BERRY v. S. FITZGERALD et al

Filing 87

OPINION. Signed by Judge Noel L. Hillman on 3/9/2023. (jab)

Case 1:17-cv-04904-NLH-AMD Document 87 Filed 03/09/23 Page 1 of 19 PageID: 904

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
LARRY LAVONNE BERRY,
:
:
Plaintiff,
:
Civ. No. 17-4904 (NLH) (AMD)
:
v.
:
OPINION
:
:
FBOP OFFICER
:
STEPHEN FITZGERALD, et al.,
:
:
Defendants.
:
:
______________________________:
APPEARANCES:
Jeffrey P. Resnick, Esq.
Sherman, Silverstein, Kohl, Rose & Podolsky, PA
East Gate Corporate Center
308 Harper Drive
Suite 200
Moorestown, NJ 08057
Attorneys for Plaintiff
Philip R. Sellinger, United States Attorney
Kristin Lynn Vassallo, Assistant United States Attorney
Office of the United States Attorney
District of New Jersey
970 Broad Street
Newark, NJ 07102
Attorneys for Defendants
HILLMAN, District Judge
Plaintiff Larry Lavonne Berry is proceeding on an amended
complaint against Defendants Stephen Fitzgerald and Robert
Wright, pursuant to Bivens v. Six Unknown Named Agents of Fed.

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Bureau of Narcotics, 403 U.S. 388 (1971), alleging they sexually
assaulted him during his incarceration in FCI Fort Dix, New
Jersey.

Amended Complaint (“Am. Compl.”) ECF No. 43.

The

amended complaint also alleges negligence, assault and battery,
and intentional infliction of emotional distress claims against
the United States under the Federal Tort Claims Act (“FTCA”), 28
U.S.C. § 2671 et seq.
judgment.

ECF No. 75.

Id.

Defendants now move for summary

Plaintiff opposes the motion.

ECF No.

77.
For the reasons herein, the Court will grant the motion and
enter judgment in Defendants’ favor.
I.

BACKGROUND
Plaintiff arrived at FCI Fort Dix on August 19, 2014, and

remained in custody there until he was transferred to FCI
Fairton on March 1, 2016.

Plaintiff’s Response to Defendants’

Statement of Material Facts (“PRSOF”), ECF No. 78 ¶ 1.

On or

about September 2, 2014, Plaintiff submitted a BP-8 informal
resolution form regarding an encounter with Defendant Wright:
Officer Wright verbally/sexually harassed me in the
Laundry area by requesting that I drop my pants and show
him how tight my underwear are on my ass before issuing
larger underwear.
However this is unprofessional and
[inappropriate].
Upon coming to FCI Fort Dix, I . . . was sexually
harassed by Officer Wright in the Laundry on 8-20-14. I
was issued (4) uniforms (4) underwear (4) Tee Shirt (4)
socks.
The uniforms and underwear were [too] tight.
Officer Wright told me to come back on 8-26-14, which I
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did.
Upon entering the Laundry, Officer Wright had
pulled my Laundry card. Officer Wright told me it was
not my day. I informed the Officer that he told me to
come back. I requested for a change of underwear and
uniforms to be changed a size bigger. The Officer stated
you people. Then with no warning told me to pull down
my pants and turn around, so that he can see my rear
end, to determine if my underwear were in fact tight and
sticking in my rear end. This is very concerning and
needs to be addressed.
This kind of behavior is unprofessional and very
inappropriate. This is what I told the Officer. Officer
Wright, stated that I can go tell the Warden and or the
A/W they are my people, and to make sure I tell them
what I said.
Which was that the officer is being
unprofessional, and not to engage in sexual Language
with me, or acts. Officer Wright yelled at me telling
me to leave the Laundry, also stating that he isn’t the
one and he knows where I sleep. I contacted the proper
authorit[ies] and Family concerning this matter. This
is a no win situation that I’m in. I’ve been sexually
abused as a child, and I fear for my [safety]. Please
transfer me because I don’t need this Office planting
any thing on me or in my property. This will not be
tolerated, “Sexual harassment” from staff or inmate.
ECF No. 75-5 at 36-40.

