ABDUL-HAKEEM v. ANGUD et al
OPINION. Signed by Judge Renee Marie Bumb on 3/22/2017. (dmr)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
M. ANGUD, et al.,
CIV. ACTION NO. 16-548 (RMB)
RENÉE MARIE BUMB, U.S. District Judge
Plaintiff is a prisoner confined in the Federal Correctional
Institution in Fairton, New Jersey (“FCI-Fairton”). He initiated
this action by filing a civil rights complaint on February 1, 2016,
against medical staff and other employees at FCI-Fairton.
The Court granted Plaintiff in forma pauperis status, but
dismissed his Complaint without prejudice pursuant to 28 U.S.C. §
1915(e)(2)(B) and § 1915A.
(ECF Nos. 4, 5.)
Plaintiff filed a
[First] Amended Complaint on April 25, 2016 (ECF No. 7), which this
Court also dismissed without prejudice, pursuant to 28 U.S.C. §
1915(e)(2)(B) and § 1915A.
(ECF Nos. 10, 11.)
This matter comes before the Court upon Plaintiff’s filing of
a Second Amended Complaint. (Second Am. Compl., ECF No. 12.) He brings
injunctive relief for medical malpractice. (Id.)
The Court now reviews Plaintiff’s Second Amended Complaint, as
required by 28 U.S.C. § 1915(e)(2)(b) and § 1915A.
The Court must
dismiss any claims that are: (1) frivolous or malicious; (2) fail
to state a claim on which relief may be granted; or (3) seek monetary
relief against a defendant who is immune from such relief. 28 U.S.C.
§ 1915(e)(2)(B); 28 U.S.C. § 1915A.
The Second Amended Complaint
Plaintiff brings an FTCA claim for medical malpractice against
Dr. Morales and unidentified “Fairton Medical Staff.” (Second Am.
administrative claim on June 29, 2016, when his claim was denied.
(Id., at 1.)
Plaintiff complained of right foot pain to Fairton
Medical Staff in October 2011. (Id., ¶1.)
fragments in his foot.
An x-ray showed bullet
The “URC” approved a podiatry
Approximately one year later, Dr. Morales denied Plaintiff his
podiatry consultation for non-medical reasons, knowing Plaintiff had
a bullet in his foot.
On December 15, 2015, an orthopaedic specialist reviewed
Plaintiff’s x-ray and recommended immediate surgery to remove the
bullet from his foot.
Since 2013, Plaintiff advised Dr.
Morales and Fairton Medical Staff that he was in extreme pain when
(Id., ¶¶6, 7.)
They refused to allow Plaintiff to see
a podiatrist until October 2015, and insisted on continuing a course
Plaintiff contends the delay in providing evaluation by a specialist
and failure to remove the bullet from his foot constitute medical
malpractice by Dr. Morales and Fairton Medical Staff.
Standard of Review
A pleading must contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct
Id. (quoting Twombly, 550 U.S. at 556.)
“[A] court must accept as true all of the allegations contained
in a complaint.” Id.
A court need not accept legal conclusions as
Legal conclusions, together with threadbare recitals of
the elements of a cause of action, do not suffice to state a claim.
Thus, “a court considering a motion to dismiss can choose to
begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.”
“While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.”
a complaint can be remedied by an amendment, a district court may
not dismiss the complaint with prejudice, but must permit the
Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d
Plaintiff asserts jurisdiction under the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 et seq. Claims are cognizable
under the FTCA if they are:
 against the United States,  for money
damages, . . .  for injury or loss of
property, . . .  caused by the negligent or
wrongful act or omission of any employee of the
[Federal] Government,  while acting within
the scope of his office or employment,  under
circumstances where the United States, if a
private person, would be liable to the claimant
in accordance with the law of the place where
the act or omission occurred.
Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 477 (1994) (quoting
28 U.S.C. § 1346(b)).
Plaintiff has not named the United States as
a defendant, and the United States is the only proper defendant to
an FTCA claim.
CNA v. United States, 535 F.3d 132, 138 n.2 (3d Cir.
2008). Therefore, the Court will dismiss Plaintiff’s FTCA claim
In any action seeking tort damages for personal injury against
administrative remedies. 28 U.S.C. § 2675(a) provides:
An action shall not be instituted upon a claim
against the United States for money damages for
injury or loss of property or personal injury
or death caused by the negligent or wrongful act
or omission of any employee of the Government
while acting within the scope of his office or
employment, unless the claimant shall have
first presented the claim to the appropriate
Federal agency and his claim shall have been
finally denied by the agency in writing and sent
by certified or registered mail.
This a jurisdictional requirement, and if the claim has not been
properly exhausted, the court must dismiss it.
McNeil v. United
States, 508 U.S. 106, 112 (1993)).
Plaintiff raised an FTCA claim in his original complaint. (ECF
No. 3, at 2).
He did not name the United States as a defendant, and
he did not allege that he exhausted his administrative remedies for
an FTCA claim.
This Court dismissed the claim without prejudice.
(Opinion, ECF No. 4 at 6; Order, ECF No. 5.)
For jurisdictional purposes, an FTCA claim must be raised only
after it is exhausted.
McNeil, 508 U.S. at 113.
Thus, a district
court lacks jurisdiction over an FTCA claim where the court earlier
dismissed the claim for lack of jurisdiction, and the plaintiff later
amended the complaint after exhausting administrative remedies.
See Malouf v. Turner, 814 F.Supp.2d 454, 460 (D.N.J. 2011) (citing
Hoffenberg v. Provost, 154 F. App’x 307, 310 (3d Cir. 2005); Duplan
v. Harper, 188 F.3d 1195, 1199 (10th Cir. 1999) (“as a general rule,
a premature ‘[FTCA] complaint cannot be cured through amendment, but
instead, plaintiff must file a new suit’” (quoting Sparrow v. USPS,
825 F. Supp. 252, 255 (E.D. Cal. 1993)).
FTCA claim for lack of jurisdiction.
The Court will dismiss the
Plaintiff may bring his FTCA
claim, against the United States as the sole defendant, in a new
action, subject to the statute of limitations.
For the reasons discussed above, in the accompanying Order filed
herewith, the Court will dismiss the Second Amended Complaint for
lack of jurisdiction.
s/Renée Marie Bumb_________
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
DATED: March 22, 2017
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