence of its power to hear the case. In
short, no presumptive truthfulness attaches to
plaintiff’s allegations, and the existence of disputed
material facts will not preclude the trial court from
evaluating for itself the merits of jurisdictional
claims. Moreover, the plaintiff will have the burden
of proof that jurisdiction does in fact exist.
Mortensen, 549 F.2d at 891; see also Aichele, 757 F.3d at 358
(explaining differences between a facial and factual attack
under Rule 12(b)(1)).
1. Standard For Dismissal under 12(b)(1)
The precise form of the challenge under 12(b)(1) is
significant because, as set forth above, the standard of review
for a facial and factual attack “differs greatly.” Mortensen,
549 F.2d at 891.

Here, Defendants have not stated whether this

Rule 12(b)(1) motion is a facial or factual attack.

However,

given the facts of this case and its procedural posture, the
Court concludes that Defendants have asserted a facial attack
pursuant to FED. R. CIV. P. 12(b)(1).

As an initial matter, “[a]

factual jurisdictional proceeding cannot occur until plaintiff's
allegations have been controverted.” Mortensen, 549 F.2d at 892
6

n.17.

Because Defendants filed this Motion to Dismiss prior to

filing an Answer to the Complaint, it is considered a facial
challenge. See Constitution Party of Pennsylvania v. Aichele,
757 F.3d 347, 358 (3d Cir. 2014) (holding that a 12(b)(6) motion
filed prior to any answer was, “by definition, a facial
attack”); Kalick v. United States, 35 F. Supp. 3d 639, 644
(D.N.J. 2014), aff'd, 604 F. App'x 108 (3d Cir. 2015), cert.
denied, 136 S. Ct. 141, 193 L. Ed. 2d 106 (2015) (citing CardioMed. Associates, Ltd. v. Crozer-Chester Med. Ctr., 721 F.2d 68,
75 (3d Cir. 1983) (“A motion to dismiss for lack of subject
matter jurisdiction pursuant to FED. R. CIV. P. 12(b)(1) which is
filed prior to answering the complaint is considered a ‘facial
challenge’ to the court’s subject matter jurisdiction.”)).
Moreover, “[a] factual attack requires a factual dispute,
and there is none here.” Aichele, 757 F.3d at 358.

Defendants

do not dispute any of the allegations of the Complaint.
Instead, they assert that Plaintiff’s claims, as pled, are
precluded by the discretionary function exception to the FTCA.
Because the instant motion pursuant to Rule 12(b)(1) was
filed prior to an answer, this Court must “review only whether
the allegations on the face of the complaint, taken as true,
allege facts sufficient to invoke the jurisdiction of the
district court.” Licata v. U.S. Postal Serv., 33 F.3d 259, 260
(3d Cir. 1994); see also Kalick, 35 F. Supp. 3d at 644.
7

Essentially, “a facial attack calls for a district court to
apply the same standard of review it would use in considering a
motion to dismiss under Rule 12(b)(6) . . . .” Aichele, 757 F.3d
at 358; see also Pitman v. Ottehberg, No. 10-2538, 2015 WL
179392, at *3 (D.N.J. Jan. 14, 2015) (“[T]he Court must accept
all well-pleaded allegations in the complaint as true and view
them in the light most favorable to the plaintiff.”) (citing
Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005) and Phillips
v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008)).
2. FTCA Claims
The United States has sovereign immunity except where it
consents to be sued. United States v. Bormes, 133 S. Ct. 12, 16,
184 L. Ed. 2d 317 (2012); United States v. Mitchell, 463 U.S.
206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983).

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, 114 S.Ct. 996, 127 L.Ed.2d 308 (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 gives a district court

exclusive jurisdiction over civil actions:

8

[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, 83 S.Ct.
1850, 10 L.Ed.2d 805 (1963).
The FTCA, however, does not encompass all torts committed
by federal government employees.

Rather, the “discretionary

function” exception provides that the provisions of the FTCA
shall not apply to any claim “based upon the exercise or
performance or 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.” 28 U.S.C. § 2680(a).