On September 4, 2014, Plaintiff asked to

withdraw the BP-8:
I was in the Lt. Office, app 1:45 discussing the BP:8,
that was file[d] on 9-2-14.
I explained to the Lt.,
that I feel as if the Officer in question is of no threat
to myself, Larry L. Berry 70372-056, and I am requesting
to drop the BP-8 that I wrote concerning the matter.
Id. at 35.

Lieutenant John Miosi later sent an email stating:

“All inmate Barry wanted was institutional clothing that fit
him.

Inmate Barry wrote a request while in the Office to drop

the BP-8.

See attached.

Inmate Barry will be escorted to

Laundry Friday to pick up institutional clothing.
3

Any further

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questions, feel free to contact this Lieutenant.”

Id. at 34.

Plaintiff disputes that this withdrawal was voluntary.

PRSOF ¶

5.
Plaintiff alleges that “[f]rom August 21, 2014 through
about May 2015, defendant Wright assaulted plaintiff on numerous
occasions while he was under the custodial, supervisory and
disciplinary authority of the FBOP.”

Am. Compl. ¶ 12.

“Defendant Wright inappropriately intimidated, coerced,
victimized and assaulted plaintiff by forcing plaintiff to have
sexual relations with him.”

Id.

“During this time, defendant

Wright verbally demanded sexual favors and harassed plaintiff.”
Id. ¶ 13.
Plaintiff further alleges that “[f]rom approximately June
2015 through January 2016, defendant Fitzgerald assaulted
plaintiff on numerous occasions while he was under the
custodial, supervisory and disciplinary authority of the FBOP.”
Id. ¶ 14.

“Defendant Fitzgerald inappropriately intimidated,

coerced, victimized and assaulted plaintiff by forcing plaintiff
to have sex with him.”

Id.

“Defendant Fitzgerald would call

plaintiff to appear at the school building in 5842 on Sundays
when the building was closed and, during this time, defendant
Fitzgerald verbally demanded sexual favors and harassed
plaintiff.”

Id. ¶ 15. “Plaintiff did not consent to the sexual

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acts and assaults by defendants Wright and Fitzgerald.”

Id. ¶

17.
“At all times, plaintiff feared retaliation and further
abuse if he resisted or reported defendants Wright and
Fitzgerald.”

Id. ¶ 16.

Plaintiff states that whenever he tried

to stop Defendant Fitzgerald, he “was written upon on false
charges by or at the direction of defendant Fitzgerald.”
18.

Id. ¶

“Plaintiff informed several people about some or all of

these events including case manager Wright (who plaintiff did
not realize was defendant Wright’s sister), the head
psychologist and his case manager, Olsen, but nothing changed.”
Id. ¶ 19.

Plaintiff alleges that he was threatened and coerced

from filing internal charges against Defendants Wright and
Fitzgerald.

Id. ¶ 21.

On February 2, 2016, Plaintiff sent an email to the
Department of Justice’s Office of the Inspector General:
on 1/12/2016 I larry lavonne berry, was sexually
assuated by officer S. FITZGERALD in unit 5811 on the
west compound. this was the resust of filing a sexual
abuse charg on a OOFICE WRIGHT, that work the laundry.
sense I file the sexual abuse charges. i’ve been a targe
for staff here at fort dix..
maenly OFFICE WRIGHTS
sister CASE MANAGER WRIGHT In bldg 5811 .. I informed
me case manager of this abuse to no avail this
harrassment continued .. before my encounter with office
s. fitzgerald he approached me stating that I wrote a
sexual abuse charge on one of his co-workers. which i
did. then fitzgerald started searching me every chance
he got.
to the point.
i was showering this officer
came into the shower area and just stood there stairing
at me. once i can out of the shower fitzgerald searched
5

