Opinion
CIVIL ACTION NO. 3:CV-13-2404
04-23-2014
JIM FLINT MCINTRYE, Plaintiff v. UNITED STATES OF AMERICA, et al., Defendants
(Judge Mannion)
(Magistrate Judge Blewitt)
MEMORANDUM AND ORDER
I. BACKGROUND.
On September 18, 2013, Plaintiff, Jim Flint Mclntrye, a federal prisoner confined at an undisclosed location seemingly in the Witness Protection Program, filed, pro se, this Bivens civil rights action, pursuant to 28 U.S.C. §1331, and Federal Tort Claims Act ("FTCA") action, pursuant to 28 U.S.C. § 1346 and §2671, et seq. Plaintiff filed his action in the United States District Court for the Middle District of Pennsylvania since he states that he was previously confined at USP-Allenwood, i.e., in November 2011. (Doc. 1). Plaintiff's address is listed as Inmate Monitoring Section, 320 First Street, N.W., Room 528,Washington, DC.
Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S. 388, 91 S.Ct. 1999(1971). Plaintiff's action falls within 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of aM civil actions arising under the Constitution, laws or treaties of the United States." (Emphasis added).
This is a Bivens action, in part, since Plaintiff seeks monetary damages from federal officials for alleged violations of his constitutional rights. See Oriakhi v. Wood, 2006 WL 859543, *1 n. 1 (M.D. Pa.); Conway v. Lindsay, 2009 WL 1956282 (M.D. Pa.).
Plaintiff also filed a Motion to proceed in forma pauperis. (Doc. 3).
In his original Complaint, Plaintiff raised an FTCA claim against Defendant United States. (Doc. 1). Plaintiff stated that the Government violated the terms of his plea agreement and a July 2011 Order of the U.S. District Court for the Western District of Texas by failing to advise County officials in Texas of his cooperation and to keep him separated while in their custody from the members of the Aryan Brotherhood of Texas ("ABT"). Plaintiff also stated that the Government violated his plea agreement when he arrived at USP-Allenwood in November 2011, seemingly to commence serving his federal sentence of mandatory life imprisonment. Plaintiff averred that prison officials at USP-Allenwood failed to review his BOP records (Central Inmate File) which contained an Administrative Detention Order ("ADO") and indicated that he had cooperated with the Government against the ABT, that he had a "hit" on him and, that he was a former ABT member. Plaintiff averred that despite his BOP file and the previously issued ADO showing his need to be separated from all ABT members, Defendant prison officials at USP-Allenwood failed to prepare a new ADO when he arrived there on November 7, 2011. Further, Plaintiff alleged that Defendant prison officials at USP-Allenwood failed to indicate in his file why he needed to be kept in Administrative Detention and not in general population. Plaintiff also stated that he informed Defendant prison staff at USP-Allenwood about his prior cooperation with the Government and his need to be separated from ABT members. Plaintiff averred that he was initially placed into Administrative Detention ("AD") in the SHU at USP-Allenwood, but after supervisory Defendants reviewed his BOP file and his Pre-Sentence Investigation Report ("PSI"), they approved for him to be released from AD in the SHU and to be placed into general population at the prison. Plaintiff also stated that he was placed in the same cell in general population at USP-Allenwood with a known violent member of the ABT who was recently released from the SMU.
In his original Complaint, Plaintiff did not allege that he was physically assaulted by any inmates at USP-Allenwood but he averred that Defendants' alleged conduct caused him "to suffer loss that has caused damage to [his] health, mentally and physically." In his later filings, including his Doc. 31 Declaration, Plaintiff avers that on November 10, 2011, he was severely beaten unconscious and stabbed 22 times by inmates at USP-Allenwood, and that he had to rushed by ambulance to the Williamsport Hospital and then transferred to Geisinger Medical Center due to his serious injuries. Plaintiff states that he had an operation and remained hospitalized until November 18, 2011.
Thus, in his original Complaint, Plaintiff asserted a negligence claim under the FTCA against Defendant United States and he alleged that this Defendant breached his plea agreement and breached its duty of care it owed to him by failing to keep him separated from members of the ABT while in BOP custody. Plaintiff also asserted constitutional claims, including due process and Eighth Amendment claims, under Bivens against the five individual Defendants who were employed by the BOP at USP-Allenwood, essentially claiming that they failed to protect him.
As relief, Plaintiff sought a declaratory judgment for the Court to declare that Defendants acted negligently and in violation of his constitutional rights. Plaintiff also sought the Court to declare Civil Contempt against Defendant United States. Plaintiff also requested damages for pain and suffering caused by Defendants' conduct.
