JAMISON v. HOLLINGSWORTH et al

Filing 5

OPINION. Signed by Judge Noel L. Hillman on 3/12/2018. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
:
:
Plaintiff,
:
:
v.
:
:
WARDEN HOLLINGSWORTH, et al., :
:
Defendants.
:
_____________________________ :
DEMETRIUS JAMISON,

Civ. No. 16-9137 (NLH)(KMW)
OPINION

APPEARANCE:
Demetrius Jamison
Fairton Federal Correctional Institution
Fairton, NJ 08320
Plaintiff Pro se
HILLMAN, District Judge
The plaintiff, Demetrius Jamison, is a federal prisoner
incarcerated at Fairton Federal Correctional Institution in
Fairton, New Jersey.

He is proceeding pro se seeking monetary

relief for alleged violations of his rights pursuant to the
Fifth Amendment and Eighth Amendment, the Federal Tort Claims
Act and Bivens v. Six Unknown Named Agents of the Federal Bureau
of Narcotics, 403 U.S. 388 (1971). (ECF No. 1 at 11).
Plaintiff submitted an application to proceed in forma
pauperis on December 12, 2016.

(ECF No. 1).

In an order dated

December 30, 2016, the Court denied Plaintiff’s application to

1

proceed in forma pauperis.

(ECF No. 4).

Plaintiff subsequently

paid the filing fee on January 17, 2017.
At this time, the Court must screen the Complaint to
determine whether it should be dismissed as frivolous or
malicious, for failure to state a claim upon which relief may be
granted, or because it seeks monetary relief from a defendant
who is immune from suit pursuant to 28 U.S.C. § 1915A.

For the

reasons set forth below, this Court will dismiss with prejudice
Plaintiff’s claims against Defendants Hollingsworth, Ibe, Bynum
and Wilk in their official capacity.

Additionally, the claims

against Defendants Hollingsworth, Ibe, Bynum, and Wilk, in their
individual capacity, are dismissed without prejudice.

The

Federal Tort Claims Act claims against Defendants Hollingsworth,
Ibe, Bynum, and Wilk are dismissed with prejudice.

Finally, the

Federal Tort Claims Act claim against the United States of
America is dismissed without prejudice.
BACKGROUND
Plaintiff was formally incarcerated at the Federal
Correctional Institution at Fort Dix, New Jersey (“FCI”).
No. 1 at 16-18).

(ECF

The allegations of the complaint will be

construed as true for purposes of this screening opinion.

The

complaint names five defendants: (1) Warden Hollingsworth Warden at FCI; (2) Chigozie Ibe - IDC/IOP at FCI; (3) M. Bynum -

2

RN at FCI; (4) Jeff Wilk - EMT at FCI; and (5) the United States
of America.
In his Complaint, Plaintiff alleges inter alia the
following.

The prison’s failure to provide prompt and adequate

medical care after Plaintiff was assaulted by another inmate on
April 10, 2016, was in violation of his Constitutional rights.
Plaintiff alleges that on April 10, 2016, an inmate struck
Plaintiff with a “lock-in-a-sock” that left the Plaintiff
unconscious.

(ECF No. 1 at 17).

Plaintiff was examined by

prison medical staff and determined to be “okay” although
Plaintiff thought otherwise.

(Id.)

Plaintiff was subsequently assigned to the Segregated
Housing Unit (“SHU”), for almost three months.

While in the

SHU, Plaintiff complained of bleeding from his left nostril,
which he claims went ignored, other than the administration of
“a few pills”, despite Plaintiff filing several administrative
grievances.

(Id.)

Plaintiff posits that a medical staff

deficiency at the facility resulted in the inadequate response
to his complaints about excessive bleeding.

(Id.)

Plaintiff

was taken to the hospital on June 15, 2016, and returned the
next day.

The complaint is silent about what kind of care he

received during his hospital visit but Plaintiff makes clear
that he did not undergo surgery.

(Id.)

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Two weeks later, Plaintiff was transferred to Fairton
Federal Correctional Institution.

A day later he was taken to

the hospital, where a “left parital [sic] craniotomy was
performed to remove [a] subacute subdural hematoma.”

(Id.)

Plaintiff remained in the hospital for an additional two weeks
until his transfer to a rehabilitation center.
18).

(ECF No. 1 at

Upon his transfer to Fairton, Plaintiff initiated his

administrative remedies.

(Id.)