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me. minutes later he can into my room saying nothing.
than left shortly returning, stateing shack down
search..
officer fitzgerald let four withe man just
walk out the room. stopping me pat fricking! me twice
then useing the ward. my belt buckle beepin i removed
the belt there was no beeping .. than the officer took
his gloves off. and stuck his hands into my back pockets
palms touching my butt, tham stuck his hand into my front
pockets.
by this time i became fereful.
once i was
free to go i walked off fast them ran to the stairs ..
bottom line i received three shots 115 198 199 307. i
beat all excecp the 307 .. im now In the S-H-U. with
loss commissary. I didnt take any urin samply. however
i just got a stot for a dirty urin .. this is a ploy to
send me back to a higher classifacation institution, i
dont get high off of anything. never have never will.
my kiddey are shot.
ECF No. 77-7 at 2 (reproduced as filed).

Plaintiff requested an

institutional transfer and was transferred to FCI Fairton on or
about March 1, 2016.

Am. Compl. ¶ 11.

Plaintiffs filed his original complaint on July 5, 2017.
ECF No. 1.

Defendants answered the Complaint, ECF No. 16, and

then moved for summary judgment before discovery on the grounds
that Plaintiff failed to exhaust his administrative remedies,
ECF No. 17.

Plaintiff did not file a formal opposition brief to

the motion, but he did file a letter to the Court explaining
that he started the administrative remedy process as to the
sexual assault claims, but was forced to stop.

ECF No. 22.

He

also filed a motion for the appointment of pro bono counsel.
ECF No. 30.
Relying on Federal Rule of Civil Procedure 56(d), the Court
denied the motion for summary judgment without prejudice on June
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28, 2019.

ECF No. 32.

The Court further granted Plaintiff’s

motion for the appointment of counsel.

ECF No. 33.

Plaintiff

filed an amended complaint with leave of court after the
appointment of pro bono counsel.1

ECF No. 43.

Defendants now move for summary judgment on the amended
complaint.
77.

ECF No. 75.

Plaintiff opposes the motion.

ECF No.

At the Court’s request, the parties submitted supplemental

briefing on the Supreme Court’s decision in Egbert v. Boule, 142
S. Ct. 1793 (2022) which was handed down after briefing closed.
ECF Nos. 84 & 85.

The Court also permitted, but did not

require, the parties to submit any other evidence, such as
affidavits or declarations, that they wished the Court to
consider on Plaintiff’s exhaustion of administrative remedies.
ECF No. 83 (citing Fed. R. Civ. P. 56(e)(1); Paladino v.
Newsome, 885 F.3d 203 (3d Cir. 2018)).
II.

STANDARD OF REVIEW
Summary judgment should be granted when the pleadings,

depositions, answers to interrogatories, admissions on file, and
affidavits show that there is no genuine dispute as to any
material fact and that the moving party is entitled to a

The Court acknowledges and appreciates the advocacy of Jeffrey
P. Resnick, Esq. of Sherman, Silverstein, Kohl, Rose & Podolsky,
PA, who accepted appointment as pro bono counsel pursuant to 28
U.S.C. § 1915(e)(1) and this Court’s Plan for Appointment of
Attorneys in Pro Se Civil Actions, see App. H of the Local Civil
Rules of the District of New Jersey.
7
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judgment as a matter of law.

Fed. R. Civ. P. 56(c).

A disputed

fact is material when it could affect the outcome of the suit
under the governing substantive law.
Inc., 477 U.S. 242, 248 (1986).

Anderson v. Liberty Lobby,

A dispute is genuine if the

evidence is such that a reasonable jury could return a verdict
for the non-moving party.

Id. at 250.

The Court should view

the facts in the light most favorable to the non-moving party
and make all reasonable inferences in that party’s favor.

Hugh

v. Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).
Initially, the moving party must show the absence of a
genuine issue concerning any material fact.
v. Carrett, 477 U.S. 317, 323 (1986).

See Celotex Corp.

Once the moving party has

satisfied its burden, the non-moving party, “must present
affirmative evidence in order to defeat a properly supported
motion for summary judgment.”

Anderson, 477 U.S. at 257.

