BERRY v. FITZGERALD

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

______________________________

:

LARRY LAVONNE BERRY, :

:

Plaintiff, : Civ. No. 17-4904 (NLH) (AMD)

:

v. : OPINION

:

:

FBOP OFFICER :

STEPHEN FITZGERALD, et al., :

:

Defendants. :

:

______________________________:

APPEARANCES:

Jeffrey P. Resnick, Esq.

Sherman, Silverstein, Kohl, Rose & Podolsky, PA

East Gate Corporate Center

308 Harper Drive

Suite 200

Moorestown, NJ 08057

Attorneys for Plaintiff

Philip R. Sellinger, United States Attorney

Kristin Lynn Vassallo, Assistant United States Attorney

Office of the United States Attorney

District of New Jersey

970 Broad Street

Newark, NJ 07102

Attorneys for Defendants

HILLMAN, District Judge

Plaintiff Larry Lavonne Berry is proceeding on an amended

complaint against Defendants Stephen Fitzgerald and Robert

Wright, pursuant to Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971), alleging they sexually

assaulted him during his incarceration in FCI Fort Dix, New

Jersey. Amended Complaint (“Am. Compl.”) ECF No. 43. The

amended complaint also alleges negligence, assault and battery,

and intentional infliction of emotional distress claims against

the United States under the Federal Tort Claims Act (“FTCA”), 28

U.S.C. § 2671 et seq. Id. Defendants now move for summary

judgment. ECF No. 75. Plaintiff opposes the motion. ECF No.

77.

For the reasons herein, the Court will grant the motion and

enter judgment in Defendants’ favor.

I. BACKGROUND

Plaintiff arrived at FCI Fort Dix on August 19, 2014, and

remained in custody there until he was transferred to FCI

Fairton on March 1, 2016. Plaintiff’s Response to Defendants’

Statement of Material Facts (“PRSOF”), ECF No. 78 ¶ 1. On or

about September 2, 2014, Plaintiff submitted a BP-8 informal

resolution form regarding an encounter with Defendant Wright:

Officer Wright verbally/sexually harassed me in the

Laundry area by requesting that I drop my pants and show

him how tight my underwear are on my ass before issuing

larger underwear. However this is unprofessional and

[inappropriate].

Upon coming to FCI Fort Dix, I . . . was sexually

harassed by Officer Wright in the Laundry on 8-20-14. I

was issued (4) uniforms (4) underwear (4) Tee Shirt (4)

socks. The uniforms and underwear were [too] tight.

Officer Wright told me to come back on 8-26-14, which I

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did. Upon entering the Laundry, Officer Wright had

pulled my Laundry card. Officer Wright told me it was

not my day. I informed the Officer that he told me to

come back. I requested for a change of underwear and

uniforms to be changed a size bigger. The Officer stated

you people. Then with no warning told me to pull down

my pants and turn around, so that he can see my rear

end, to determine if my underwear were in fact tight and

sticking in my rear end. This is very concerning and

needs to be addressed.

This kind of behavior is unprofessional and very

inappropriate. This is what I told the Officer. Officer

Wright, stated that I can go tell the Warden and or the

A/W they are my people, and to make sure I tell them

what I said. Which was that the officer is being

unprofessional, and not to engage in sexual Language

with me, or acts. Officer Wright yelled at me telling

me to leave the Laundry, also stating that he isn’t the

one and he knows where I sleep. I contacted the proper

authorit[ies] and Family concerning this matter. This

is a no win situation that I’m in. I’ve been sexually

abused as a child, and I fear for my [safety]. Please

transfer me because I don’t need this Office planting

any thing on me or in my property. This will not be

tolerated, “Sexual harassment” from staff or inmate.

ECF No. 75-5 at 36-40. On September 4, 2014, Plaintiff asked to

withdraw the BP-8:

I was in the Lt. Office, app 1:45 discussing the BP:8,

that was file[d] on 9-2-14. I explained to the Lt.,

that I feel as if the Officer in question is of no threat

to myself, Larry L. Berry 70372-056, and I am requesting

to drop the BP-8 that I wrote concerning the matter.

Id. at 35. Lieutenant John Miosi later sent an email stating:

“All inmate Barry wanted was institutional clothing that fit

him. Inmate Barry wrote a request while in the Office to drop

the BP-8. See attached. Inmate Barry will be escorted to

Laundry Friday to pick up institutional clothing. Any further

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questions, feel free to contact this Lieutenant.” Id. at 34.

