VIOLETTE v. ORTIZ et al

Filing 13

OPINION. Signed by Judge Jerome B. Simandle on 11/27/2018. (tf, n.m.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

GREGORY PAUL VIOLETTE,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil Action
No. 18-3401 (JBS-AMD)

v.
WARDEN DAVID E. ORTIZ, et al.,

OPINION
Defendants.

APPEARANCES:
GREGORY PAUL VIOLETTE, Plaintiff Pro Se
PO Box 1694
Waterville, ME 04903-1694
CRAIG CARPENITO, United States Attorney
By: KRISTIN LYNN VASSALLO, Assistant United States Attorney
Office of the U.S. Attorney
District of New Jersey
970 Broad Street
Newark, New Jersey 07102
Attorneys for Defendants Warden David Ortiz, Department of
Justice, and Federal Bureau of Prisons
SIMANDLE, District Judge:
INTRODUCTION
This matter comes before the Court on a motion to dismiss
filed by defendants Warden David Ortiz, the Department of
Justice, and the Federal Bureau of Prisons (“BOP”). Motion to
Dismiss, Docket Entry 4. Plaintiff Gregory Violette opposes the
motion. Opposition, Docket Entry 6. For the reasons stated
below, the motion to dismiss in granted. Plaintiff shall be

given leave to amend his Eighth Amendment claims against Warden
Ortiz.
BACKGROUND
On November 20, 2017, Plaintiff filed a complaint in the
New Jersey Superior Court, Law Division, Burlington County
alleging that he had been subjected to unconstitutional
conditions of confinement while incarcerated at FCI Fort Dix, a
federal prison operated by the BOP. Complaint, Docket Entry 1-1.
He alleged that between September 2015 and September 2016, he
“was made to live in an over capacity living quarter’s [sic].”
Id. at ¶ 1. According to the complaint:
Using the Federal BOP Program Statement dated June 30,
1997, the square feet per person was 60 sq. ft. each. My
room was 525 sq. ft. and that would give you a 8.75
inmate capacity and the prison had me in with 11 other
inmates making a total of 12 inmates in my room making
it over capacity by 3.25 inmates.
Id. Plaintiff alleged this overcrowding put him under “a lot of
stress” and he “had a hard time living because of the amount of
inmates in [his] room.” Id. ¶ 3(1). He specifically alleged that
the conditions “made my mental illness, bi-polar and PTSD
unbearable daily” and caused him to be unable to sleep and eat.
Id. ¶¶ 3(2)-(3).

2

The United States removed the complaint to this Court on
March 9, 2018 under 28 U.S.C. § 2679(d)(2)1 and 28 U.S.C. §
1346(b).2 Notice of Removal, Docket Entry 1. It filed a motion to
dismiss the complaint on March 23, 2018.
The United States argues Plaintiff failed to file an
administrative tort claim, depriving this Court of jurisdiction
under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§
1346(b), 2671–2680. Fed. R. Civ. P. 12(b)(1). It also argues
Plaintiff has failed to state a tort claim or an Eighth
Amendment violation. Fed. R. Civ. P. 12(b)(6). Plaintiff opposes
the motion by arguing he did file administrative remedies with
the BOP.
The matter is now ripe for disposition.

1

“Upon certification by the Attorney General that the defendant
employee was acting within the scope of his office or employment
at the time of the incident out of which the claim arose, any
civil action or proceeding commenced upon such claim in a State
court shall be removed without bond at any time before trial by
the Attorney General to the district court of the United States
for the district and division embracing the place in which the
action or proceeding is pending.” 28 U.S.C. § 2679(d)(2).
2 “[T]he district courts . . . shall have exclusive jurisdiction
of civil actions on claims 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, 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.” 28 U.S.C. § 1346(b)(1).
3

III. STANDARD OF REVIEW
A party may move to dismiss a complaint for lack of subject
matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1). Because federal courts are courts of limited
jurisdiction, the party seeking to invoke the court’s
jurisdiction bears the burden of proving the existence of
subject matter jurisdiction. See Kokkonen v. Guardian Life Ins.
Co., 511 U.S. 375, 377 (1994). The court’s jurisdiction may be
challenged either facially (based on the legal sufficiency of
the claim) or factually (based on the sufficiency of a
jurisdictional fact). Gould Elecs. v. U.S., 220 F.3d 169, 178
(3d Cir. 2000), modified on other grounds by Simon v. United
States, 341 F.3d 193 (3d Cir. 2003).
A facial attack “challenges subject matter jurisdiction
without disputing the facts alleged in the complaint, and it
requires the court to ‘consider the allegations of the complaint
as true.’” Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir.
2016) (quoting Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3
(3d Cir. 2006)). The defendant bears the burden of showing no
claim has been stated. “In contrast, in a factual attack under
Rule 12(b)(1), the court may consider and weigh evidence outside
the pleadings to determine if it has jurisdiction. The plaintiff
has the burden of persuasion to convince the court it has
jurisdiction.” Gould Elecs., 220 F.3d at 178.
4