“While the evidence that the non-moving party presents may be
either direct or circumstantial, and need not be as great as a
preponderance, the evidence must be more than a scintilla.”
Hugh, 418 F.3d at 267 (citing Anderson, 477 U.S. at 251).
III. DISCUSSION
A.

Constitutional Claims
Plaintiff alleges Defendants Wright and Fitzgerald violated

the Eighth Amendment’s prohibition on cruel and unusual
punishment when they sexually assaulted him at FCI Fort Dix.
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Before the Court can address whether Plaintiff exhausted his
administrative remedies for these claims, it must first
determine whether he has a cause of action at all.
“In Bivens, the Court held that it had authority to create
‘a cause of action under the Fourth Amendment’ against federal
agents who allegedly manacled the plaintiff and threatened his
family while arresting him for narcotics violations.”

Egbert v.

Boule, 142 S. Ct. 1793, 1802 (2022) (quoting Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388,
397 (1971)).

“Over the following decade, the Court twice again

fashioned new causes of action under the Constitution — first,
for a former congressional staffer’s Fifth Amendment sexdiscrimination claim; and second, for a federal prisoner’s
inadequate-care claim under the Eighth Amendment.”

Id. (citing

Davis v. Passman, 442 U.S. 228 (1979); Carlson v. Green, 446
U.S. 14 (1980)).

“Since these cases, the Court has not implied

additional causes of action under the Constitution.”

Id.

In 2017, the Supreme Court concluded “that expanding the
Bivens remedy is now a ‘disfavored’ judicial activity.”
v. Abbasi, 582 U.S. 120, 135 (2017).

Ziglar

See also Hernández v.

Mesa, 140 S. Ct. 735, 742 (2020) (“In both statutory and
constitutional cases, our watchword is caution.”).

“These three

cases — Bivens, Davis, and Carlson — represent the only
instances in which the Court has approved of an implied damages
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remedy under the Constitution itself.”

Abbasi, 582 U.S. at 131.

“Indeed, in light of the changes to the Court’s general approach
to recognizing implied damages remedies, it is possible that the
analysis in the Court’s three Bivens cases might have been
different if they were decided today.”

Id. at 134.

Abbasi “created a funnel through which plaintiffs alleging
constitutional violations by federal officials must pass.”
Alexander v. Ortiz, No. 15-6981, 2018 WL 1399302, at *4 (D.N.J.
Mar. 20, 2018).

“First, we ask whether the case presents ‘a new

Bivens context’ — i.e., is it ‘meaningful[ly]’ different from
the three cases in which the Court has implied a damages
action.”

Egbert, 142 S. Ct. at 1803 (quoting Abbasi, 582 U.S.

at 139-40).

“If a case does not present a new Bivens context,

the inquiry ends there, and a Bivens remedy is available.”
Shorter v. United States, 12 F.4th 366, 372 (3d Cir. 2021).
The Supreme Court’s “understanding of a ‘new context’ is
broad.”

Hernández, 140 S. Ct. at 743.

“[A] new context arises

when there are ‘potential special factors that previous Bivens
cases did not consider.’”

Egbert, 142 S. Ct. at 1803 (quoting

Abbasi, 582 U.S. at 140).

Plaintiff argues his claims do not

present a new context under Bivens because “[t]he Third Circuit
has recognized that [Farmer v. Brennan, 511 U.S. 825 (1994)]
extends to encompass plaintiff’s Eighth Amendment Claim.”
No. 84 at 7 (citing Shorter).

“Defendants attempt to
10

ECF

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distinguish this matter from Farmer and Shorter, as those cases
involved a sexual assault by a fellow inmate.

However, this

difference is immaterial, rather, the conduct of the offending
officers is key.”

Id.

In Shorter, the Third Circuit held that a transgender
female inmate’s claim that prison officials failed to protect
her from being sexually assaulted by other inmates did not
present a new Bivens context.

“Farmer made clear, in

circumstances virtually indistinguishable from our case, that an
Eighth Amendment Bivens remedy is available to a transgender
prisoner who has been assaulted by a fellow inmate.”
at 373.