Plaintiff disputes that this withdrawal was voluntary. PRSOF ¶

5.

Plaintiff alleges that “[f]rom August 21, 2014 through

about May 2015, defendant Wright assaulted plaintiff on numerous

occasions while he was under the custodial, supervisory and

disciplinary authority of the FBOP.” Am. Compl. ¶ 12.

“Defendant Wright inappropriately intimidated, coerced,

victimized and assaulted plaintiff by forcing plaintiff to have

sexual relations with him.” Id. “During this time, defendant

Wright verbally demanded sexual favors and harassed plaintiff.”

Id. ¶ 13.

Plaintiff further alleges that “[f]rom approximately June

2015 through January 2016, defendant Fitzgerald assaulted

plaintiff on numerous occasions while he was under the

custodial, supervisory and disciplinary authority of the FBOP.”

Id. ¶ 14. “Defendant Fitzgerald inappropriately intimidated,

coerced, victimized and assaulted plaintiff by forcing plaintiff

to have sex with him.” Id. “Defendant Fitzgerald would call

plaintiff to appear at the school building in 5842 on Sundays

when the building was closed and, during this time, defendant

Fitzgerald verbally demanded sexual favors and harassed

plaintiff.” Id. ¶ 15. “Plaintiff did not consent to the sexual

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acts and assaults by defendants Wright and Fitzgerald.” Id. ¶

17.

“At all times, plaintiff feared retaliation and further

abuse if he resisted or reported defendants Wright and

Fitzgerald.” Id. ¶ 16. Plaintiff states that whenever he tried

to stop Defendant Fitzgerald, he “was written upon on false

charges by or at the direction of defendant Fitzgerald.” Id. ¶

18. “Plaintiff informed several people about some or all of

these events including case manager Wright (who plaintiff did

not realize was defendant Wright’s sister), the head

psychologist and his case manager, Olsen, but nothing changed.”

Id. ¶ 19. Plaintiff alleges that he was threatened and coerced

from filing internal charges against Defendants Wright and

Fitzgerald. Id. ¶ 21.

On February 2, 2016, Plaintiff sent an email to the

Department of Justice’s Office of the Inspector General:

on 1/12/2016 I larry lavonne berry, was sexually

assuated by officer S. FITZGERALD in unit 5811 on the

west compound. this was the resust of filing a sexual

abuse charg on a OOFICE WRIGHT, that work the laundry.

sense I file the sexual abuse charges. i’ve been a targe

for staff here at fort dix.. maenly OFFICE WRIGHTS

sister CASE MANAGER WRIGHT In bldg 5811 .. I informed

me case manager of this abuse to no avail this

harrassment continued .. before my encounter with office

s. fitzgerald he approached me stating that I wrote a

sexual abuse charge on one of his co-workers. which i

did. then fitzgerald started searching me every chance

he got. to the point. i was showering this officer

came into the shower area and just stood there stairing

at me. once i can out of the shower fitzgerald searched

5

me. minutes later he can into my room saying nothing.

than left shortly returning, stateing shack down

search.. officer fitzgerald let four withe man just

walk out the room. stopping me pat fricking! me twice

then useing the ward. my belt buckle beepin i removed

the belt there was no beeping .. than the officer took

his gloves off. and stuck his hands into my back pockets

palms touching my butt, tham stuck his hand into my front

pockets. by this time i became fereful. once i was

free to go i walked off fast them ran to the stairs ..

bottom line i received three shots 115 198 199 307. i

beat all excecp the 307 .. im now In the S-H-U. with

loss commissary. I didnt take any urin samply. however

i just got a stot for a dirty urin .. this is a ploy to

send me back to a higher classifacation institution, i

dont get high off of anything. never have never will.

my kiddey are shot.

ECF No. 77-7 at 2 (reproduced as filed). Plaintiff requested an

institutional transfer and was transferred to FCI Fairton on or

about March 1, 2016. Am. Compl. ¶ 11.

Plaintiffs filed his original complaint on July 5, 2017.

ECF No. 1. Defendants answered the Complaint, ECF No. 16, and

then moved for summary judgment before discovery on the grounds

that Plaintiff failed to exhaust his administrative remedies,

ECF No. 17. Plaintiff did not file a formal opposition brief to

the motion, but he did file a letter to the Court explaining

that he started the administrative remedy process as to the

sexual assault claims, but was forced to stop. ECF No. 22. He

also filed a motion for the appointment of pro bono counsel.

