United States District Court, D. South Carolina
ORDER REGARDING AMENDMENT OF COMPLAINT
J. GOSSETT, UNITED STATES MAGISTRATE JUDGE.
plaintiff, Michael Maxwell Barkley, proceeding pro
se, brings this civil action against the defendant. The
Complaint has been filed pursuant to 28 U.S.C. § 1915A.
This matter is before the court pursuant to 28 U.S.C. §
636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). Having
reviewed the Complaint in accordance with applicable law, the
court finds this action is subject to summary dismissal if
Plaintiff does not amend the Complaint.
Factual and Procedural Background
formerly an inmate at FCI Williamsburg in South Carolina,
claims that on November 13, 2015, a pipe fell from the
ceiling and hit him in the head, causing injury. He claims
that despite receiving treatment for the injury, nothing has
relieved him of his suffering. He seeks damages for the
staff's negligence in not properly securing the pipe or
making the area safe, and for the deliberate indifference to
his medical needs since the accident. Plaintiff indicates
that he raises this claim pursuant to Bivens v. Six
Unkown Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971), seeking damages, and he indicates that he is
suing the defendant only in his official capacity.
Standard of Review
established local procedure in this judicial district, a
careful review has been made of the pro se Complaint
pursuant to the procedural provisions of 28 U.S.C. §
1915A and the Prison Litigation Reform Act
(“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321
(1996), which requires the court to review a complaint filed
by a prisoner that seeks redress from a governmental entity
or officer or employee of a governmental entity. See
McLean v. United States, 566 F.3d 391 (4th Cir. 2009).
Section 1915A requires a district court to dismiss the case
upon a finding that the action is frivolous, malicious, fails
to state a claim on which relief may be granted, or seeks
monetary relief against a defendant who is immune from such
relief. 28 U.S.C. § 1915A(b).
court is required to liberally construe pro se
complaints, which are held to a less stringent standard than
those drafted by attorneys. Erickson v. Pardus, 551
U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d
206, 214 (4th Cir. 2016). Nonetheless, the requirement of
liberal construction does not mean that the court can ignore
a clear failure in the pleading to allege facts which set
forth a claim cognizable in a federal district court. See
Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th
Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S.
662, 684 (2009) (outlining pleading requirements under Rule 8
of the Federal Rules of Civil Procedure for “all civil
extent Plaintiff raises these claims pursuant to
Bivens, Plaintiff fails to name an individual
amenable to suit. In Bivens, the United States
Supreme Court established a remedy for plaintiffs alleging
certain constitutional violations by federal officials to
obtain monetary damages in suits against federal officials in
their individual capacities. Bivens v. Six Unkown Agents
of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Based
on Bivens, courts have recognized that neither
federal agencies nor federal officials in their official
capacities can be sued for monetary damages in a
Bivens action. F.D.I.C. v. Meyer, 510 U.S.
471 (1994) (holding that a Bivens action cannot lie
against a federal agency); Doe v. Chao, 306 F.3d
170, 184 (4th Cir. 2002) (observing that “a
Bivens action does not lie against either agencies
or officials in their official capacity”); Randall
v. United States, 95 F.3d 339, 345 (4th Cir. 1996)
(“Any remedy under Bivens is against federal
officials individually, not the federal government.”).
Thus, a Bivens action is only cognizable against
federal officials in their personal or individual capacities,
and here, Plaintiff expressly indicates that he only brings
this action against the defendant in his official capacity.
(ECF No. 1 at 2.) But, even if the court liberally construed
the Complaint to state a claim against the defendant in his
individual capacity, Plaintiff has not named an individual in
the body of the Complaint that would indicate he seeks to
state a claim against them. Nor has Plaintiff provided any
facts to show the warden was personally involved in the
denial of Plaintiff's rights. See Iqbal, 556
U.S. at 676 (providing that a plaintiff in a § 1983
action must plead that the defendant, through his own
individual actions, violated the Constitution); Wright v.
Collins, 766 F.2d 841, 850 (4th Cir. 1985) (“In
order for an individual to be liable under § 1983, it
must be ‘affirmatively shown that the official charged
acted personally in the deprivation of the plaintiff's
rights. The doctrine of respondeat superior has no
application under this section.' ”) (quoting
Vinnedge v. Gibbs, 550 F.2d, 928 (4th Cir. 1977))..
Accordingly, to the extent Plaintiff seeks to raise a
Bivens claim in this matter, such a claim is subject
to summarily dismissal pursuant to § 1915A(b)(1).
the extent Plaintiff seeks to raise a tort claim of
negligence in this matter, Plaintiff's Complaint would be
deficient because he fails to indicate that he seeks to raise
a claim pursuant to the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 2671-2680,
1346(b) and name the proper defendant. The FTCA provides for
a limited waiver of the United States's sovereign
immunity from suit by allowing a plaintiff to recover damages
in a civil action for loss of property or personal injuries
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);
see also Medina v. United States, 259 F.3d 220, 223
(4th Cir. 2001) (“The statute permits the United States
to be held liable in tort in the same respect as a private
person would be liable under the law of the place where the
act occurred.”). Thus, the proper defendant in an
action pursuant to the FTCA is “the United States of
America” because federal agencies and individual
officials may not be sued under the FTCA. See 28
U.S.C. § 1346(b); F.D.I.C. v. Meyer, 510 U.S.
471, 477 (1994). Consequently, to the extent Plaintiff seeks
to raise a negligence claim pursuant to the FTCA, Plaintiff
failed to name the United States of America as a defendant,
and such a claim would be subject to summary dismissal
pursuant to 28 U.S.C. § 1915A(b)(1). Further, Plaintiff
would have to allege facts showing he exhausted his
administrative remedies before federal jurisdiction could be
exercised over any FTCA claim. See 28 U.S.C. §
2675; Plyler v. United States, 900 F.2d 41, 42 (4th
Plaintiff's Complaint is subject to summary dismissal
pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state
a claim upon which relief can be granted. The Plaintiff is
hereby granted twenty-one (21) days from the
date this order is entered (plus three days for mail time) to
file an amended complaint pursuant to
Federal Rule of Civil Procedure 15(a) that corrects the
deficiencies identified above. If Plaintiff fails to file an
amended complaint that corrects those deficiencies, the court
will recommend that the action be summarily dismissed by the
assigned district judge.
IS SO ORDERED.
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