To determine whether

the discretionary function exception applies, a court must
determine (1) “whether the act involves an ‘element of judgment
or choice,” and (2), if so, “‘whether that judgment is of the
kind that the discretionary function exception was designed to
shield.’” Mitchell v. United States, 225 F.3d 361 (3d Cir. 2000)
(quoting United States v. Gaubert, 499 U.S. 315, 322, 111 S. Ct.
9

1267, 113 L.Ed.2d 335 (1991)).

More specifically, with respect

to the second requirement, the discretionary function exception
“protects only governmental actions and decisions based on
considerations of public policy.” Berkovitz v. United States,
486 U.S. 531, 537, 108 S. Ct. 1954, 100 L.Ed.2d 531 (1988). See
generally S.R.P. ex rel. Abunabba v. United States, 676 F.3d 329
(3d Cir. 2012).
In this case, the parties disagree regarding the conduct at
issue and, as a corollary, the application of the discretionary
exception doctrine.

Namely, Defendants characterize the conduct

at issue as a general failure to protect Plaintiff from assault.
Defendants rely on a line of cases which have determined that
although federal statute requires the Bureau of Prisons (“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.”
Thrower v. U.S., 528 F. App'x 108, 111 (3d Cir. 2013) (citing
Mitchell, 225 F.3d at 363 and Cohen v. United States, 151 F.3d
1338, 1342 (11th Cir. 1998)); see also Rinaldi v. United States,
460 F. App'x 80, 81–82 (3d Cir. 2012).

Accordingly, Defendants

contend that the discretionary function applies and that
Plaintiff cannot state a claim for negligent failure to protect
under the FTCA.

10

Plaintiff, however, provides a more narrow interpretation
of the conduct at issue, and relies on the holding in Gray v.
United States, 486 F. App'x 975, 978 (3d Cir. 2012).

In Gray, a

plaintiff was attacked by another inmate with a razor and
claimed that the prison staff defendant violated a nondiscretionary policy which required prison staff to collect
razors at the end of a shower.

Because a policy was in place

which specifically prescribed a course of action for prison
staff to follow, the Third Circuit concluded that “the task of
collecting razors [did] not involve an element of judgment or
choice and the discretionary function exception [was]
inapplicable.” Gray, 486 F. App'x at 978.
Here, by analogy, Plaintiff states that there is a
mandatory policy in place which bars inmates from entering
certain areas.

Plaintiff asserts that Defendants had no

discretion to permit Unknown Inmate from entering Unit 5711
(where Plaintiff was assaulted); therefore, the conduct at issue
in this case did not involve an element of choice and the
discretionary function is inapplicable.

Plaintiff’s argument is

misplaced.
As Defendants point out, the policy 1 described by Plaintiff
“prohibit[s] inmates from entering unauthorized areas.” (Mem. In

1

Plaintiff’s Amended Complaint makes only a vague reference to
“FCI Fort Dix and Federal Bureau of Prisons policy” (Am. Compl.
11

Opp’n 13, ECF No. 25); see also (Id. at 15) (“Here, a specific
rule or policy prohibited inmates from entering housing units
they were not assigned to.”).

Thus, unlike the policy relied on

in Gray — which imposed a mandatory obligation on BOP employees
— the policy relied on in this case places a mandatory
restriction on inmates.

Accordingly, Plaintiff asks this Court

to frame the conduct at issue as the BOP’s non-discretionary
duty to prevent inmates from violating BOP policy.

To do so

would produce absurd results in that every time an inmate
engaged in an act prohibited by BOP policy, BOP officials could
be held liable.
Further, Plaintiff’s attempt to distinguish the facts of
this case from the cases cited by Defendants is without merit.
Contrary to Plaintiff’s assertions, here, “[n]o federal statute,
regulation, or policy required the BOP to take a particular
course of action to ensure [Plaintiff’s] safety from attacks by
other inmates.” Donaldson v. United States, 281 F. App'x 75, 77
(3d Cir. 2008).

