Lopez v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

JULIO LOPEZ,

Plaintiff, CIVIL ACTION NO. 3:22-CV-00760

v.

(MEHALCHICK, M.J.)

UNITED STATES, et al.,

Defendants.

MEMORANDUM

Before the Court is a motion to dismiss and/or for summary judgment filed by

Defendants the United States, the Federal Bureau of Prisons (“BOP”), the National Gang

Unit Agency, and Security Investigation Service (“S.I.S.”) (collectively, “Defendants”). (Doc.

16). Pro se prisoner-Plaintiff Julio Lopez (“Lopez”) has neither filed a response nor a motion

seeking an extension of time to do so. Accordingly, because the time for filing a response has

expired, Defendants’ motion is ripe for disposition. The parties have consented to proceed

before the undersigned United States Magistrate Judge pursuant to Fed. R. Civ. P. 73 and 28

U.S.C. § 636(c). (Doc. 22).

For the following reasons, the motion to dismiss and/or for summary judgment shall

be GRANTED.

I. BACKGROUND AND PROCEDURAL HISTORY

This pro se civil rights action was initiated on May 23, 2022, pursuant to 42 U.S.C. §

1983, Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and

the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346, by the filing of a complaint in the

related action, Bran v. United States, on behalf a purported class of prisoners. (Doc. 1; Doc.

12). On June 9, 2022, prisoner-Plaintiff Lopez, a prisoner incarcerated in the United States

Penitentiary Lewisburg, Pennsylvania (“USP Lewisburg”), elected to proceed with this civil

rights action by filing a motion for leave to proceed in forma pauperis. (Doc. 4). On August 15,

2022, Lopez filed the amended complaint asserting claims against Defendants. (Doc. 12, ¶¶

4-6). After completion of service on August 31, 2022, Defendants filed the motion to dismiss,

or in the alternative, for summary judgment on October 31, 2022, as well as a brief in support

and statement of facts, arguing that: (1) the Court lacks subject matter jurisdiction over

Lopez’s Bivens claims the BOP and official capacity claims against individual BOP employees

because those claims are barred by sovereign immunity; (2) Lopez failed to satisfy the Prison

Litigation Reform Act (“PLRA”) requirement of exhausting available administrative

remedies before commencing this lawsuit; and (3) the Court lacks subject matter jurisdiction

over Lopez’s FTCA claim because Lopez failed to submit an administrative tort claim to the

BOP before filing his complaint. (Doc. 16; Doc. 17; Doc. 18). On December 13, 2022, and

January 10, 2023, the Court directed Lopez to file a brief in opposition to Defendants’ motion.

(Doc. 23; Doc. 24). As noted supra, Lopez has not filed a response.

A. SUMMARY OF THE AMENDED COMPLAINT

Lopez alleges that since January 31, 2022, he has been “housed in isolation segregation

confinement under severe conditions and harsh punishment based upon decision of

defendants,” in the special housing unit (“SHU”) in the United States Penitentiary Big Sandy,

Kentucky. (Doc. 12, ¶¶ 8, 10). Lopez contends he did not violate any prison rule, his

confinement in isolation is premised upon his MS-13 membership, and Defendants’ have

repeatedly denied his request for a “lockup order,” which Lopez claims is an official report

that states the reasons why an inmate is being sent to the SHU. (Doc. 12, ¶¶ 11-12).

On March 7, 2022, at around 8 p.m., Lopez, along with fellow MS-13 inmates, was

escorted out of the SHU at USP Big Sandy, placed on a bus containing other MS-13 inmates

coming from the USP Lee, Virginia, driven to USP Hazelton, West Virginia, to pick up more

MS-13 inmates, and ultimately brought to the special management unit (“SMU”) program at

USP Lewisburg. (Doc. 12, ¶ 16). Lopez alleges his confinement in the SMU has exposed him

to hostility and harsh and inhumane conditions, including the deprivation of phone time,

emails, law library access, freedom to move around and take daily showers, interact with

other inmates, and access to education programs. (Doc. 12, ¶ 36). Lopez avers that

Defendants actions caused him pain, suffering, injury, and emotional and psychological

distress. (Doc. 12, ¶¶ 28-33). As relief, Lopez seeks declaratory judgment, injunctive relief,

and compensatory and punitive damages. (Doc. 12, ¶¶ 34-40).