In both his original Complaint and his Doc. 28 Amended Complaint, Plaintiff requests, in part, for this Court to issue a declaratory judgment and to declare that all of the acts he alleged were committed by Defendants in November 2011, at USP-Allenwood violated his constitutional rights. We find that such a request is subject to dismissal. See Blakeney v. Marsico, 340 Fed.Appx. 778, 780 (3d Cir. 2009).
Specifically, Plaintiff requested damages "in no event less than $1, 500,000.00 from the Defendant United States of America. And in no event less than $1, 750,000.00 from [the five individual] Defendants." Plaintiff also requested payment by Defendants of his medical bills of at least $141,667.47, as well as his future medical bills, despite the fact that the BOP paid for his medical care.
In both his original Complaint and his Doc. 28 Amended Complaint, Plaintiff seeks monetary damages against the five individual Defendants. Insofar as Plaintiff is suing the five individual Defendants for monetary damages, he can only sue these Defendants in their individual capacities. To the extent that Plaintiff is seeking monetary damages against the five Defendants, federal officials, Plaintiff can only seek monetary damages from these Defendants in their personal or individual capacities. See Breyerv. Meissner, 23 F. Supp. 2d 540, 544 (E.D. Pa. 1998); Douglas v. BOP, Civil NO. 08-0140 (M.D. Pa.); Debrew v. Auman, 354 Fed. Appx. 639, 641 (3d Cir. 2009)(Per Curiam). The law is clear that Bivens "only authorizes suit against federal officials in their individual capacities and not against the United States and federal agencies." Goodson v. Maggi, 2010 WL 1006901, *7 (W.D. Pa. 2-22-10). Thus, Plaintiff's claims for monetary damages to the extent they are against the five Defendants in their official capacities are subject to dismissal.
Further, Plaintiff seeks specific amounts of damages against all Defendants. Plaintiff's requests for specific amounts of monetary damages should be stricken. Since Plaintiff seeks unliquidated damages, he cannot claim specific sums of relief. Pursuant to Local Rule 8.1, M.D. Pa., Plaintiff's requests for specific monetary damages should be stricken from his Complaints. See Stuckey v. Ross, Civil No. 052354, M.D. Pa., 1906 Order, J. McClure; Said v. Donate, Civil No. 071550, M.D. Pa.
On October 7, 2013, the Court issued an Order granting Plaintiff's Motion for Leave to Proceed In Forma Pauperis, and directing service of Plaintiff's original Complaint on Defendants. (Doc. 11). The Summons was then issued as to all six Defendants. (Doc. 12).
On October 7, 2013, the Court also issued an Order granting Plaintiff's Motion to file all Documents in this case under seal. (Doc. 13).
Further, on October 7, 2013, the Court issued a Memorandum and Order denying Plaintiff's Motion to Appoint Counsel (Docs. 6 & 9-10).
On December 3, 2013, Plaintiff filed a Motion for Leave to file an Amended Complaint under Rule 15(a) and a support brief. (Docs. 21 & 23). Plaintiff attached his proposed Amended Complaint to his support brief. Plaintiff stated that since he filed his original Complaint, he received information from the BOP staff and was allowed to view a document which showed that portions of his original allegations were incorrect. We found that Plaintiff was not required to file a Motion to amend his Complaint since Defendants were not yet served with his original Complaint.
On December 12, 2013, the Summons was re-issued by the Clerk of Court regarding service of Plaintiff's original Complaint on all six Defendants. (Doc. 22).
On January 27, 2014, Plaintiff filed a Motion to Compel Defendants to Answer his Amended Complaint. (Doc. 25). Plaintiff also filed a support brief and his Declaration. (Docs. 26 & 27).
On January 28, 2014, Plaintiff filed his Amended Complaint against the original six Defendants. (Doc. 28). Plaintiff also filed another Motion for Leave of Court to File an Amended Complaint which was identical to his Doc. 21 Motion. (Doc. 29). Further, Plaintiff filed his support brief with attachments. (Doc. 30). Plaintiff also filed another Declaration. (Doc. 31).
On January 29, 2014 we issued a Memorandum and Order finding that the Court in its discretion should grant Plaintiff's requests for leave to file an amended pleading. Thus, we directed the Clerk of Court to issue the Summons as to all six Defendants with respect to Plaintiff's Doc. 28 Amended Complaint and to have Defendants served with this amended pleading. We further denied as moot Plaintiff's Doc. 25 Motion to Compel Defendants to answer his Complaint since he was proceeding on his Doc. 28 Amended Complaint which was not served on any Defendant.