ECF No. 30.

Relying on Federal Rule of Civil Procedure 56(d), the Court

denied the motion for summary judgment without prejudice on June

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28, 2019. ECF No. 32. The Court further granted Plaintiff’s

motion for the appointment of counsel. ECF No. 33. Plaintiff

filed an amended complaint with leave of court after the

appointment of pro bono counsel.1 ECF No. 43.

Defendants now move for summary judgment on the amended

complaint. ECF No. 75. Plaintiff opposes the motion. ECF No.

77. At the Court’s request, the parties submitted supplemental

briefing on the Supreme Court’s decision in Egbert v. Boule, 142

S. Ct. 1793 (2022) which was handed down after briefing closed.

ECF Nos. 84 & 85. The Court also permitted, but did not

require, the parties to submit any other evidence, such as

affidavits or declarations, that they wished the Court to

consider on Plaintiff’s exhaustion of administrative remedies.

ECF No. 83 (citing Fed. R. Civ. P. 56(e)(1); Paladino v.

Newsome, 885 F.3d 203 (3d Cir. 2018)).

II. STANDARD OF REVIEW

Summary judgment should be granted when the pleadings,

depositions, answers to interrogatories, admissions on file, and

affidavits show that there is no genuine dispute as to any

material fact and that the moving party is entitled to a

1 The Court acknowledges and appreciates the advocacy of Jeffrey

P. Resnick, Esq. of Sherman, Silverstein, Kohl, Rose & Podolsky,

PA, who accepted appointment as pro bono counsel pursuant to 28

U.S.C. § 1915(e)(1) and this Court’s Plan for Appointment of

Attorneys in Pro Se Civil Actions, see App. H of the Local Civil

Rules of the District of New Jersey.

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judgment as a matter of law. Fed. R. Civ. P. 56(c). A disputed

fact is material when it could affect the outcome of the suit

under the governing substantive law. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if the

evidence is such that a reasonable jury could return a verdict

for the non-moving party. Id. at 250. The Court should view

the facts in the light most favorable to the non-moving party

and make all reasonable inferences in that party’s favor. Hugh

v. Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).

Initially, the moving party must show the absence of a

genuine issue concerning any material fact. See Celotex Corp.

v. Carrett, 477 U.S. 317, 323 (1986). Once the moving party has

satisfied its burden, the non-moving party, “must present

affirmative evidence in order to defeat a properly supported

motion for summary judgment.” Anderson, 477 U.S. at 257.

“While the evidence that the non-moving party presents may be

either direct or circumstantial, and need not be as great as a

preponderance, the evidence must be more than a scintilla.”

Hugh, 418 F.3d at 267 (citing Anderson, 477 U.S. at 251).

III. DISCUSSION

A. Constitutional Claims

Plaintiff alleges Defendants Wright and Fitzgerald violated

the Eighth Amendment’s prohibition on cruel and unusual

punishment when they sexually assaulted him at FCI Fort Dix.

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Before the Court can address whether Plaintiff exhausted his

administrative remedies for these claims, it must first

determine whether he has a cause of action at all.

“In Bivens, the Court held that it had authority to create

‘a cause of action under the Fourth Amendment’ against federal

agents who allegedly manacled the plaintiff and threatened his

family while arresting him for narcotics violations.” Egbert v.

Boule, 142 S. Ct. 1793, 1802 (2022) (quoting Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388,

397 (1971)). “Over the following decade, the Court twice again

fashioned new causes of action under the Constitution — first,

for a former congressional staffer’s Fifth Amendment sex-

discrimination claim; and second, for a federal prisoner’s

inadequate-care claim under the Eighth Amendment.” Id. (citing

Davis v. Passman, 442 U.S. 228 (1979); Carlson v. Green, 446

U.S. 14 (1980)). “Since these cases, the Court has not implied

additional causes of action under the Constitution.” Id.

In 2017, the Supreme Court concluded “that expanding the

Bivens remedy is now a ‘disfavored’ judicial activity.” Ziglar

v. Abbasi, 582 U.S. 120, 135 (2017). See also Hernández v.

Mesa, 140 S. Ct. 735, 742 (2020) (“In both statutory and

constitutional cases, our watchword is caution.”). “These three

cases — Bivens, Davis, and Carlson — represent the only

instances in which the Court has approved of an implied damages

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remedy under the Constitution itself.” Abbasi, 582 U.S. at 131.