When considering a motion to dismiss a complaint for
failure to state a claim, Fed. R. Civ. P. 12(b)(6), the Court
must accept all well-pleaded allegations in the complaint as
true and view them in the light most favorable to the non-moving
party. A motion to dismiss may be granted only if the plaintiff
has failed to set forth fair notice of what the claim is and the
grounds upon which it rests that make such a claim plausible on
its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
Although Rule 8 does not require “detailed factual allegations,”
it requires “more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 555).
In reviewing the sufficiency of a complaint, the Court must
“tak[e] note of the elements [the] plaintiff must plead to state
a claim. Second, it should identify allegations that, because
they are no more than conclusions, are not entitled to the
assumption of truth. Finally, [w]hen there are well-pleaded
factual allegations, [the] court should assume their veracity
and then determine whether they plausibly give rise to an
entitlement to relief.” Connelly v. Lane Const. Corp., 809 F.3d
780, 787 (3d Cir. 2016) (alterations in original) (internal
citations and quotation marks omitted). “[A] complaint's
allegations of historical fact continue to enjoy a highly

5

favorable standard of review at the motion-to-dismiss stage of
proceedings.” Id. at 790.
IV.

DISCUSSION
The United States argues the complaint should be dismissed

under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). It
argues that Plaintiff failed to comply with the administrative
preconditions of filing a FTCA claim in federal court and that
the housing of federal prisoners is a discretionary function for
which the FTCA preserves sovereign immunity. It also argues that
Plaintiff has failed to sufficiently allege an Eighth Amendment
violation.
A. Jurisdiction
Plaintiff’s complaint does not specifically state the type
of claim he intended to bring against defendants in state court.
The United States interpreted the complaint as being brought
under the FTCA and removed Plaintiff’s complaint from state
court under 28 U.S.C. § 2679, “which provides that once the
Attorney General certifies that the employee-defendant was
acting within the scope of his employment with the United
States, ‘any civil action or proceeding commenced upon such
claim in a State Court shall be removed without bond at any time
before trial’” to the appropriate district court. Rivera-Carrion
v. Miranda, 529 F. Supp. 2d 296, 298 (D.P.R. 2008) (quoting 28
U.S.C. § 2679(d)(2)) (emphasis in original). The Civil Chief of
6

the U.S. Attorney’s Office for the District of New Jersey
certified Warden Ortiz was acting within the scope of his BOP
employment at all times relevant to the complaint. Certification
of J. Andrew Ruymann, Docket Entry 1-2.3 Removal was therefore
proper under § 2679 as the complaint was removed prior to trial
in the state court. See also Thompson v. Wheeler, 898 F.2d 406,
409 (3d Cir. 1990).
Although removal was proper and required under the FTCA,
the FTCA’s waiver of the United States’ sovereign immunity is
limited. Before filing a suit in federal court, a plaintiff
suing under the FTCA must present the offending agency, here the
BOP, with notice of the claim, including a “sum certain” demand
for monetary damages. White-Squire v. U.S. Postal Serv., 592
F.3d 453, 457 (3d Cir. 2010). “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, 587 (1941)). These requirements cannot be waived. Id.
(citing Bialowas v. United States, 443 F.2d 1047, 1049 (3d Cir.
1971)). “The FTCA bars claimants from bringing suit in federal
court until they have exhausted their administrative remedies.”