Plaintiff brings claims alleging violations of the Federal
Tort Claims Act and his Fifth and Eighth Amendment rights.
1 at 4).

(ECF

He argues that Defendants’ actions resulted in his

physical and mental suffering, which includes symptoms such as
altered mental status, dizziness, nightmares, vision
loss/changes, headaches, etc.

(ECF No. 1 at 10).

He seeks

relief in the form of monetary damages totaling an amount of 15
million dollars.

(Id.)
I. STANDARDS OF REVIEW

A. Sua Sponte Dismissal
The legal standard for dismissing a complaint for failure
to state a claim pursuant to § 1915 (A)(b)(1) is identical to
the legal standard used when ruling on Rule 12(b)(6)motions.
Courteau v. United States, 287 F. App’x 159, 162 (3d Cir.
2008)(discussing legal standard applied to both § 1915(A)and §

4

12(b)(6)).

Every complaint must comply with the pleading

requirements of the Federal Rules of Civil Procedure.

Rule

8(a)(2) requires that a complaint contain “a short and plain
statement of the claim showing that the pleader is entitled to
relief.”

“Specific facts are not necessary; the statement need

only ‘give the defendant fair notice of what the ... claim is
and the grounds upon which it rests.’”

Erickson v. Pardus, 551

U.S. 89, 93(2007) (citations omitted).
While a complaint ... does not need detailed factual
allegations, a plaintiff’s obligation to provide the “grounds”
of his “entitle[ment] to relief” requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do ....

Factual allegations must be

enough to raise a right to relief above the speculative level
. . . ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations omitted).
That is, a complaint must assert “enough facts to state a
claim to relief that is plausible on its face.”

Id. at 570.

“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 alleged.”

Fair

Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir.
2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

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“The plausibility determination is ‘a context-specific task that
requires the reviewing court to draw on its judicial experience
and common sense.’”

Connelly v. Lane Const. Corp., 809 F.3d

780, 786-87 (3d Cir. 2016) (quoting Iqbal, 556 U.S. at 679); see
also Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012)
(citations omitted).

Thus, a court is “not bound to accept as

true a legal conclusion couched as a factual allegation,” and
“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678 (citations omitted).
In general, where a complaint subject to statutory
screening can be remedied by amendment, a district court should
not dismiss the complaint with prejudice, but should permit the
amendment.

Denton v. Hernandez, 504 U.S. 25, 34 (1992); Grayson

v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002)
(noting that leave to amend should be granted “in the absence of
undue delay, bad faith, dilatory motive, unfair prejudice, or
futility of amendment”), cited in Thomaston v. Meyer, 519 F.
App’x 118, 120 n.2 (3d Cir. 2013); Urrutia v. Harrisburg County
Police Dept., 91 F.3d 451, 453 (3d Cir. 1996).
Finally, in determining the sufficiency of a pro se
complaint, the Court must be mindful to accept its factual
allegations as true, see James v. City of Wilkes-Barre, 700 F.3d

6

675, 679 (3d Cir. 2012), and to construe it liberally in favor
of the plaintiff.

See Haines v. Kerner, 404 U.S. 519, 520-21

(1972); United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
Nevertheless, “pro se litigants still must allege sufficient
facts in their complaints to support a claim.”

Mala v. Crown

Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation
omitted).
B. Bivens Actions
In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S.
388 (1971), 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), and the Fifth Amendment,
see Davis v. Passman, 442 U.S. 228 (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 (1988)); see also Ziglar v.
Abbasi, 137 S.Ct. 1843, 1857 (2017) (“expanding the Bivens
remedy is now a ‘disfavored’ judicial activity”).

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Bivens actions have been considered 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 (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). 1
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) (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

1

The Court’s finding that a Bivens remedy is appropriate for
this claim is made for purposes of screening only. Defendants
are not precluded from arguing that under the test set forth in
Ziglar v. Abbasi, 137 S.Ct. 1843 (2017), extending a Bivens
remedy to the unique circumstances in this case is
inappropriate.
8

parallel right exists against federal officials); see also
Correctional Services Corp. v. Malesko, 534 U.S. 61, 66 (2001).
C. Personal Involvement
“[A] party may establish liability for deprivation of a
constitutional right only through a showing of personal
involvement by each defendant.”

Farrar v. McNesby, 639 F. App’x

903, 906-907 (3d Cir. 2016) (citing Rode v. Dellarciprete, 845
F.2d 1195, 1207 (3d Cir. 1988)).

