United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
LEO T. SOROKIN, UNITED STATES DISTRICT JUDGE.
For the reasons set forth below, the Court orders that (1) the United States be added as a defendant; (2) a summons issue as to the United States; and (3) the plaintiff complete service on the United States within 60 days of the date of this order. The Court also orders that the Federal Bureau of Prisons and claims against individual defendants acting in their official capacities be dismissed. Finally, the Court denies without prejudice the plaintiff's motion for service by the United States Marshals Service and his motions for appointment of counsel. I. BACKGROUND Ahmed Mohammed Al-Haj, who is incarcerated at FCI Fairton in New Jersey, brings this action under the Federal Tort Claims Act ("FTCA") and Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) in regards to his contraction of tuberculosis ("TB") and lack of treatment therefore. He brings this action against the Federal Bureau of Prisons ("BOP") and the superintendents, clinical directors, and medical personnel of FMC Devens and FCI Fairton. He asserts claims against the individual defendants acting in their individual and official capacities.
According to the plaintiff, he contracted TB in 2011 while at FMC Devens . Al-Haj asserts that he contracted TB because of the defendants' failure to adequately screen prison employees and inmates for TB and to institute safeguards to prevent the transmission of the disease. The plaintiff further alleges that, although the defendants acknowledged in August 2012 that he had TB, he did not receive any treatment for his condition until he was transferred from FMC Devens to FCI Fairton in December 2012. Al-Haj seeks $5, 000, 000 in damages; he does not request injunctive relief.
The plaintiff filed this action in the United States District Court for the District of Columbia. He sought leave to proceed in forma pauperis. The court issued an order requiring him to submit a six-month prison account statement. Instead of providing this information, the plaintiff paid the filing fee. Prior to the issuance of summonses, the case was transferred to the District of Massachusetts. Summonses issued as to all defendants. The plaintiff has not completed service but he has filed a motion for service by the United States Marshals Service or by a special process server. He also filed two motions for appointment of counsel. II. DISCUSSION A. The Court's Authority to Screen the Complaint Under 28 U.S.C. § 1915A, prisoner complaints in civil actions that seek redress from a governmental entity or officers or employees of a governmental entity are subject to a preliminary screening. This statute authorizes a federal district court to dismiss a complaint sua sponte if the claims therein are frivolous, malicious, fail to state a claim on which relief may be granted, or seek monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b). In conducting this review, the Court liberally construes the complaint because the plaintiff is proceeding pro se. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
B. Sovereign Immunity: Claims Against the Federal Bureau of Prisons and Individual Defendants Acting in Their Official Capacities
Under the doctrine of sovereign immunity, the United States (including its various branches, departments, agencies, and federal official acting in their official capacities) enjoys immunity from suit except in those instances in which it has expressly consented to be sued. See FDIC v. Meyer, 510 U.S. 471, 475 (1994); McCloskey v. Mueller, 446 F.3d 262, 271-72 (1st Cir.2006). A waiver of sovereign immunity must be expressly and unequivocally found in the statutory text and cannot be implied. See Lane v. Pena, 518 U.S. 187, 192 (1996).
By passing the Federal Tort Claims Act ("FTCA"), Congress waived the sovereign immunity of the United States for certain tort claims for monetary damages. See 28 U.S.C. §§ 1346(b), 2671-2680; Barrett ex rel. Estate of Barrett v. United States, 462 F.3d 28, 36 (1st Cir. 2006). However, the United States is the only proper defendant in an action under the FTCA. See 28 U.S.C. §§ 1346(b), 2674, 2679; McCloskey v. Mueller, 446 F.3d 262, 266 (1st Cir. 2006).
Although the plaintiff properly filed his administrative claim with the Federal Bureau of Prisons, see id.; see also 28 C.F.R. § 14.2(b)(1) (for purposes of filing an administrative claim under the FTCA, the appropriate federal agency is the agency “whose activities gave rise to the claim"), a litigant bringing a subsequent action under the FTCA in federal court must assert such claim against the United States. The FTCA's waiver of sovereign immunity does not permit the lawsuit to be brought against the federal agency to which the administrative claim was directed.
Rather than require the plaintiff to file an amended complaint to remedy his failure to name the United States as a defendant, the Court will order that the United States be substituted for the BOP as a defendant in regards to Al-Haj's claim under the FTCA.
With the exception of a claim against the United States under the FTCA, Al-Haj has not brought any claims against the BOP or the individual defendants acting their official capacities for which the United States has waived its sovereign immunity. A Bivens claim does not sound against the United States, its agencies, or its officers acting in their official capacities. See McCloskey v. Mueller, 446 F.3d 262, 271-72 (1st Cir.2006). Accordingly, the Court will dismiss the BOP as a defendant and the official capacity claims against the defendants.
C. Claims Against the Individual Defendants Acting in Their Individual Capacities
The summons previously issued against the individual defendants shall be withdrawn because Al-Haj has failed to state a claim upon which relief may be granted against any of them.
To state a claim upon which relief may be granted, the complaint must, at a minimum, include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The complaint must “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Calvi v. Knox County, 470 F.3d 422, 430 (1st Cir. 2006) (quoting Educadores Puertorriqueños en Acción v. Hernández, 367 F.3d 61, 66 (1st Cir. 2004)). This means that the statement of the claim must “at least set forth minimal facts as to who did what to whom, when, where, and why.” Id. (quoting Educadores, 367 F.3d at 68). Although the requirements of Rule 8(a)(2) are minimal, “minimal requirements are not tantamount to nonexistent requirements.” Id. (quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir. 1988)). The plaintiff’s obligation to provide the grounds of his claim “requires more than labels and conclusions.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A court is not “bound to accept as true a legal conclusion couched as a factual allegation, ” and “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. (quoting in part Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of a cause action, supported by mere conclusory statements, do not suffice.”).
In the context of a Bivens claim, a plaintiff must allege specific facts from which the Court may reasonably infer that each individual defendant was directly involved the alleged deprivation of constitutional rights--“respondeat superior is not a viable theory of Bivens ...