3

The Attorney General has delegated certification authority to
the United States Attorneys. 28 U.S.C. § 510; 28 C.F.R. §
15.4(a).
7

McNeil v. United States, 508 U.S. 106, 113 (1993); see also
Shelton v. Bledsoe, 775 F.3d 554, 569 (3d Cir. 2015). Exhaustion
occurs when either the agency denies the claim, in which case
plaintiffs must file suit within six months, or six months have
passed without a written denial of the claim. 28 U.S.C. §§
2401(b), 2675(a). The exhaustion requirement is mandatory,
jurisdictional, and is applicable to all FTCA plaintiffs
regardless of their pro se or incarcerated status. Shelton, 775
F.3d at 569; Wadhwa v. Nicholson, 367 F. App'x 322, 325 n.5 (3d
Cir. 2010) (“McNeil clarified that administrative exhaustion
must be complete before instituting suit, and that this
procedural rule is a requirement to which all litigants must
adhere.” (emphasis in original)).
The United States has submitted the sworn declaration of
BOP Legal Assistant Tara Moran in support of its motion to
dismiss. Moran Dec., Docket Entry 4-3. The Court must therefore
consider the 12(b)(1) motion a factual attack on its
jurisdiction. See Davis v. Wells Fargo, 824 F.3d 333, 346 (3d
Cir. 2016) (“[B]ecause [defendant] submitted a signed
declaration disputing [plaintiff’s] factual allegations,
[defendant] has mounted a factual challenge to subject matter
jurisdiction.”). See also Gould Elecs. Inc. v. United States,
220 F.3d 169, 176 (3d Cir. 2000) (“In reviewing a factual
attack, the court may consider evidence outside the
8

pleadings.”), modified on other grounds by Simon v. United
States, 341 F.3d 193 (3d Cir. 2003).
Ms. Moran has certified that the BOP’s administrative
records do not reflect that Plaintiff ever filed an
administrative tort claim with the BOP. Moran Dec. ¶ 2.
Plaintiff responded that he filed forms BP-8, BP-9, BP-10, and
BP-11 while incarcerated in Fort Dix. Opposition ¶ 1. He asserts
all forms were answered by BOP officials. Id.
The Court finds that it lacks jurisdiction under the FTCA
because Plaintiff did not file an administrative tort claim with
the BOP. The forms cited by Plaintiff are forms relating to the
BOP’s administrative remedy program. See 28 C.F.R. § 542.10 et
seq. A BP-9 form is used for the initial administrative remedy
request and must be filed “20 calendar days following the date
on which the basis for the Request occurred.” 28 C.F.R. §
542.14(a). “An inmate who is not satisfied with the Warden's
response may submit an Appeal on the appropriate form (BP–10) to
the appropriate Regional Director within 20 calendar days of the
date the Warden signed the response.” 28 C.F.R. § 542.15(a). “An
inmate who is not satisfied with the Regional Director's
response may submit an Appeal on the appropriate form (BP–11) to
the General Counsel within 30 calendar days of the date the
Regional Director signed the response.” Id.

9

“The purpose of the Administrative Remedy Program is to
allow an inmate to seek formal review of an issue relating to
any aspect of his/her own confinement.” 28 C.F.R. § 542.10(a).
It is separate and distinct from the FTCA with its own filing
requirements and deadlines, giving notice to the BOP that an
individual intends to seek money damages for personal injury
caused by the negligence of an employee of the United States.
See also 28 C.F.R. § 542.10(c) (noting that “[t]here are
statutorily-mandated procedures in place for tort claims (28 CFR
part 543, subpart C)”). Plaintiff has not provided any evidence
that he filed the appropriate form for a tort claim against the
United States. As such, the Court is required to dismiss the
tort claim for lack of jurisdiction. See Int'l Ass'n of
Machinists & Aerospace Workers v. Nw. Airlines, Inc., 673 F.2d
700, 711-12 (3d Cir. 1982) (“If the plaintiff does not meet and
controvert the defendant's factual assertions by affidavits or
other sworn proofs, then the district court must determine
whether it has subject matter jurisdiction based upon the
factual context presented by the defendant.”). To the extent the
complaint raises a tort claim against the United States, it is
dismissed for lack of jurisdiction.4

4

The Court need not address the FTCA discretionary function
exception argument as it dismisses based on Plaintiff’s failure
to file a notice of tort claim.
10