“Personal involvement may be

shown through personal direction, actual participation in the
alleged misconduct, or knowledge of and acquiescence in the
alleged misconduct.” Id.; see also Tenon v. Dreibelbis, 606 F.
App’x 681, 688 (3d Cir. 2015).
II. DISCUSSION
Plaintiff devotes the majority of his Complaint describing
the prison staff’s alleged unresponsiveness to his requests for
medical treatment.

Plaintiff does not explicitly state which of

the alleged acts violated his Fifth and Eighth Amendment rights,
nor his rights under the Federal Torts Claims Act.

As set forth

above, in order to state a cause of action 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, 446 F.3d at 491.

9

Nevertheless, in construing Plaintiff’s Complaint liberally as
this Court must, see Haines, 404 U.S. at 520-21, it appears that
Plaintiff may be attempting to assert a Fifth Amendment claim
alleging due process violations and an Eighth Amendment claim
alleging inadequate medical care.
A. Sovereign Immunity
Plaintiff names Warden Hollingsworth, Chigozie Ibe of FCIFort Dix, M. Bynum of FCI-Fort Dix and Jeff Wilk of FCI-Fort
Dix, as defendants in their official capacity.

However, an

action against prison officials in their official capacity
constitutes an action against the United States.

Webb v. Desan,

250 F. App’x 468,471 (3d Cir. 2007) (citing Corr. Servs. Corp.
v. Malesko, 534 U.S. 61, 72 (2001)).

Bivens claims against the

United States are barred by sovereign immunity, absent an
explicit waiver.

Id.

Therefore, Plaintiff’s claims against all

defendants in their official capacity are dismissed with
prejudice.
B. Fifth Amendment
Plaintiff cites to the Fifth Amendment which this Court
construes as attempting to bring an equal protection claim.

The

Bivens doctrine has been extended to cases arising under the Due
Process Clause of the Fifth Amendment.
U.S. 228, (1979).

Davis v. Passman, 442

Moreover, the “Supreme Court has construed

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the Fifth Amendment’s Due Process Clause as containing an equal
protection guarantee.”

Mack v. Warden Loretto FCI, 839 F.3d

286, 305 n.12 (3d Cir. 2016)(citations omitted).

To state an

equal protection claim, Plaintiff must allege that he was
treated differently than other similarly situated inmates, and
this different treatment was the result of intentional
discrimination based on his membership in a protected class.
Id. at 305.

The Third Circuit has also recognized a “class of

one” theory when “a plaintiff states a claim for violation of
the Equal Protection clause when he ‘alleges that he has been
intentionally treated differently from others similarly situated
and that there is no rational basis for the difference in
treatment.’”

Mosca v. Cole, 217 F. App’x 158, 164 (3d Cir.

2007) (citing Village of Willowbrook v. Olech, 528 U.S. 562, 564
(2000)).

Moreover, “Plaintiffs must allege and (ultimately

prove) ‘intentional discrimination.’”

Hassan v. City of New

York, 804 F.3d 277, 294 (3d. Cir. 2015) (internal quotation
marks omitted) (quoting Washington v. Davis, 426 U.S. 229, 241
(1976); Pers. Adm’r of Mass. V. Feeney, 442 U.S. 256, 276
(1979))).
Here, Plaintiff provides no factual basis for an equal
protection claim.

His complaint is silent about what, if any,

protected class he identifies with.

11

Even if Plaintiff is

raising a class of one equal protection claim, he has not
provided any information to support that he was treated
differently than other similarly situated inmates.
Furthermore, as set forth above, to establish liability
under Bivens, a plaintiff must show personal involvement by each
defendant.

Farrar, 2016 WL 759571, at *2.

However, Plaintiff

has failed to mention the named defendants in the body of his
Complaint.

It is unclear from the Complaint whether these

defendants knew of the conditions described by Plaintiff, and
what discriminatory action they engaged in.

Accordingly, any

Fifth Amendment claims must be dismissed without prejudice as to
all defendants in their individual capacity.
C. Eighth Amendment
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.”

See Rhodes v. Chapman, 452 U.S.

337, 346 (1981) (citations omitted).

To assert an Eighth

Amendment 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).

12

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)).

Moreover, the Third Circuit has previously

identified that a prison official’s failure to address “serious
known medical care deficiencies” within the prison,
notwithstanding the official’s ignorance about a particular
inmate’s medical need, constitutes behavior that rises to the
level of deliberate indifference.