“Indeed, in light of the changes to the Court’s general approach

to recognizing implied damages remedies, it is possible that the

analysis in the Court’s three Bivens cases might have been

different if they were decided today.” Id. at 134.

Abbasi “created a funnel through which plaintiffs alleging

constitutional violations by federal officials must pass.”

Alexander v. Ortiz, No. 15-6981, 2018 WL 1399302, at *4 (D.N.J.

Mar. 20, 2018). “First, we ask whether the case presents ‘a new

Bivens context’ — i.e., is it ‘meaningful[ly]’ different from

the three cases in which the Court has implied a damages

action.” Egbert, 142 S. Ct. at 1803 (quoting Abbasi, 582 U.S.

at 139-40). “If a case does not present a new Bivens context,

the inquiry ends there, and a Bivens remedy is available.”

Shorter v. United States, 12 F.4th 366, 372 (3d Cir. 2021).

The Supreme Court’s “understanding of a ‘new context’ is

broad.” Hernández, 140 S. Ct. at 743. “[A] new context arises

when there are ‘potential special factors that previous Bivens

cases did not consider.’” Egbert, 142 S. Ct. at 1803 (quoting

Abbasi, 582 U.S. at 140). Plaintiff argues his claims do not

present a new context under Bivens because “[t]he Third Circuit

has recognized that [Farmer v. Brennan, 511 U.S. 825 (1994)]

extends to encompass plaintiff’s Eighth Amendment Claim.” ECF

No. 84 at 7 (citing Shorter). “Defendants attempt to

10

distinguish this matter from Farmer and Shorter, as those cases

involved a sexual assault by a fellow inmate. However, this

difference is immaterial, rather, the conduct of the offending

officers is key.” Id.

In Shorter, the Third Circuit held that a transgender

female inmate’s claim that prison officials failed to protect

her from being sexually assaulted by other inmates did not

present a new Bivens context. “Farmer made clear, in

circumstances virtually indistinguishable from our case, that an

Eighth Amendment Bivens remedy is available to a transgender

prisoner who has been assaulted by a fellow inmate.” 12 F. 4th

at 373. The Supreme Court has never included Farmer in its list

of prior acceptable Bivens actions,2 and the Third Circuit

decided Shorter before the Supreme Court issued Egbert.

However, Plaintiff’s case is distinguishable from Farmer even if

the Court may rely on it after Abbasi, Hernández, and Egbert.

Unlike the plaintiffs in Farmer and Shorter, Plaintiff is

not alleging that prison officials failed to protect him from

other inmates. This difference is not immaterial. “A claim may

arise in a new context even if it is based on the same

constitutional provision as a claim in a case in which a damages

2 The Third Circuit concluded “the Supreme Court in Abbasi

neglected to name Farmer because it saw that case as falling

under the umbrella of Carlson . . . .” Shorter, 12 F.4th at 373

n.5 (citing Bistrian v. Levi, 912 F.3d 79, 91 (3d Cir. 2018)).

11

remedy was previously recognized.” Hernández, 140 S. Ct. at

743. Shorter relied on Farmer’s holding that “a federal

prisoner ha[s] a clearly established constitutional right to

have prison officials protect him from inmate violence and has a

damages remedy when officials violate that right.” Shorter, 12

F. 4th at 373 (internal quotation marks omitted) (alteration in

original) (emphasis added). See also Bistrian v. Levi, 912 F.3d

79, 94 (3d Cir. 2018) (“Abbasi changed the framework of analysis

for Bivens claims generally, but not the existence of the

particular right to Bivens relief for prisoner-on-prisoner

violence.”). Despite both claims being premised on the Eighth

Amendment, the fact that Plaintiff is not alleging Defendants

failed to protect him from inmate violence makes his case

“meaningfully different” than Farmer. See also Abbasi, 582 U.S.

at 139-40 (“A case might differ in a meaningful way because of

the rank of the officers involved” or “the constitutional right

at issue”).

Plaintiff’s allegations of sexual assault by BOP

corrections officers were not contemplated by the Supreme

Court’s decisions in Bivens, Davis, or Carlson, and the facts of

his case are distinguishable from Farmer. Accordingly, the

Court concludes that Plaintiff’s claim presents a “new context.”