12 F. 4th

The Supreme Court has never included Farmer in its list

of prior acceptable Bivens actions,2 and the Third Circuit
decided Shorter before the Supreme Court issued Egbert.
However, Plaintiff’s case is distinguishable from Farmer even if
the Court may rely on it after Abbasi, Hernández, and Egbert.
Unlike the plaintiffs in Farmer and Shorter, Plaintiff is
not alleging that prison officials failed to protect him from
other inmates.

This difference is not immaterial.

“A claim may

arise in a new context even if it is based on the same
constitutional provision as a claim in a case in which a damages

The Third Circuit concluded “the Supreme Court in Abbasi
neglected to name Farmer because it saw that case as falling
under the umbrella of Carlson . . . .” Shorter, 12 F.4th at 373
n.5 (citing Bistrian v. Levi, 912 F.3d 79, 91 (3d Cir. 2018)).
11
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remedy was previously recognized.”
743.

Hernández, 140 S. Ct. at

Shorter relied on Farmer’s holding that “a federal

prisoner ha[s] a clearly established constitutional right to
have prison officials protect him from inmate violence and has a
damages remedy when officials violate that right.”

Shorter, 12

F. 4th at 373 (internal quotation marks omitted) (alteration in
original) (emphasis added).

See also Bistrian v. Levi, 912 F.3d

79, 94 (3d Cir. 2018) (“Abbasi changed the framework of analysis
for Bivens claims generally, but not the existence of the
particular right to Bivens relief for prisoner-on-prisoner
violence.”).

Despite both claims being premised on the Eighth

Amendment, the fact that Plaintiff is not alleging Defendants
failed to protect him from inmate violence makes his case
“meaningfully different” than Farmer.

See also Abbasi, 582 U.S.

at 139-40 (“A case might differ in a meaningful way because of
the rank of the officers involved” or “the constitutional right
at issue”).
Plaintiff’s allegations of sexual assault by BOP
corrections officers were not contemplated by the Supreme
Court’s decisions in Bivens, Davis, or Carlson, and the facts of
his case are distinguishable from Farmer.

Accordingly, the

Court concludes that Plaintiff’s claim presents a “new context.”
See also Greene v. United States, No. 21-5398, 2022 WL 13638916,
at *4 (6th Cir. Sept. 13, 2022) (unreported) (holding
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plaintiff’s “Eighth Amendment claims against federal corrections
officers and officials for conspiracy, excessive force, sexual
harassment, sexual assault, and failure to protect arise in ‘a
new context’ and involve a ‘new category of defendants’”); Ball
v. Streeval, No. 7:20-CV-00558, 2023 WL 1930003, at *4 (W.D. Va.
Feb. 9, 2023) (holding plaintiff’s allegations that “various
defendants subjected him to cruel and unusual punishment in the
form of beatings, threats, sexual assault, and painful
restraints” were “sufficiently different to constitute a new
Bivens context”); Carthen v. Scott, No. 119CV00227ADAEPGPC, 2023
WL 346675, at *6 (E.D. Cal. Jan. 20, 2023) (“As Plaintiff’s
Eighth Amendment sexual harassment/sexual assault claims involve
entirely different conduct than the conduct in Carlson,
Plaintiff’s Eighth Amendment claims also arise in a new
context.”).

The Court must now proceed to the second stage of

the Abbasi analysis.
“[I]f a claim arises in a new context, a Bivens remedy is
unavailable if there are ‘special factors’ indicating that the
Judiciary is at least arguably less equipped than Congress to
‘weigh the costs and benefits of allowing a damages action to
proceed.’”
at 136).

Egbert, 142 S. Ct. at 1803 (quoting Abbasi, 582 U.S.

“If there is even a single ‘reason to pause before

applying Bivens in a new context,’ a court may not recognize a
Bivens remedy.”