On March 3, 2014, Plaintiff filed a Motion for Leave to file a Second Amended Complaint under Rule 15(a) and a support brief. (Docs. 35 & 36). Plaintiff asked for sixty (60) days in which to file his proposed Second Amended Complaint. (Doc. 35). Plaintiff stated that since he filed his Amended Complaint, he received "several 'Sealed' Sworn Declarations, from individuals employeed [sic] by the United States of America, and Guadalup County Adult Detention Center (CCADC) that contradict the crux of his claims within his Complaints." (Id.). We found that Plaintiff's Motion was moot as he was not required to file a Motion to for Leave to File a Second Amended Complaint since Defendants were not yet served with his original or Amended Complaint.
On April 10, 2014, Plaintiff filed his Second Amended Complaint against the original six Defendants and an additional Defendant, Antonio Jenkins. (Doc. 38). Plaintiff also filed a Memorandum and Declaration in support of his Second Amended Complaint. (Docs. 40, 42). On April 16, 2014, Defendants filed their return of service of process. (Doc. 41). Because Defendants were not served until after Plaintiff filed his Second Amended Complaint, we will grant Plaintiff's prior request for leave to file a second amended pleading. Thus, we will direct the Clerk of Court to issue the Summons as to all seven Defendants with respect to Plaintiff's Doc. 38 Second Amended Complaint and to have Defendants served with this second amended pleading.
II. DISCUSSION.
Initially, we will direct that Plaintiff be deemed as proceeding on his Doc. 38 Second Amended Complaint.
Since Plaintiff filed his Motion for Leave to File a Second Amended Complaint before Defendants were served with his original or Amended Complaint, we find that Plaintiff was not required to file a Motion for Leave to File a Second Amended Complaint. See Rule 15(a) of the Federal Rules of Civil Procedure and Local Rule 15.1, M.D. Pa.; see also Santos v. Bledsoe, 2011 WL 3739355 (M.D. Pa. 8-23-11). Specifically, Plaintiff was not required to file a Motion for Leave to File a Second Amended Complaint, together with a proposed Second Amended Complaint and support brief, because Defendants were not yet served with his original or Amended Complaint. See Rule 15(a).
Rule 15(a) of the Federal Rules of Civil Procedure governs amendment of pleadings and provides as follows:
(a) Amendments Before Trial
(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.
(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b)
However, since Plaintiff filed a Motion for Leave to File a Second Amended Complaint, we shall consider it.
As Plaintiff recognizes, under Rule 15(a), it is within the Court's discretion to grant or deny a request for leave to file an amended pleading. Wright Miller & Kane, Federal Practice & Procedure, § 1504; Farmer v. Brennan, 511 U.S. 825, 845,114 S.Ct. 1970, 1983 (1994). Furthermore, as Plaintiff also recognizes, leave should be freely granted when doing so will promote the economic and speedy disposition of the whole case, will not cause undue delay or trial inconvenience, and will not prejudice the rights of any of the other parties to the case. Id.
The grant or denial of a motion for leave to amend or supplement is committed to the sound discretion of the District Court. Cureton v. NCAA, 252 F. 3d 267, 272 (3d Cir. 2001). The Court is well aware Rule 15(a) mandates that leave to amend "shall be freely given when justice so requires," however, if the amendment would be futile, it should not be permitted. See Forman v. Davis, 371 U.S. 178, 182 (1982). The futility exception means that a complaint, as amended, would fail to state a claim upon which relief can be granted. See Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). Further, "prejudice to the non-moving party is the touchstone" for denying leave to file an amended complaint. Cornell & Co., Inc. v. OSHA Review Comm'n., 573 F. 2d 820, 823 (3d Cir. 1978).
III. CONCLUSION.
We find that the Court in its discretion should grant Plaintiff's request for leave to file a second amended pleading. We do not find futility in allowing Plaintiff to amend his Complaint again, and we find that Plaintiff's Second Amended Complaint will promote the economic and speedy disposition of the whole case, will not cause undue delay or trial inconvenience, and will not prejudice the rights of any of the Defendants. As stated, Defendants were not yet served with Plaintiff's original or Amended Complaint as of the date of Plaintiff filing his Second Amended Complaint.
Thus, we will direct the Clerk of Court to issue the Summons as to all seven Defendants with respect to Plaintiff's Doc. 38 Second Amended Complaint and to have Defendants served with this amended pleading.
An appropriate Order will be issued.
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THOMAS M. BLEWITT
United States Magistrate Judge