B. STATEMENT OF MATERIAL FACTS1

Plaintiff Lopez is a federal inmate who is presently designated to the USP Lewisburg,

where he is serving a 320-month sentence imposed in the United States District Court for the

Western District of North Carolina for various offenses of the Racketeer Influenced and

1 The Local Rules provide that in addition to the requirement that a party file a brief

in opposition to the moving party's brief in support of its motion, “[t]he papers opposing a

motion for summary judgment shall include a separate, short and concise statement of

material facts responding to the numbered paragraphs set forth in the statement [of material

facts filed by the moving party] . . . as to which it is contended that there exists a genuine issue

to be tried.” See M.D. Pa. L.R. 56.1. The Rule further requires the inclusion of references to

the parts of the record that support the statements. See M.D. Pa. L.R. 56.1. Finally, the Rule

states that the statement of material facts required to be served by the moving party will be

deemed to be admitted unless controverted by the statement required to be served by the

opposing party. See M.D. Pa. L.R. 56.1. Unless otherwise noted, the background herein is

derived from Defendants’ Rule 56.1 statement of facts. (Doc. 17). Lopez has not filed a

response to Defendants’ statement of material facts in compliance with Local Rule 56.1.

Accordingly, the Court deems the facts set forth by Defendants to be undisputed. See Fed. R.

Civ. P. 56(e)(2); M.D. Pa. L.R. 56.1; United States v. Alberto, No. 3:18-CV-1014, 2020 WL

730316, at *2 (M.D. Pa. Feb. 13, 2020) (concluding that the “[f]ailure to file this [responsive

statement of material facts] results in admission of the moving party's statement of facts”).

Corrupt Organizations Act (the “RICO Act”). (Doc. 17, ¶ 1; Doc. 17-1, ¶ 3, at 5-7). Lopez’s

release date is presently calculated as February 23, 2033. (Doc. 17, ¶ 1; Doc. 17-1, ¶ 3, at 5).

The BOP’s computerized record of Lopez’s administrative remedy submissions shows that

he has filed three administrative remedies during his federal imprisonment which consist of

two disciplinary appeals and a request for transcripts. (Doc. 17, ¶ 2; Doc. 17-1, ¶ 5, at 9-10).

Lopez has filed no administrative remedies concerning his transfer to USP Lewisburg or the

conditions of his confinement at that facility. (Doc. 17, ¶ 3; Doc. 17-1, ¶ 5, at 9-10).

II. LEGAL STANDARDS

A. MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(B)(1)

The United States moves for dismissal of Lopez’s complaint pursuant to Rule 12(b)(1)

of the Federal Rules of Civil Procedure, asserting that the Court lacks subject-matter

jurisdiction over Lopez’s FTCA claims. (Doc. 18, at 11-12). The plaintiff bears the burden of

demonstrating that subject-matter jurisdiction exists. See Lightfoot v. United States, 564 F.3d

625, 627 (3d Cir. 2009). When ruling on a Rule 12(b)(1) motion, the Court “must accept as

true the allegations contained in the plaintiff's complaint, except to the extent federal

jurisdiction is dependent on certain facts.” See Fed. Realty Inv. Trust v. Juniper Props. Grp., No.

99-3389, 2000 WL 45996, at *3 (E.D. Pa. Jan. 21, 2000) (citing Haydo v. Amerikohl Mining,

Inc., 830 F.2d 494, 496 (3d Cir. 1987)).

