United States District Court, D. South Carolina, Anderson/Greenwood Division
REPORT AND RECOMMENDATION OF MAGISTRATE
JACQUELYN D. AUSTIN, Magistrate Judge.
matter is before the Court on a motion to dismiss or, in the
alternative, for summary judgment filed by Defendant. [Doc.
36.] Plaintiff, proceeding pro se, brought this action
pursuant to the Federal Tort Claims Act ("FTCA").
[Doc. 1.] Pursuant to the provisions of 28 U.S.C. Â§
636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(e), D.S.C.,
this magistrate judge is authorized to review all pretrial
matters in proceedings involving litigation by individuals
proceeding pro se and to submit findings and recommendations
to the District Court.
proceeding pro se, filed this action on November 11,
2014. [Doc. 1.] On May 4, 2015, Defendant
filed a motion to dismiss or, in the alternative, for summary
judgment. [Doc. 36.] The same day, the Court issued an Order
pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th
Cir. 1975), advising Plaintiff of the dismissal procedure and
the possible consequences if he failed to adequately respond
to the motion. [Doc. 37.] On June 8, 2015, Plaintiff filed a
response in opposition to Defendant's motion. [Doc. 39.]
Accordingly, Defendant's motion is now ripe for review.
who was incarcerated at FCI Williamsburg in Salters, South
Carolina, at the time he filed this action,  seeks damages
from the United States based on an injury sustained during
his incarceration at FCI Fort Dix in New Jersey. [Doc. 1 at
1-5.] He alleges that on June 21, 2011, he fell while working
in the food service facilities at FCI Fort Dix. [
Id. at 3.] On June 29, 2011, he went to medical
services and was diagnosed with a backache and was prescribed
"[NSAIDS]"; he was also sent for an X-ray, which
revealed no significant injury. [ Id. ] He continued
to suffer pain, and he sought further treatment for his back
injury at FCI Fort Dix. [ Id. ] The prison officials
there refused, and he was subsequently transferred to FCI
Williamsburg. [ Id. ] The medical staff at FCI
Williamsburg evaluated Plaintiff's back and provided an
MRI, which revealed "degenerative changes, a disc
extrusion that interfered with his right [S1] nerve
root." [ Id. ]
receiving the MRI results, Plaintiff filed an administrative
claim under the FTCA, seeking damages for his personal
injury. [ Id. ] He alleges that on May 14, 2014, the
Northeast Regional Office of the Bureau of Prisons
("BOP") denied his personal injury tort claim
because it was not timely filed within the limitations
period. [ Id .; see also Doc. 1-4 at 2 (letter
denying FTCA claim because Plaintiff "failed to submit
[his] administrative claim within the time restrictions
contained in the applicable statutes and federal
regulations"; he "must seek compensation through
the Inmate Accident Compensation System (IAC), the exclusive
remedy for inmate work assignment accidents"; and
"[t]here is no evidence to suggest [he] experienced a
compensable loss as the result of negligence on the part of
any [BOP] employee").] Plaintiff brings this action
seeking to reverse the BOP's administrative decision or
for judgment in his favor pursuant to the FTCA. [
Id. at 5.]
Construction of Pro Se Complaint
brought this action pro se, which requires the Court to
liberally construe his pleadings. Estelle v. Gamble,
429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S.
519, 520 (1972); Loe v. Armistead, 582 F.2d 1291,
1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d
1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a
less stringent standard than those drafted by attorneys.
Haines, 404 U.S. at 520. Even under this less
stringent standard, however, the pro se complaint is still
subject to summary dismissal. Id. at 520-21. The
mandated liberal construction means only that if the court
can reasonably read the pleadings to state a valid claim on
which the petitioner could prevail, it should do so.
Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir.
1999). A court may not construct the plaintiff's legal
arguments for him. Small v. Endicott, 998 F.2d 411,
417-18 (7th Cir. 1993). Nor should a court "conjure up
questions never squarely presented." Beaudett v.
City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
to Dismiss Standards
motion to dismiss under Rule 12(b)(1) examines whether the
complaint fails to state facts upon which jurisdiction can be
founded. Fed.R.Civ.P. 12(b)(1). It is the plaintiff's
burden to prove jurisdiction, and the court is to
"regard the pleadings' allegations as mere evidence
on the issue, and may consider evidence outside the pleadings
without converting the proceeding to one for summary
judgment." Richmond, Fredericksburg & Potomac R.R.
Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
To resolve a jurisdictional challenge under Rule 12(b)(1),
the court may consider undisputed facts and any
jurisdictional facts that it determines. See id. The
court may dismiss a case for lack of subject matter
jurisdiction on any of the following bases: "(1) the
complaint alone; (2) the complaint supplemented by undisputed
facts evidenced in the record; or (3) the complaint
supplemented by undisputed facts plus the court's
resolution of disputed facts.'" Johnson v.
United States, 534 F.3d 958, 962 (8th Cir. 2008)
(quoting Williamson v. Tucker, 645 F.2d 404, 413
(5th Cir. 1981)).
Rule 12(b)(6) of the Federal Rules of Civil Procedure, a
motion to dismiss for failure to state a claim should not be
granted unless it appears certain that the plaintiff can
prove no set of facts which would support her claim and
entitle her to relief. When considering a motion to dismiss,
the court should "accept as true all well-pleaded
allegations and should view the complaint in a light most
favorable to the plaintiff." Mylan Labs., Inc. v.
Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, the
court "need not accept the legal conclusions drawn from
the facts" nor "accept as true unwarranted
inferences, unreasonable conclusions, or arguments."
Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd.
P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Further,
for purposes of a Rule 12(b)(6) motion, a court may rely on
only the complaint's allegations and those documents
attached as exhibits or incorporated by reference.
SeeSimons v. Montgomery Cnty. Police
Officers, 762 ...