Although Plaintiff alleges that Defendants were

negligent by (1) “le[aving] the front door unlocked in between
ten minute moves”; (2) “fail[ing] to monitor the housing unit

3, ECF No. 8), and does not elaborate on the substance of that
policy. However, in his Opposition to Defendants’ motion,
Plaintiff clarifies his argument and describes in detail the
policy which he asserts was violated by Defendants’ conduct.
12

while the door was unlocked”; (3) “fail[ing] to have sufficient
guards stations in and near the unlocked door”; and (4)
“fail[ing] to confine Unknown Inmate” (Am. Compl. 4, ECF No. 8),
neither the Amended Complaint, nor any of Plaintiff’s subsequent
filings, refers to any federal statute, regulation, or policy
requiring the BOP to take these specific courses of action.
In other words, Plaintiff cites to no source of law or
policy which mandated that prison staff lock the door in between
ten minute moves, called for continuous monitoring of the
housing door, required a certain number of guard stations near
the housing door, or required that prison staff confine Unknown
Inmate in a particular manner.

As set forth above, Plaintiff’s

reliance on the Inmate Handbook policy is misplaced because that
policy precludes inmates from engaging in certain behavior, as
opposed to affirmatively prescribing a particular action on the
part of BOP employees.

Defendants cannot be held liable simply

because an inmate failed to adhere to a policy.
Therefore, based on the information set forth in the
Amended Complaint, the conduct at issue here is more
appropriately framed as a general duty to provide for the
protection and safekeeping of inmates, and the implementation of
these duties is left to BOP officials’ discretion. See Thrower,
528 F. App'x at 111.

As a result, the discretionary function

applies and Plaintiff cannot state a claim for negligent failure
13

to protect under the FTCA.

This claim will be dismissed. See,

e.g., id. (affirming district court’s dismissal of plaintiff’s
FTCA claim alleging negligence in failing to protect); Sargent
v. United States, 620 F. App'x 69, 71-72 (3d Cir. 2015) (same)
(collecting cases); Anderson v. United States, No. 14-1411, 2015
WL 93786, at *2 (D.N.J. Jan. 7, 2015) (granting motion to
dismiss for lack of jurisdiction because discretionary function
exception applied); Acosta v. Schultz, No. 12-6614, 2014 WL
886888, at *10 (D.N.J. Mar. 6, 2014) (dismissing claim for
negligent failure to protect under the FTCA)).
Having concluded that this Court lacks jurisdiction over
Plaintiff’s FTCA claim, the Court next addresses Defendants’
argument that Plaintiff’s Bivens 2 claim should be dismissed
pursuant to Rule 12(b)(6).
C. Rule 12(b)(6)
1. Standard For Dismissal under 12(b)(6)
When considering a motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6), a court must accept all well-

2

Pursuant to the Supreme Court’s recent decision in Simmons v.
Himmelreich, dismissal of a plaintiff’s FTCA claim does not bar
that plaintiff from filing suit against an individual employee
who is alleged to have violated his constitutional rights. No.
15-109, 2016 WL 3128838, at *2 (U.S. June 6, 2016) (“[W]here an
FTCA claim is dismissed because it falls within one of the
‘Exceptions,’ the dismissal signals merely that the United
States cannot be held liable for a particular claim; it has no
logical bearing on whether an employee can be liable instead.”).
14

pleaded allegations in the complaint as true and view them in
the light most favorable to the plaintiff. Evancho v. Fisher,
423 F.3d 347, 351 (3d Cir. 2005).

It is well settled that a

pleading is sufficient if it contains “a short and plain
statement of the claim showing that the pleader is entitled to
relief.” FED. R. CIV. P. 8(a)(2).

Under the liberal federal

pleading rules, it is not necessary to plead evidence, and it is
not necessary to plead all the facts that serve as a basis for
the claim. Bogosian v. Gulf Oil Corp., 562 F.2d 434, 446 (3d
Cir. 1977).