See also Greene v. United States, No. 21-5398, 2022 WL 13638916,

at *4 (6th Cir. Sept. 13, 2022) (unreported) (holding

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plaintiff’s “Eighth Amendment claims against federal corrections

officers and officials for conspiracy, excessive force, sexual

harassment, sexual assault, and failure to protect arise in ‘a

new context’ and involve a ‘new category of defendants’”); Ball

v. Streeval, No. 7:20-CV-00558, 2023 WL 1930003, at *4 (W.D. Va.

Feb. 9, 2023) (holding plaintiff’s allegations that “various

defendants subjected him to cruel and unusual punishment in the

form of beatings, threats, sexual assault, and painful

restraints” were “sufficiently different to constitute a new

Bivens context”); Carthen v. Scott, No. 119CV00227ADAEPGPC, 2023

WL 346675, at *6 (E.D. Cal. Jan. 20, 2023) (“As Plaintiff’s

Eighth Amendment sexual harassment/sexual assault claims involve

entirely different conduct than the conduct in Carlson,

Plaintiff’s Eighth Amendment claims also arise in a new

context.”). The Court must now proceed to the second stage of

the Abbasi analysis.

“[I]f a claim arises in a new context, a Bivens remedy is

unavailable if there are ‘special factors’ indicating that the

Judiciary is at least arguably less equipped than Congress to

‘weigh the costs and benefits of allowing a damages action to

proceed.’” Egbert, 142 S. Ct. at 1803 (quoting Abbasi, 582 U.S.

at 136). “If there is even a single ‘reason to pause before

applying Bivens in a new context,’ a court may not recognize a

Bivens remedy.” Id. (quoting Hernández, 140 S. Ct. at 743).

13

See also Graber v. Doe II, 59 F.4th 603, 609 (3d Cir. 2023)

(“Bivens actions are very limited, and new ones cannot be

created where ‘there is any rational reason (even one) to think

that Congress is better suited to “weigh the costs and benefits

of allowing a damages action to proceed.”’” (quoting Egbert, 142

S. Ct. at 1805)).

Plaintiff concedes in his supplemental briefing that

Egbert’s “standard is extraordinarily restrictive as it bars

extension of a new Bivens context so long as the potential for

such ‘harmful or inappropriate’ judicial intrusion to exist is

an extraordinarily high bar. Plaintiff would be unable to meet

the restrictive standard announced in Egbert as the potential

for such consequences exist.” ECF No. 84 at 8. The Court is

constrained to agree.

The Court does not reach this decision lightly. Plaintiff

has made, and testified to under oath, serious allegations of

sexual assault at the hands of federal corrections officers.

“Our society requires prisoners to give up their liberty, but

that surrender does not encompass the basic right to be free

from severe unwanted sexual contact.” Ricks v. Shover, 891 F.3d

468, 471 (3d Cir. 2018). Staff sexual abuse of prisoners is

“objectively, sufficiently serious to constitute an Eighth

Amendment violation.” White v. Ottinger, 442 F. Supp. 2d 236,

248 (E.D. Pa. 2006). “[S]exual abuse ‘tend[s] rather to cause

14

significant distress and often lasting psychological harm.’”

Ricks, 891 F.3d at 477 (quoting Washington v. Hively, 695 F.3d

641, 643 (7th Cir. 2012)) (second alteration in original).

However, “this court is obligated to faithfully apply

binding precedent, such as Egbert, in the cases before it, no

matter how egregious the allegations of abuse are.” Jean v.

Smallwood, No. 7:20-CV-00415, 2022 WL 17969091, at *7 (W.D. Va.

Dec. 27, 2022). The Supreme Court has held that “a court may

not fashion a Bivens remedy if Congress already has provided, or

has authorized the Executive to provide, ‘an alternative

remedial structure.’” Egbert, 142 S. Ct. at 1804 (quoting

Abbasi, 582 U.S. at 137). The Supreme Court has held that the

BOP’s Administrative Remedy program satisfies this requirement.

Id. at 1806 (citing Corr. Servs. Corp. v. Malesko, 534 U.S. 61,

74 (2001)). Accordingly, the Court must dismiss Plaintiff’s

constitutional claims against Defendants Wright and Fitzgerald

as Bivens does not afford him a remedy absent Congressional

action.