B. MOTION FOR SUMMARY JUDGMENT2

2 Defendants initially styled motion as a “motion to dismiss and/or motion for

summary judgment,” however, their brief in support is solely submitted under the summary

judgment standard. When a party moves to dismiss, but where “matters outside the pleadings

are presented to and not excluded by the court, the motion must be treated as one for summary

judgment under Rule 56.” Fed. R. Civ. P. 12(d). The decision of whether a motion to dismiss

should be converted into a motion for summary judgment is left to the sound discretion of the

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be

granted only if “there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” only if it might

affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

dispute of material fact is “genuine” if the evidence “is such that a reasonable jury could return

a verdict for the non-moving party.” Anderson, 477 U.S. at 248. In deciding a summary

judgment motion, all inferences “should be drawn in the light most favorable to the non-

moving party, and where the non-moving party’s evidence contradicts the movant’s, then the

non-movant’s must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir.

1994). However, a party opposing a summary judgment motion must comply with Local Rule

56.1, which specifically directs the oppositional party to submit a “statement of the material

facts, responding to the numbered paragraphs set forth in the statement required [to be filed

by the movant], as to which it is contended that there exists a genuine issue to be tried”; if the

nonmovant fails to do so, “[a]ll material facts set forth in the statement required to be served

by the moving party will be deemed to be admitted.” See M.D. Pa. L.R. 56.1. A party cannot

evade these litigation responsibilities in this regard simply by citing the fact that he is a pro se

litigant. These rules apply with equal force to all parties. Morrison v. United States, No. 1:20-

district court. Kulwicki v. Dawson, 969 F.2d 1454, 1463 n.11 (3d Cir. 1992). Typically, when a

court converts a motion to dismiss into a motion for summary judgment under Rule 56, notice

must be given to all parties of the Court's intent to do so. See Fed. R. Civ. P. 12(d); Garcia v.

Newtown Twp., No. 09-CV-3809, 2010 WL 785808, at *3 (E.D. Pa. Mar. 5, 2010). However,

if a motion to dismiss has been filed with an alternative request for summary judgment, the

alternative filing is sufficient to place the parties on notice that summary judgment might be

entered. Rivera v. Finley, 2022 WL 14915563, at *3 (M.D. Pa. 2022); citing Latham v. United

States, 306 Fed. Appx. 716, 718 (3d Cir.2009) (citing Hilfirty v. Shipman, 91 F.3d 573, 578–79

(3d Cir.1996), overruled on other grounds, Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 791

(3d Cir. 2000)).

CV-01571, 2021 WL 4192086, at *3 (M.D. Pa. Sept. 15, 2021) (citing Mala v. Crown Bay

Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (noting that pro se parties “cannot flout

procedural rules—they must abide by the same rules that apply to all other litigants”)).

A federal court should grant summary judgment “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000).

In deciding a motion for summary judgment, the court’s function is not to make credibility

determinations, weigh evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249.

Rather, the court must simply “determine whether there is a genuine issue for trial.” Anderson,

477 U.S. at 249.

The party seeking summary judgment “bears the initial responsibility of informing the

district court of the basis for its motion,” and demonstrating the absence of a genuine dispute

of any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant makes

such a showing, the non-movant must go beyond the pleadings with affidavits or declarations,

answers to interrogatories, or the like to demonstrate specific material facts which give rise to

a genuine issue. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324. The non-movant must produce

evidence to show the existence of every element essential to its case, which it bears the burden

of proving at trial, because “a complete failure of proof concerning an essential element of the

nonmoving party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at

323. Furthermore, mere conclusory allegations and self-serving testimony, whether made in

the complaint or a sworn statement, cannot be used to obtain or avoid summary judgment

when uncorroborated and contradicted by other evidence of record. See Lujan v. Nat’l Wildlife

Fed’n, 497 U.S. 871, 888 (1990); see also Thomas v. Delaware State Univ., 626 F. App’x 384, 389

n.6 (3d Cir. 2015) (not precedential) (“[U]nsupported deposition testimony, which is

contradicted by the record, is insufficient to defeat summary judgment.”); Nat’l Labor Rel. Bd.

v. FES, 301 F.3d 83, 95 (3d Cir. 2002) (“[The plaintiff’s] testimony . . . amounts to an

unsupported, conclusory assertion, which we have held is inadequate to satisfy the movant’s

burden of proof on summary judgment.”).