Barkes v. First Correctional

Medical, Inc., 766 F.3d 307, 324 (3d Cir. 2014), rev’d on other
grounds, Taylor v. Barkes, 135 S.Ct. 2042 (2015).
Here, Plaintiff alleges that the prison staff’s negligence
and deliberate indifference to the injuries that he sustained
after being attacked by a fellow inmate, resulted in further
physical complications as well as emotional and psychological
harm.
1. Warden Hollingsworth
Plaintiff first names Warden Hollingsworth of FCI as a
defendant in this action.

(ECF No. 1 at 1).

It appears that

Plaintiff is making a supervisory liability claim against

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Hollingsworth, as warden of the correctional facility.

While

such a claim may apply against this defendant, Plaintiff has not
pled facts supporting defendant’s culpability with respect to
the deliberate indifference claim.
A supervisory liability claim is assessed applying one of
the two following rubrics.

A supervisor can be held liable if

they “established and maintained a policy or custom which
directly caused the constitutional harm and another under which
they can be liable if they participated in violating plaintiff’s
rights, directed others to violate them, or as the persons in
charge, had knowledge of and acquiesced in their subordinates’
violations.”

Parkell v. Danberg, 833 F.3d 313, 330 (3d Cir.

2016) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 129
n.5 (3d Cir. 2010)).
Plaintiff does not appear to be making a policymaker claim
against Defendant Hollingsworth but rather a claim that
Hollingsworth had knowledge of the alleged violations against
him.

Plaintiff also alleges that his inability to receive

adequate medical care was exacerbated by the prison’s medical
staff shortage.
First, with respect to the allegations that prison
officials knew of the alleged violations, Plaintiff’s only
supporting factual allegations are that he filed multiple

14

administrative grievances throughout the period that he was
denied medical care.

While these complaints may have been

received by prison personnel, he has not alleged facts that
indicate that Defendant Hollingsworth had personal knowledge of
these particular complaints, no matter how numerous.

Second,

Plaintiff’s allegation that the inadequate medical care was a
result of a medical staff shortage is not founded in any facts.
Plaintiff does not identify any details that establish that
there may have been a medical staff shortage.

This Court cannot

analyze Defendant Hollingsworth’s potential liability under this
framework without additional facts about the prison’s medical
staffing situation during the period which Plaintiff suffered
these harms.

For this reason, Plaintiff’s Eighth Amendment

claims against Defendant Hollingsworth are dismissed without
prejudice.
2. Chigozie Ibe, M. Bynum, RN, Jeff Wilk, EMT
Plaintiff next names Chigozie Ibe IDC/IOP, M Bynum, RN and
Jeff Wilk, EMT of FCI as defendants in their individual
capacity.

Plaintiff has not linked Ibe, Bynum nor Wilk with any

of the factual allegations.

With respect to Defendant Ibe,

Plaintiff has not even described Ibe’s role within the prison.
Liberally construing Plaintiff’s complaint, this Court presumes
that Ibe is a member of the prison’s medical staff.

15

Accordingly, this Court will assess all three of the defendants’
liability under the Eighth Amendment deliberate indifference
standard outlined above.
Plaintiff’s complaint refers to overall inattentive care
by prison staff throughout the relevant period.

Although

Plaintiff does not clearly articulate what medical professionals
told him during his visits after the April 10th attack,
Plaintiff’s complaint supports a strong inference that he
considered the eventual surgery he underwent months later to
have been necessary all along and unduly delayed by the prison’s
neglect or disregard.

However, the complaint is silent about

salient facts such as: how soon after the attack he was
originally seen by medical professionals, what Plaintiff was
informed at his initial post-attack medical visits, what the
pills that he was given after complaining of bleeding from his
left nostril were meant to alleviate and what medical
professionals indicated was the source of the injury that
eventually required surgery.

It is worth noting that “[a]

complaint that a physician has been negligent in diagnosing or
treating a medical condition does not state a valid claim of
medical mistreatment under the Eighth Amendment.”

Estelle v.

Gamble, 429 U.S. 98, 106 (1976); Pearson v. Prison Health Serv.,

16

850 F.3d 526, 538 (3d Cir. 2017) (quoting Estelle, 429 U.S. at
106).
Plaintiff has failed to adequately plead an Eighth
Amendment cause of action against these defendants.