However, “[a]lthough the Federal Rules of Civil

Procedure do not require a claimant to set forth an intricately
detailed description of the asserted basis for relief, they do
require that the pleadings give defendant fair notice of what
the plaintiff’s claim is and the grounds upon which it rests.”
Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n.3,
104 S. Ct. 1723, 1725, 80 L. Ed. 2d 196 (1984) (quotation and
citation omitted).
A district court, in weighing a motion to dismiss, asks
“‘not whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the
claim.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8, 127
S. Ct. 1955, 1969, 167 L. Ed. 2d 929 (2007) (quoting Scheuer v.
Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90
(1974)); see also Ashcroft v. Iqbal, 556 U.S. 662, 684, 129 S.
15

Ct. 1937, 1952, 173 L. Ed. 2d 868 (2009) (“Our decision in
Twombly expounded the pleading standard for ‘all civil
actions'....”); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d
Cir. 2009) (“Iqbal ... provides the final nail-in-the-coffin for
the ‘no set of facts' standard that applied to federal
complaints before Twombly.”).
In reviewing a Rule 12(b)(6) motion, a court must only
consider the facts alleged in the pleadings, the documents
attached to or specifically referenced in the complaint if the
claims are based on those documents, and matters of judicial
notice. S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp.
Ltd., 181 F.3d 410, 426 (3d Cir. 1999); In re Bayside Prison
Litig., 190 F.Supp.2d 755, 760 (D.N.J. 2002); see also Winer
Family Trust v. Queen, 503 F.3d 319, 327 (3d Cir. 2007).

For

this reason, the Court will not consider the exhibits and
declarations submitted by the parties. 3
2. Bivens Claims
In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S.
388, 91 S. Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court
held that a violation of the Fourth Amendment by a federal agent

3

To the extent Plaintiff may assert that the Inmate Handbook
(Pl.’s Ex. A, ECF No. 24-1) provides support for his claims, the
Court notes that consideration of this document is not necessary
because, for purposes of this motion, this Court accepts as true
Plaintiff’s allegation that a policy exists which prohibits
inmates from entering certain areas.
16

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, 100 S.
Ct. 1468, 64 L.Ed.2d 15 (1980), and the Fifth Amendment, see
Davis v. Passman, 442 U.S. 228, 99 S. Ct. 2264, 60 L.Ed.2d 846
(1979).

But “the absence of statutory relief for a

constitutional violation does not necessarily mean that courts
should create a damages remedy against the officer responsible
for the violation.” Schreiber v. Mastrogiovanni, 214 F.3d 148,
152 (3d Cir. 2000) (citing Schweiker v. Chilicky, 487 U.S. 412,
108 S. Ct. 2460, 101 L.Ed.2d 370 (1988)).
Bivens actions are simply the federal counterpart to § 1983
actions brought against state officials who violate federal
constitutional or statutory rights. See Egervary v. Young, 366
F.3d 238, 246 (3d Cir. 2004), cert. denied, 543 U.S. 1049, 125
S. Ct. 868, 160 L.Ed.2d 769 (2005).

Both are designed to

provide redress for constitutional violations.

Thus, while the

two bodies of law are not “precisely parallel”, there is a
“general trend” to incorporate § 1983 law into Bivens suits. See
Chin v. Bowen, 833 F.2d 21, 24 (2d Cir. 1987).
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
17

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) (stating that under Section 1983 “an individual may bring
suit for damages against any person who, acting under color of
state law, deprives another individual of any rights,
privileges, or immunities secured by the United States
Constitution or federal law,” and that Bivens held that a
parallel right exists against federal officials); see also Corr.
Servs. Corp. v. Malesko, 534 U.S. 61, 66, 122 S. Ct. 515, 518,
151 L. Ed. 2d 456 (2001).
3. Failure-To-Protect Claims under Bivens
Under the Eighth Amendment, prison officials have a duty to
provide humane conditions of confinement, including adequate
personal safety. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.
Ct. 1970, 128 L.Ed.2d 811 (1994); Young v. Quinlan, 960 F.2d
351, 364 (3d Cir. 1992).