C. BIVENS ACTION

A Bivens civil rights action asserted under 28 U.S.C. § 1331 is evaluated using the same

standards applicable to a 42 U.S.C. § 1983 civil rights action. See Paton v. LaPrade, 524 F.2d

862, 871 (3d Cir. 1975); Veteto v. Miller, 829 F. Supp. 1486, 1492 (M.D. Pa. 1992). To state a

claim under Bivens, a plaintiff must allege that he was deprived of a federal right by a person

acting under color of federal law. See Young v. Keohane, 809 F. Supp. 1185, 1199 (M.D. Pa.

1992).

III. DISCUSSION

Defendants assert that the Court should grant its motion to dismiss and/or for

summary judgment because (1) any Bivens claims against the United States and any individual

officials sued in their official capacities are barred by the doctrine of sovereign immunity; (2)

the PLRA claims fail because Lopez failed to exhaust administrative remedies; and (3) the

FLMA claims fail because Lopez failed to present an administrative tort claim to the BOP

and receive a written denial of that claim before filing the instant action. (Doc. 18, at 6-12).

A. SOVEREIGN IMMUNITY

Lopez asserts constitutional claims against Defendants in their official capacities.

(Doc. 12, ¶ 7). The doctrine of sovereign immunity, however, bars suits against the United

States unless the Government has waived that immunity. See FDIC v. Meyer, 510 U.S. 471,

483 (1994). Sovereign immunity extends to individual officers acting in their official

capacities, absent an explicit waiver. See Treasurer of N.J. v. U.S. Dep't of Treasury, 684 F.3d

382, 395 (3d Cir. 2012). “Bivens, however, does not waive sovereign immunity with respect

to claims brought against federal employees sued in their official capacities.” Gomez v. Cullen,

No. 1:20-CV-01637, 2021 WL 2312779, at *8 (M.D. Pa. June 7, 2021), aff'd, No. 21-2776,

2022 WL 1183713 (3d Cir. Apr. 21, 2022) (citation omitted). Specifically, the Third Circuit

has concluded that “[t]he United States, FBOP, and the individual FBOP employees in their

official capacity . . . are barred from suit by the doctrine of sovereign immunity.” Perez-Barron

v. United States, 480 F. App’x 688, 691 (3d Cir. 2012) (citing Meyer, 510 U.S. at 486; Chinchello

v. Fenton, 805 F.2d 126, 130 n.4 (3d Cir. 1986)). Thus, Lopez’s official capacity claims against

Defendants are essentially claims against the United States that are subject to dismissal

because of sovereign immunity. See Brooks v. Bledsoe, 682 F. App'x 164, 169 (3d Cir. 2017).

Accordingly, Lopez’s Bivens claims are dismissed as Defendants’ are entitled to

sovereign immunity.

B. EXHAUSTION OF ADMINISTRATIVE REMEDIES

Moving to dismiss the amended complaint, Defendants assert that “[e]ven if [Lopez]

had named individual defendants, the Court cannot decide the merits of his Bivens claims

because [Lopez] failed to exhaust his administrative remedies, and therefore, violated the

PLRA and deprive the BOP of the ability to consider his claims on the merits before he filed

his complaint.” (Doc. 18, at 8).

Pursuant to the PLRA, a prisoner must pursue all available avenues of relief through

the applicable grievance system before initiating a federal civil rights action. See 42 U.S.C. §

1997e(a); Booth v. Churner, 532 U.S. 731, 741 n.6 (2001) (“[A]n inmate must exhaust

irrespective of the forms of relief sought and offered through administrative avenues.”).

Section 1997e provides, in relevant part, that “[n]o action shall be brought with respect to

prison conditions under [S]ection 1983 of this title, or any other [f]ederal law, by a prisoner

confined in any jail, prison, or other correctional facility until such administrative remedies

as are available are exhausted.” See 42 U.S.C. § 1997e(a). The exhaustion requirement is

mandatory. See Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007); see also Booth, 532 U.S. at

742 (holding that the exhaustion requirement of the PLRA applies to grievance procedures

“regardless of the relief offered through administrative procedures”).

