BENTON v. UNITED STATES OF AMERICA et al

Filing 2

OPINION. Signed by Judge Renee Marie Bumb on 1/7/2021. (cry, )

Case 1:21-cv-00032-RMB-AMD Document 2 Filed 01/07/21 Page 1 of 5 PageID: 4

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
ROSCOE BENTON, III,

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Plaintiff
v.
UNITED STATES OF AMERICA,
et al.,

CIV. NO. 21-32 (RMB-AMD)

OPINION

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Defendants
BUMB, DISTRICT JUDGE

Plaintiff Roscoe Benton, III, a prisoner incarcerated in the
Federal Correctional Institution in Fort Dix, New Jersey (“FCI
Fort Dix”), filed this Complaint on January 4, 2021. (Compl., Dkt.
No. 1.) Plaintiff failed to pay the $402 filing and administrative
fees or alternatively submit an application to proceed in forma
pauperis (“IFP”) under 28 U.S.C. § 1915.
The

Court

will

administratively

terminate

this

action. 1

Plaintiff may reopen this action if he timely submits a properly

1

U.S.D.C.
provides:

District

of

New

Jersey

Local

Civil

Rule

Except as otherwise directed by the Court, the
Clerk shall not be required to enter any suit,
file any paper, issue any process or render
any other service for which a fee is
prescribed by statute or by the Judicial
Conference of the United States, nor shall the
Marshal be required to serve the same or
perform any service, unless the fee therefor

54.3(a)

Case 1:21-cv-00032-RMB-AMD Document 2 Filed 01/07/21 Page 2 of 5 PageID: 5

completed IFP application or pays $402.00 for the filing and
administrative fees. Plaintiff should be aware that, even if
granted

IFP

status,

he

must

pay

the

$350.00

filing

fee

in

installments, if available in his prison trust account, regardless
of whether the complaint is dismissed, see U.S.C. § 1915(b)(1).
I.

Sua Sponte Dismissal
When a prisoner is permitted to proceed without prepayment of

the filing fee or when the prisoner pays the filing fee for a civil
action and seeks redress from a governmental entity, officer or
employee of a governmental entity, 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b) and 42 U.S.C. § 1997e(c) require courts to review the
complaint and sua sponte 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. 2
Courts must liberally construe pleadings that are filed pro
se. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.

is paid in advance. The Clerk shall receive
any such papers in accordance with L.Civ.R.
5.1(f).
2

Conclusive screening is reserved until the filing fee is paid or
IFP status is granted. See Izquierdo v. New Jersey, 532 F. App’x
71, 73 (3d Cir. 2013) (district court should address IFP
application prior to conclusive screening of complaint under 28
U.S.C. § 1915(e)(2)).
2

Case 1:21-cv-00032-RMB-AMD Document 2 Filed 01/07/21 Page 3 of 5 PageID: 6

Gamble, 429 U.S. 97, 106 (1976)). Thus, “a pro se complaint,
however

inartfully

standards

than

pleaded,

formal

must

pleadings

be

held

to

drafted

by

‘less

stringent

lawyers.’”

Id.

(internal quotation marks omitted). 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 alleged.”
Id. (quoting Twombly, 550 U.S. at 556.) Legal conclusions, together
with threadbare recitals of the elements of a cause of action, do
not suffice to state a claim. Id.
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.” Id. at
679. “While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.” Id. If
a complaint can be remedied by an amendment, a district court may
not dismiss the complaint with prejudice but must permit the
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Case 1:21-cv-00032-RMB-AMD Document 2 Filed 01/07/21 Page 4 of 5 PageID: 7

amendment. Grayson v. Mayview State Hospital, 293 F.3d 103, 108
(3d Cir. 2002).
For the reasons discussed below, the Court would dismiss the
complaint for lack of jurisdiction upon conclusive screening of
the Complaint.
II.

DISCUSSION
Plaintiff

alleges

solely

a

common

law

negligence

claim

against the United States of America, Warden David Ortiz, Director
of the Bureau of Prisons Michael Carvajal, and Attorney General
William Barr because Plaintiff tested positive for COVID-19 in
FCI-Fort Dix due to their alleged negligence in stopping the spread
of the virus. (Compl., Dkt. No. 1.) Plaintiff disclaims that he
wants to bring a Bivens action.
Federal courts are courts of limited jurisdiction. 28 U.S.C.
§ 1331. Plaintiff wishes to bring a common law negligence claim.
“[T]he United States has not waived its sovereign immunity with
respect to common law negligence claims, except to the extent
provided in the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§
2671 et seq.”

N'Jai v. U.S. E.P.A., No. CIV.A. 13-1212, 2014 WL

2508289, at *23 (W.D. Pa. June 4, 2014). “[A]n action against the
United States under the FTCA provides the exclusive remedy for
nonconstitutional torts based on the “negligent or wrongful act or
omission of any employee of the Government while acting within the
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Case 1:21-cv-00032-RMB-AMD Document 2 Filed 01/07/21 Page 5 of 5 PageID: 8

scope of his office or employment.” Couden v. Duffy, 446 F.3d 483,
498 (3d Cir. 2006) (quoting 28 U.S.C. § 2679(b)(1); see also Castro
v. United States, 34 F.3d 106, 110 (2d Cir. 1994) (finding that “a
claimant's

exclusive

remedy

for

nonconstitutional

torts

by

a

government employee acting within the scope of his employment is
a suit against the government under the FTCA”)).
Plaintiff does not allege diversity jurisdiction, nor does it
appear

to

exist;

and

the

Court

cannot

exercise

supplemental

jurisdiction over state law claims when the Complaint does not
contain

a

federal

law

claim.

See

28

U.S.C.

§§

1332,

1367.

Therefore, unless amended, the Court would dismiss the Complaint
for lack of jurisdiction upon conclusive screening under 28 U.S.C.
§ 1915(e)(2)(B), § 1915A(b)(1) and 42 U.S.C. § 1997e(c)(1).
III. CONCLUSION
The

Court

will

administratively

terminate

this

action,

subject to reopening. An appropriate Order follows.

DATE:

January 7, 2021
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

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