Id. (quoting Hernández, 140 S. Ct. at 743).
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See also Graber v. Doe II, 59 F.4th 603, 609 (3d Cir. 2023)
(“Bivens actions are very limited, and new ones cannot be
created where ‘there is any rational reason (even one) to think
that Congress is better suited to “weigh the costs and benefits
of allowing a damages action to proceed.”’” (quoting Egbert, 142
S. Ct. at 1805)).
Plaintiff concedes in his supplemental briefing that
Egbert’s “standard is extraordinarily restrictive as it bars
extension of a new Bivens context so long as the potential for
such ‘harmful or inappropriate’ judicial intrusion to exist is
an extraordinarily high bar.

Plaintiff would be unable to meet

the restrictive standard announced in Egbert as the potential
for such consequences exist.”

ECF No. 84 at 8.

The Court is

constrained to agree.
The Court does not reach this decision lightly.

Plaintiff

has made, and testified to under oath, serious allegations of
sexual assault at the hands of federal corrections officers.
“Our society requires prisoners to give up their liberty, but
that surrender does not encompass the basic right to be free
from severe unwanted sexual contact.”
468, 471 (3d Cir. 2018).

Ricks v. Shover, 891 F.3d

Staff sexual abuse of prisoners is

“objectively, sufficiently serious to constitute an Eighth
Amendment violation.”
248 (E.D. Pa. 2006).

White v. Ottinger, 442 F. Supp. 2d 236,
“[S]exual abuse ‘tend[s] rather to cause
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significant distress and often lasting psychological harm.’”
Ricks, 891 F.3d at 477 (quoting Washington v. Hively, 695 F.3d
641, 643 (7th Cir. 2012)) (second alteration in original).
However, “this court is obligated to faithfully apply
binding precedent, such as Egbert, in the cases before it, no
matter how egregious the allegations of abuse are.”

Jean v.

Smallwood, No. 7:20-CV-00415, 2022 WL 17969091, at *7 (W.D. Va.
Dec. 27, 2022).

The Supreme Court has held that “a court may

not fashion a Bivens remedy if Congress already has provided, or
has authorized the Executive to provide, ‘an alternative
remedial structure.’”

Egbert, 142 S. Ct. at 1804 (quoting

Abbasi, 582 U.S. at 137).

The Supreme Court has held that the

BOP’s Administrative Remedy program satisfies this requirement.
Id. at 1806 (citing Corr. Servs. Corp. v. Malesko, 534 U.S. 61,
74 (2001)).

Accordingly, the Court must dismiss Plaintiff’s

constitutional claims against Defendants Wright and Fitzgerald
as Bivens does not afford him a remedy absent Congressional
action.
B.

Federal Tort Claims Act
Defendant United States argues Plaintiff’s FTCA claims must

be dismissed as Plaintiff did not exhaust his administrative
remedies before filing suit.

Plaintiff responds that “[w]hile

plaintiff agrees that a formal Notice of Intent to Sue was not
filed with the Bureau of Prisons, the February 2, 2016 email
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complaint he filed with the Office of the Inspector General
satisfies the prerequisite of the FTCA.”

ECF No. 77 at 15.

See

also ECF No. 77-7 at 2.
“The FTCA waives sovereign immunity and grants district
courts jurisdiction over tort claims against the United States
‘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.’”

Gould

Elecs. Inc. v. United States, 220 F.3d 169, 179 (3d Cir. 2000)
(quoting 28 U.S.C. § 1346(b)(1)) (emphasis omitted), modified on
other grounds by Simon v. United States, 341 F.3d 193 (3d Cir.
2003).

This waiver of sovereign immunity is limited, however.

“Because the Federal Tort Claims Act constitutes a waiver of
sovereign immunity, the Act’s established procedures have been
strictly construed.”

Livera v. First Nat’l State Bank of N.J.,

879 F.2d 1186, 1194 (3d Cir. 1989).
“[A]n FTCA action ‘shall not be instituted upon a claim
against the United States for money damages ... unless the
claimant shall have first presented the claim to the appropriate
Federal agency . . . .’”