The Third Circuit has further provided that there is no futility exception to Section

1997e's exhaustion requirement. See Nyhuis v. Reno, 204 F.3d 65, 75-76 (3d Cir. 2000). Courts

have typically required across-the-board exhaustion by inmates seeking to pursue claims in

federal court. See Nyhuis, 204 F.3d at 75-76. Additionally, courts have interpreted this

exhaustion requirement as including a procedural default component, holding that inmates

must fully satisfy the administrative requirements of the inmate grievance process before

proceeding with a claim in federal court. See Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004); see

also Oriakhi v. United States, 165 F. App’x 991, 993 (3d Cir. 2006) (providing that “there

appears to be unanimous circuit court consensus that a prisoner may not fulfill the PLRA’s

exhaustion requirement by exhausting administrative remedies after the filing of the

complaint in federal court”). Courts have also concluded that inmates who fail to complete

the prison grievance process in a full and timely manner are barred from subsequently

litigating claims in federal court. See, e.g., Booth v. Churner, 206 F.3d 289 (3d Cir. 2000); Bolla

v. Strickland, 304 F. App'x 22 (3d Cir. 2008).

This broad rule favoring full exhaustion allows for a narrowly-defined exception; if the

actions of prison officials directly caused the inmate’s procedural default as to a grievance,

the inmate will not be required to comply strictly with this exhaustion requirement. See Camp

v. Brennan, 219 F.3d 279 (3d Cir. 2000). However, courts also recognize a clear “reluctance

to invoke equitable reasons to excuse [an inmate’s] failure to exhaust as the statute requires.”

See Davis v. Warman, 49 F. App’x 365, 368 (3d Cir. 2002). Thus, an inmate’s failure to exhaust

will be excused only “under certain limited circumstances,” see Harris v. Armstrong, 149 F.

App’x 58, 59 (3d Cir. 2005), and an inmate may defeat a claim of failure to exhaust only by

showing “he was misled or that there was some extraordinary reason he was prevented from

complying with the statutory mandate.” See Warman, 49 F. App'x at 368.

“In the absence of competent proof that an inmate was misled by corrections officials,

or some other extraordinary circumstances warranting a departure from strict compliance

with the exhaustion requirement, courts frequently reject inmate requests for their failure to

exhaust to be excused.” Rodney X. v. United States, No. 1:18-CV-00903, 2021 WL 4844010, at

*7 (M.D. Pa. Oct. 18, 2021). An inmate, therefore, may not excuse a failure to comply with

these grievance procedures in a timely manner by simply claiming that his efforts constituted

“substantial compliance” with this statutory exhaustion requirement. See Harris, 149 F. App’x

at 59. Furthermore, an inmate may not avoid this exhaustion requirement by merely alleging

that the administrative policies were not clearly explained to him. See Warman, 49 F. App’x

at 368. Consequently, an inmate’s confusion regarding these grievance procedures does not,

alone, excuse a failure to exhaust. See Casey v. Smith, 71 F. App’x 916 (3d Cir. 2003); see also

Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (“[I]t is well established that ‘ignorance

of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing.’”

(citations omitted)).

Recently, the Supreme Court considered what renders administrative remedies

unavailable to an inmate such that a failure to exhaust may be excused. See Ross v. Blake, 136

S. Ct. 1850 (2016). The Court noted, “three kinds of circumstances in which an administrative

remedy, although officially on the books, is not capable of use to obtain relief.” See Ross, 136

S. Ct. at 1859. First, an administrative procedure is not available “when (despite what

regulations or guidance materials may promise) it operates as a simple dead end—with

officers unable or consistently unwilling to provide any relief to aggrieved inmates.” See Ross,

136 S. Ct. at 1859. Second, a procedure is not available when it is “so opaque that it becomes,

practically speaking, incapable of use.” See Ross, 136 S. Ct. at 1859. Finally, a procedure is

unavailable when “prison administrators thwart inmates from taking advantage of a grievance

process through machination, misinterpretation, or intimidation.” See Ross, 136 S. Ct. at 1860.