Even

assuming that Plaintiff’s vague description of his injury
sufficiently describes a serious medical need, Plaintiff does
not provide any factual allegations that relate to any of the
named defendants.

The Complaint does not allege that any

defendant acted with deliberate indifference, thus, Plaintiff
has not set forth a claim for inadequate medical care.
Because Plaintiff has failed to explain how each of the
named defendants either participated in, or knew of, the alleged
constitutional deprivations described in the Complaint, his
claims under Bivens will be dismissed without prejudice.

For

these reasons, Plaintiff’s Eighth Amendment claims against
Defendants Ibe, Bynum and Wilk in their individual capacities,
will also be dismissed without prejudice.
D. Federal Tort Claims Act
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 (1983).

In the absence of such a waiver of

immunity, Plaintiff cannot proceed in an action for damages

17

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 (“FTCA”), 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 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 United States v. Muniz,
374 U.S. 150 (1963).
A plaintiff may sue only the United States under the FTCA,
and the plaintiff must first present the claims to a federal
agency and receive a final decision before filing a lawsuit.

28

U.S.C. §§ 1346(b), 2675(a); McNeil v. United States, 508 U.S.
106, 111 (1993); see also Coffey v. Fed. Bureau of Prisons, No.
15-231, 2015 WL 2185518, at *4 (D.N.J. May 11, 2015).

18

Under the FTCA, a plaintiff must commence an action
against the United States within six months of the notice of
final denial by the agency to which it was presented.
U.S.C. § 2401(b).

See 28

This administrative exhaustion “requirement

is jurisdictional and cannot be waived.”

Shelton v. Beldsoe,

775 F.3d 554, 569 (3d Cir. 2015)(citation omitted).

“The FTCA

bars claimants from bringing suit in federal court until they
have exhausted their administrative remedies.”

McNeil, 508 U.S.

at 113.
Plaintiff has not established that a proper FTCA claim was
filed.

Hoffenberg v. United States, No. 10-2788, 2012 WL

3079117, at * 5(D.N.J. 2012)(citation omitted).

Plaintiff

alleges that he “initiated” his administrative remedies shortly
upon his transfer to Fairton FCI, which was on or about June 30,
2016. 2

(ECF No. 1 at 13).

on December 12, 2016.

His complaint in this court was filed

Thus, not only has he not alleged that a

final agency denial was filed, but also, at the time of his
filing in this court he had not yet allowed the Federal Bureau

2

Exhausting the prison administrative remedy process is not
the same as exhausting an FTCA claim. Knight v. Kaminski, No.
3:CV-05-18, 2007 WL 9618480, at *6 (M.D. PA. 2007).
19

of Prisons the six-months permitted under 28 U.S.C. § 2675(a) to
respond to his administrative tort claim. 3
Accordingly, Plaintiff has not met the prerequisites for
filing suit under the FTCA and his claims for negligence against
the United States under the FTCA are dismissed without prejudice
at this time.
E. PROPER DEFENDANTS
In a suit pursuant to the FTCA, the only proper defendant
is the United States.

See Murchison v. Warden Lewisburg USP,

566 F. App'x 147, 150 (3d Cir. 2014) (citations omitted).
Accordingly, to the extent Plaintiff is seeking to bring a FTCA
claim against Defendants Hollingsworth, Ibe, Bynum and Wilk, it
will be dismissed with prejudice against these named defendants.
IV. CONCLUSION
For the foregoing reasons, the Court will dismiss with
prejudice Plaintiff’s claims against Defendants Hollingsworth,
Ibe, Bynum and Wilk in their official capacity; dismiss without
prejudice Plaintiff’s Fifth and Eighth Amendment claims against
Defendants Hollingsworth, Ibe, Bynum and Wilk; dismiss with
prejudice Plaintiff’s Federal Tort Claims Act claim against
Defendants Hollingsworth, Ibe, Bynum and Wilk; and dismiss

3

The Court assumes Plaintiff filed the correct claim under 28
U.S.C. § 2675(a).
20

without prejudice Plaintiff’s Federal Tort Claims Act claim
against the United States of America.

Because it is possible

that Plaintiff may be able to amend or supplement his Complaint
with facts sufficient to overcome the deficiencies noted herein,
Plaintiff will be given leave to file, within 45 days, an
application to amend accompanied by a proposed amended
complaint.

See Denton, 504 U.S. at 34; Grayson, 293 F.3d at

108.
An appropriate Order follows.

Dated: March 12, 2018
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN
United States District Judge

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