Accordingly, prison officials must

take reasonable measures “to protect prisoners from violence at
the hands of other prisoners.” Farmer, 511 U.S. at 833 (internal
quotations omitted).

“Being violently assaulted in prison is

simply ‘not part of the penalty that criminal offenders pay for
their offenses against society.’” Id. at 834 (quoting Rhodes v.
Chapman, 452 U.S. 337, 347, 101 S. Ct. 2392, 69 L.Ed.2d 59
(1981)).

18

To successfully state a failure-to-protect claim for
violation of the Eighth Amendment, as always, an inmate must
satisfy both the objective and subjective components of such a
claim.

The inmate must allege a deprivation which was

“sufficiently serious,” and that, in their actions or omissions,
prison officials exhibited “deliberate indifference” to the
inmate’s health or safety. See Farmer, 511 U.S. at 834; Wilson
v. Seiter, 501 U.S. 294, 305, 111 S. Ct. 2321, 115 L.Ed.2d 271
(1991); Beers–Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir.
2001); Nami v. Fauver, 82 F.3d 63, 67 (3d Cir. 1996).
In the context of a failure-to-protect claim, the inmate
must show that he is “incarcerated under conditions posing a
substantial risk of harm,” Farmer, 511 U.S. at 833, and that
prison officials knew of and disregarded the excessive risk to
inmate safety, id. at 837.

“A pervasive risk of harm may not

ordinarily be shown by pointing to a single incident or isolated
incidents, but it may be established by much less than proof of
a reign of violence and terror.” Riley v. Jeffes, 777 F.2d 143,
147 (3d Cir. 1985).

Deliberate indifference is more than a mere

lack of ordinary due care; however, it is a state of mind
equivalent to a reckless disregard of a known risk of harm.
Farmer, 511 U.S. at 834.

That is, not only must a prison

official be “aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists,” but the
19

official “must also draw the inference.” Farmer, 511 U.S. at
837.

“Whether ... prison official[s] had the requisite

knowledge of a substantial risk is a question of fact subject to
demonstration in the usual ways, including inference from
circumstantial evidence, and a fact finder may conclude that ...
prison official[s] knew of a substantial risk from the very fact
that the risk was obvious.” Farmer, 511 U.S. at 842.
Here, Plaintiff asserts that Defendants acted with
“deliberate indifference to the Plaintiff’s health and safety by
permitting an inmate with a known history of harassment of other
inmates to enter into a housing unit where he did not reside and
be left alone with other inmates.” (Am. Compl. 5, ECF No. 8).
In their motion to dismiss, Defendants assert that Plaintiff has
failed to allege specific facts which establish that Defendants
had actual knowledge of an excessive risk to inmate safety in
advance of the assault. (Mot. 27, ECF No. 20-1).

Accordingly,

Defendants contend that Plaintiff’s Bivens claims should be
dismissed.

The Court agrees.

The Court notes that, in his Memorandum in Opposition,
Plaintiff contends that the Amended Complaint “sets forth
specific facts that establish [the Defendants’] individual
actual knowledge.” (Mem. In Opp. 23, ECF No. 25).

However, the

Court has thoroughly reviewed the Amended Complaint and finds it
to be completely devoid of any specific factual allegations.
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Rather, the portion of the Amended Complaint devoted to
Plaintiff’s Bivens claims is merely a collection of conclusory
allegations.