White-Squire v. U.S. Postal Serv., 592

F.3d 453, 457 (3d Cir. 2010) (quoting 28 U.S.C. § 2675(a))
(omissions in original).

The statute “further specifies that an

FTCA action ‘shall not be instituted for any sum in excess of
the amount of the claim presented to the federal agency . . .
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.’”

Id. (omission in original) (emphasis omitted).

“Because

the requirements of presentation and a demand for a sum certain
are among the terms defining the United States’s consent to be
sued, they are jurisdictional.”

Id. (citing United States v.

Sherwood, 312 U.S. 584, 586 (1941); Bialowas v. United States,
443 F.2d 1047, 1049 (3d Cir. 1971)).
“[N]otice in the form of an administrative claim ‘satisfies
section 2675’s requirement ... if the claimant (1) gives the
agency written notice of his or her claim sufficient to enable
the agency to investigate and (2) places a value on his or her
claim.’”

Roma v. United States, 344 F.3d 352, 362–63 (3d Cir.

2003) (quoting Tucker v. United States Postal Serv., 676 F.2d
954, 959 (3d Cir. 1982)) (omission in original).

Plaintiff

relies on his February 2, 2016 email to the Office of the
Inspector General for the presentation of his claim.

Even if

the Court presumes that the email satisfactorily presents the
factual basis of Plaintiff’s claim, the email is insufficient
under the FTCA because it was not submitted to the Bureau of
Prisons3 and does not contain a sum-certain demand as is required

The Office of the Inspector General is an independent unit
within the Department of Justice that conducts and supervises
audits, “provide[s] leadership and coordination and recommend
policies for activities designed (A) to promote economy,
efficiency, and effectiveness in the administration of, and (B)
to prevent and detect fraud and abuse in, such programs and
operations” and “provide[s] a means for keeping the head of the
3

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by the statute.

ECF No. 77-7 at 2.

“[T]he sum certain

requirement is . . . tethered to the grant of jurisdiction . . .
.”

White-Squire, 592 F.3d at 457.

“Thus, a claimant’s failure

to present [his] FTCA claim to the appropriate agency with a sum
certain, as required by § 2675(b), compels the conclusion that a
district court lacks subject matter jurisdiction over the
claim.”

Id. at 458.

See also Livera v. First Nat. State Bank

of New Jersey, 879 F.2d 1186, 1195 (3d Cir. 1989) (“[W]e are
compelled to find the complaint inadequate for administrative
purposes under the Tort Claims Act since the complaint failed to
state damages in a sum certain as mandated by 28 C.F.R. §
14.2(b)(1), which sets forth the content standards required for
tort claims against the United States.”).

The Court must

dismiss Plaintiff’s FTCA claims for lack of jurisdiction.
Plaintiff’s argument that the Court should equitably toll
the time for filing FTCA remedies because he was coerced into
withdrawing his BP-8 does not save his claims.
at 14-15.

See ECF No. 77

“The BOP’s Administrative Remedy Program is separate

and distinct from the statutory administrative procedures under
the FTCA.
deadlines.”

Each procedure has separate forms and filing
Gillie v. Esposito, No. 14-3704, 2018 WL 6499864,

establishment and the Congress fully and currently informed
about problems and deficiencies relating to the administration
of such programs and operations and the necessity for and
progress of corrective action.” 5 U.S.C. § App. 3 § 2 (1)-(3).
18

Case 1:17-cv-04904-NLH-AMD Document 87 Filed 03/09/23 Page 19 of 19 PageID: 922

at *4 (D.N.J. Dec. 11, 2018) (citing 28 C.F.R. § 542.10(c)).
Plaintiff’s claim that BOP officials coerced him into
withdrawing his BOP administrative claim does not suggest that
BOP officials prevented him from filing a claim under the FTCA.
IV.

CONCLUSION
For the reasons set forth above, the Court will grant

Defendants’ motion for summary judgment.

Judgment will be

entered in Defendants’ favor.
An appropriate Order follows.

Dated: March 9, 2023
At Camden, New Jersey

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

19