However, “once the defendant has established that the inmate failed to resort to

administrative remedies, the onus falls on the inmate to show that such remedies were

unavailable to him.” See Rinaldi v. United States, 904 F.3d 257, 268 (3d Cir. 2018). The Third

Circuit recently established that:

to defeat a failure-to-exhaust defense based on a misrepresentation by prison

staff, an inmate must show (1) that the misrepresentation is one which a

reasonable inmate would be entitled to rely on and sufficiently misleading to

interfere with a reasonable inmate's use of the grievance process, and (2) that

the inmate was actually misled by the misrepresentation.

See Hardy v. Shaikh, 959 F.3d 578, 588 (3d Cir. 2020).

In this case, Defendants assert:

the BOP’s computerized records of [Lopez]’s administrative remedy

submissions reveal that while he filed previous administrative remedies

concerning disciplinary appeals and a request for a transcript, he never

submitted a single administrative remedy concerning his alleged improper

transfer to USP Lewisburg or the alleged unlawful conditions of confinement

he claims he is enduring at that institution. Therefore, because [Lopez] made

no effort to satisfy the PLRA, this Court should enter judgment in favor of the

Bivens defendants and deny him the opportunity to correct the deficiencies of

his Amended Complaint because he did not attempt to exhaust administrative

remedies before he filed his complaint.

(Doc. 18, at 10-11).

In support of their assertion, Defendants have provided a declaration from Jennifer Knepper,

an attorney advisor at USP Lewisburg. (Doc. 17-1, at 3-4). She avers that Lopez has filed

three administrative remedies, which concern two disciplinary appeals and one wherein he

requests transcripts. (Doc. 17-1, ¶ 5). Knepper avers that Lopez has not filed any

administrative remedies concerning the allegations in his complaint. (Doc. 17-1, ¶ 5). Lopez’s

Administrative Remedy Generalized Retrieval also indicates he has never filed any remedies

concerning the allegations set forth in the instant case. (Doc. 17-1, at 9-10).

Lopez has not responded to Defendants’ motion. Nothing in the record before the

Court suggests that Lopez ever submitted an administrative remedy regarding his

confinement in the SHU or transfer to USP Lewisburg. Lopez, therefore, has not refuted the

defense that he failed to properly exhaust his Bivens claims prior to filing suit in this Court.

Based on Defendants’ statements of material facts and the evidentiary materials and the lack

of opposing evidentiary materials, the Court concludes that there are no triable issues of

material fact regarding the issue of exhaustion of administrative remedies and that Defendants

are entitled to judgment as a matter of law.

Accordingly, because the PLRA requires full and proper exhaustion prior to the

initiation of Lopez’s Bivens claims in federal court, and this Court cannot excuse compliance

with those requirements, Defendants’ motion will be granted on the basis that Lopez failed

to properly exhaust his administrative remedies with respect to his Bivens claims.

C. FTCA CLAIMS

Defendants assert that they are entitled to summary judgment on Lopez’s FTCA

claims because he has not submitted an administrative tort claim to the BOP during his

incarceration. (Doc. 18, at 12). The FTCA “provides a mechanism for bringing a state law

tort action against the federal government in federal court,” and the “extent of the United

States’ liability under the FTCA is generally determined by reference to state law.” See In re

Orthopedic Bone Screw Prod. Liab. Litig., 264 F.3d 344, 362 (3d Cir. 2001) (quoting Molzof v.

United States, 502 U.S. 301, 305 (1992)).

As a sovereign, the United States is immune from suit unless it consents to be sued.

United States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting United States v. Sherwood, 312 U.S.

584, 586 (1941)). Its consent to be sued must be “unequivocally expressed,” and the terms of

such consent define the court's subject matter jurisdiction. Sherwood, 312 U.S. at 586.