Specifically, Plaintiff states the following:

21. The Fort Dix Defendants’ actions constituted
cruel and unusual punishment, as they showed
deliberate indifference to the Plaintiff’s health and
safety by permitting an inmate with a known history of
harassment of other inmates to enter into a housing
unit where he did not reside and be left alone with
other inmates.
22. The Fort Dix Defendants knew of the substantial
risk of serious harm to inmates in Unit 5711 from
leaving the door unlocked, failing to monitor entry
into Unit 5711 and failing to properly monitor their
inmates.
23. The Fort Dix Defendants purposely ignored the
known risks associated with leaving the door unlocked
and not monitoring entry into Unit 5711 to the
detriment of the health and safety of the Plaintiff.
24. The Fort Dix Defendants knew that Unknown Inmate
was dangerous and there was a substantial risk that he
would cause serious harm to other inmates.
25. The Fort Fix [sic] Defendants knew that Unknown
Inmate had on prior occasions been in prohibited and
unauthorized areas including, but not limited to, Unit
5711, but failed to monitor him.
26. The Fort Dix Defendants purposefully ignored the
known risks associated with Unknown Inmate to the
detriment of the health and safety of the Plaintiff.
. . .
b. That the Defendants either by affirmative acts or
omissions, had in place policies, practices,
procedures and/or guidelines that violated or led to
the violation of the rights of Plaintiff Doty.
c. That Defendants are further liable for their
failure to train, instruct, supervise, control and

21

discipline the individual correction officers on a
continuing basis . . .
(Am. Compl. 5-6, ECF No. 8).
Plaintiff does not offer any factual support for the
allegations set forth above.

He does not mention the specific

Defendants by name, nor does he describe how or when they
acquired actual knowledge of a risk to Plaintiff.

He does not

describe the policies, practices, procedures or guidelines which
he alleges violated his rights, and he does not explain
precisely how or why he believes that the correctional officers’
training, instruction, supervision, control and discipline was
deficient.

Further, Plaintiff does not allege any action, or

inaction, on the part of any of the individual Defendants which
would explain how they acted with deliberate indifference or
otherwise violated Plaintiff’s rights.

Aside from their alleged

status as employees of the BOP, it is unclear how, or if, these
Defendants are personally involved in the incident described by
Plaintiff.
“[A]lthough a court will accept well-pleaded allegations as
true for the purposes of the motion, it will not accept bald
assertions, unsupported conclusions, unwarranted inferences, or
sweeping legal conclusions cast in the form of factual
allegations.” Estate of Dasaro v. Cnty. of Monmouth, No. 147773, 2015 WL 5771606, at *3 (D.N.J. Sept. 30, 2015) (citing

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Iqbal, 556 U.S. at 678–79).

Accordingly, Plaintiff’s claims

under Bivens are dismissed without prejudice for failure to
state a claim.
V. CONCLUSION
For the reasons set forth above, Defendants’ Motion to
Dismiss (ECF No. 20) will be GRANTED and the Complaint will be
dismissed.

Because it is possible that Plaintiff may be able to

amend or supplement his complaint with facts sufficient to
overcome the deficiencies noted herein, this dismissal is
without prejudice. See Denton v. Hernandez, 504 U.S. 25, 34, 112
S. Ct. 1728, 118 L.Ed.2d 340 (1992) (holding that where a
complaint can be remedied by an amendment, a district court may
not dismiss the complaint with prejudice, but must permit the
amendment).

Plaintiff shall be given leave to file, within 45

days, an application to re-open accompanied by a proposed
amended complaint. 4
An appropriate Order follows.
____s/ Noel L. Hillman____
NOEL L. HILLMAN
United States District Judge

Dated: June 15, 2016
At Camden, New Jersey
4

Plaintiff should note that when an amended complaint is filed,
it supersedes the original and renders it of no legal effect,
unless the amended complaint specifically refers to or adopts
the earlier pleading. See West Run Student Housing Associates,
LLC v. Huntington National Bank, 712 F.3d 165, 171 (3d Cir.
2013)(collecting cases); see also 6 CHARLES ALAN WRIGHT ARTHUR R.
MILLER, FEDERAL PRACTICE AND PROCEDURE § 1476 (3d ed. 2008). To avoid
confusion, the safer practice is to submit an amended complaint
that is complete in itself. Id.
23