B. Eighth Amendment
Any constitutional claim Plaintiff has under the Eighth
Amendment, brought pursuant to Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics 403 U.S. 388 (1971), could
only proceed against Warden Ortiz in his individual capacity.
The United States has sovereign immunity for constitutional
claims. Tucker v. Sec'y of Health & Human Servs., 588 F. App'x
110, 115 (3d Cir. 2014); Perez–Barron v. United States, 480 F.
App'x. 688, 691 (3d Cir. 2012) (citing Chinchello v. Fenton, 805
F.2d 126, 130 n.4 (3d Cir. 1986)). “[W]aivers of federal
sovereign immunity must be ‘unequivocally expressed’ in the
statutory text.” United States v. Idaho ex rel. Dir., Idaho
Dep't of Water Res., 508 U.S. 1, 6 (1993). Plaintiffs may not
sue a federal agency such as the BOP or the Department of
Justice under Bivens. FDIC v. Meyer, 510 U.S. 471, 483-85
(1994). Finally, “a Bivens action cannot be maintained against a
federal official in [his] official capacity since such an action
would essentially be one against the United States.” Tucker, 588
F. App'x at 115.
“The Eighth Amendment requires prison officials to provide
‘humane conditions of confinement.’” Smith v. Bolava, 632 F.
App'x 683, 686–87 (3d Cir. 2015) (quoting Betts v. New Castle
11

Youth Dev. Ctr., 621 F.3d 249, 256 (3d Cir. 2010)).
“[D]eficiencies and inadequacies in prison conditions do not
necessarily violate the Eighth Amendment. The amendment is
violated only where an inmate is deprived of ‘the minimal
civilized measure of life's necessities.’” Tillery v. Owens, 907
F.2d 418, 426 (3d Cir. 1990) (quoting Rhodes v. Chapman, 452
U.S. 337, 347 (1981)). In making this determination, the Court
must consider the totality of the circumstances. Id.
“[A]n inmate seeking to establish that a prison deprivation
amounts to cruel and unusual punishment always must satisfy both
the ‘objective component ... (Was the deprivation sufficiently
serious?)’ and the ‘subjective component (Did the officials act
with a sufficiently culpable state of mind?)’ of the Eighth
Amendment.” Hudson v. McMillian, 503 U.S. 1, 21 (1992) (quoting
Wilson v. Seiter, 501 U.S. 294, 298 (1991)) (omission in
original). Plaintiff’s complaint contains no factual allegations
regarding the subjective component. In other words, there are no
facts in the complaint supporting a reasonable inference that
Warden Ortiz acted with “obduracy and wantonness.” Wilson, 501
U.S. at 299.
As Plaintiff has not sufficiently alleged an Eighth
Amendment claim, the Court will dismiss the complaint. Because
Plaintiff is proceeding pro se, “dismissal without leave to
amend is justified only on the grounds of bad faith, undue
12

delay, prejudice, or futility.” Shane v. Fauver, 213 F.3d 113,
117 (3d Cir. 2000). The Court finds that none of these
exceptions apply in this instance. Plaintiff may move to amend
his complaint within 30 days of this opinion and order. Any
motion to amend must include a proposed amended complaint.
In the event Plaintiff elects to move for leave to amend
his complaint, he should consider the Supreme Court’s recent
decision in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017). The Court
held in Ziglar that federal courts should exercise caution
before extending the Bivens remedy to claims that are
meaningfully different than “the three Bivens claims the Court
has approved in the past: a claim against FBI agents for
handcuffing a man in his own home without a warrant; a claim
against a Congressman for firing his female secretary; and a
claim against prison officials for failure to treat an inmate's
asthma.” Id. at 1860 (citing Carlson v. Green, 446 U.S. 14
(1980); Davis v. Passman, 442 U.S. 228 (1979); Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388 (1971)). If the
instant matter is meaningfully different from those cases,
courts must determine if special factors counsel against
judicial extension of the Bivens remedy. Id. at 1857 (“The
Court's precedents now make clear that a Bivens remedy will not
be available if there are special factors counselling hesitation

13

in the absence of affirmative action by Congress.” (internal
quotation marks omitted)).
Plaintiff’s complaint does not provide enough facts for the
Court to determine whether his Bivens claim for overcrowding in
violation of the Eighth Amendment is meaningfully different from
the Supreme Court’s precedents.5 Therefore, the Court expresses
no opinion at this time whether a Bivens remedy is available to
Plaintiff.
V. CONCLUSION
For the reasons stated above, the motion to dismiss the
complaint is granted. Plaintiff may move to amend his complaint
within 30 days.
An accompanying Order will be entered.

November 27, 2018
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

5

“A case might differ in a meaningful way because of the rank of
the officers involved; the constitutional right at issue; the
generality or specificity of the official action; the extent of
judicial guidance as to how an officer should respond to the
problem or emergency to be confronted; the statutory or other
legal mandate under which the officer was operating; the risk of
disruptive intrusion by the Judiciary into the functioning of
other branches; or the presence of potential special factors
that previous Bivens cases did not consider.” Ziglar, 137 S. Ct.
at 1860.
14