(quotations omitted). The FTCA operates as a limited waiver of the United States’ sovereign

immunity. White–Squire v. U.S. Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010) (citing Roma v.

United States, 344 F.3d 352, 362 (3d Cir.2003)). Under the FTCA, the United States is liable

“in the same manner and to the same extent as a private individual under like circumstances.”

28 U.S.C. § 2674. An incarcerated FTCA plaintiff may sue only the United States, may seek

only monetary damages, and may not recover for mental or emotional damages in the absence

of physical injury. See 28 U.S.C. § 1346(b)(1)-(2); CNA v. United States, 535 F.3d 132, 138 n.2

(3d Cir. 2008).

A plaintiff suing under the FTCA must present the offending agency with notice of the

claim, including a “sum certain” demand for monetary damages. See White–Squire, 592 F.3d

at 457. “Because the requirements of presentation and a demand for a sum certain are among

the terms defining the United States[’] consent to be sued, they are jurisdictional.” White–

Squire, 592 F.3d at 457 (citing Sherwood, 312 U.S. at 586; Bialowas v. United States, 443 F.2d

1047, 1049 (3d Cir.1971) (noting that the requirement to present a claim to the agency “is

jurisdictional and cannot be waived”) (citation omitted)). “In other words, if a plaintiff has

not complied with the FTCA's pleading requirements, a district court has no subject matter

jurisdiction over the claim.” Palmer v. United States, No. 21-11721, 2022 WL 310208, at *4

(D.N.J. Feb. 1, 2022) (internal quotation marks omitted). “[W]e should not take it upon

ourselves to extend the waiver beyond that which Congress intended.” United States v. Kubrick,

444 U.S. 111, 117-18 (1979).3

As an initial matter, Lopez appears to assert his FTCA claims against the BOP,

National Gang Unit Agency, and S.I.S., rather than the United States. (Doc. 12, ¶¶ 4-6).

Lopez cannot, however, maintain a claim against Defendants, as the United States is the only

proper defendant for an FTCA claim. See, e.g., CNA, 535 F.3d at 138 n.2. (“The Government

is the only proper defendant in a case brought under the FTCA.”); see also 28 U.S.C. §

1346(b)(1)–(2). Accordingly, the Court will dismiss Lopez’s FTCA claims against Defendants

for lack of jurisdiction.

3 The claim must be presented to the appropriate agency within two years after it

accrues. 28 U.S.C. § 2401(b); see also Kubrick, 444 U.S. at 117–18, 100 S.Ct. 352 (noting that

the two-year statute of limitations “is a condition of th[e] waiver” of “sovereign immunity”).

Next, even if this Court were to substitute the United States as the proper party, the

Court would nevertheless dismiss these claims for lack of jurisdiction, as Lopez failed to

exhaust his administrative remedies.4 The amended complaint fails to make any reference to

a notice of tort claim, a demand for a sum certain, or that Lopez has otherwise exhausted his

FTCA claim. Moreover, according to Defendants, the BOP’s computerized records reveal

that Lopez has not submitted an administrative tort claim to the agency during his

incarceration. (Doc. 17-1, ¶ 6).

Accordingly, because Lopez’s FTCA claims fail to sue the proper party and because

even if the Court substitutes the United States as the proper party, Lopez failed to exhaust his

administrative remedies prior to initiating suit, the Court will grant Defendants’ motion and

dismiss the FTCA claims for lack of subject matter jurisdiction. See Lampon-Paz v. Dep't of

Just., No. 16-9071, 2019 WL 2098831, at *6 (D.N.J. May 14, 2019), aff'd, 793 F. App'x 137

(3d Cir. 2019).

IV. CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss and/or for summary

judgment is GRANTED. (Doc. 16).

An appropriate Order follows.

Dated: June 8, 2023 s/ Karoline Mehalchick

KAROLINE MEHALCHICK

Chief United States Magistrate Judge

4 Although the amended complaint names the United States in its caption, it does not

appear to name the United States as a defendant in the body of the amended complaint with

respect to Lopez’s FTCA claims. (Doc. 12, ¶¶ 4–6).