B. Federal Tort Claims Act

Defendant United States argues Plaintiff’s FTCA claims must

be dismissed as Plaintiff did not exhaust his administrative

remedies before filing suit. Plaintiff responds that “[w]hile

plaintiff agrees that a formal Notice of Intent to Sue was not

filed with the Bureau of Prisons, the February 2, 2016 email

15

complaint he filed with the Office of the Inspector General

satisfies the prerequisite of the FTCA.” ECF No. 77 at 15. See

also ECF No. 77-7 at 2.

“The FTCA waives sovereign immunity and grants district

courts jurisdiction over tort claims against the United States

‘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.’” Gould

Elecs. Inc. v. United States, 220 F.3d 169, 179 (3d Cir. 2000)

(quoting 28 U.S.C. § 1346(b)(1)) (emphasis omitted), modified on

other grounds by Simon v. United States, 341 F.3d 193 (3d Cir.

2003). This waiver of sovereign immunity is limited, however.

“Because the Federal Tort Claims Act constitutes a waiver of

sovereign immunity, the Act’s established procedures have been

strictly construed.” Livera v. First Nat’l State Bank of N.J.,

879 F.2d 1186, 1194 (3d Cir. 1989).

“[A]n FTCA action ‘shall not be instituted upon a claim

against the United States for money damages ... unless the

claimant shall have first presented the claim to the appropriate

Federal agency . . . .’” White-Squire v. U.S. Postal Serv., 592

F.3d 453, 457 (3d Cir. 2010) (quoting 28 U.S.C. § 2675(a))

(omissions in original). The statute “further specifies that an

FTCA action ‘shall not be instituted for any sum in excess of

the amount of the claim presented to the federal agency . . .

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.’” Id. (omission in original) (emphasis omitted). “Because

the requirements of presentation and a demand for a sum certain

are among the terms defining the United States’s consent to be

sued, they are jurisdictional.” Id. (citing United States v.

Sherwood, 312 U.S. 584, 586 (1941); Bialowas v. United States,

443 F.2d 1047, 1049 (3d Cir. 1971)).

“[N]otice in the form of an administrative claim ‘satisfies

section 2675’s requirement ... if the claimant (1) gives the

agency written notice of his or her claim sufficient to enable

the agency to investigate and (2) places a value on his or her

claim.’” Roma v. United States, 344 F.3d 352, 362–63 (3d Cir.

2003) (quoting Tucker v. United States Postal Serv., 676 F.2d

954, 959 (3d Cir. 1982)) (omission in original). Plaintiff

relies on his February 2, 2016 email to the Office of the

Inspector General for the presentation of his claim. Even if

the Court presumes that the email satisfactorily presents the

factual basis of Plaintiff’s claim, the email is insufficient

under the FTCA because it was not submitted to the Bureau of

Prisons3 and does not contain a sum-certain demand as is required

3 The Office of the Inspector General is an independent unit

within the Department of Justice that conducts and supervises

audits, “provide[s] leadership and coordination and recommend

policies for activities designed (A) to promote economy,

efficiency, and effectiveness in the administration of, and (B)

to prevent and detect fraud and abuse in, such programs and

operations” and “provide[s] a means for keeping the head of the

17

by the statute. ECF No. 77-7 at 2. “[T]he sum certain

requirement is . . . tethered to the grant of jurisdiction . . .

.” White-Squire, 592 F.3d at 457. “Thus, a claimant’s failure

to present [his] FTCA claim to the appropriate agency with a sum

certain, as required by § 2675(b), compels the conclusion that a

district court lacks subject matter jurisdiction over the

claim.” Id. at 458. See also Livera v. First Nat. State Bank

of New Jersey, 879 F.2d 1186, 1195 (3d Cir. 1989) (“[W]e are

compelled to find the complaint inadequate for administrative

purposes under the Tort Claims Act since the complaint failed to

state damages in a sum certain as mandated by 28 C.F.R. §

14.2(b)(1), which sets forth the content standards required for

tort claims against the United States.”). The Court must

dismiss Plaintiff’s FTCA claims for lack of jurisdiction.

Plaintiff’s argument that the Court should equitably toll

the time for filing FTCA remedies because he was coerced into

withdrawing his BP-8 does not save his claims. See ECF No. 77

at 14-15. “The BOP’s Administrative Remedy Program is separate

and distinct from the statutory administrative procedures under

the FTCA. Each procedure has separate forms and filing

deadlines.” Gillie v. Esposito, No. 14-3704, 2018 WL 6499864,

establishment and the Congress fully and currently informed

about problems and deficiencies relating to the administration

of such programs and operations and the necessity for and

progress of corrective action.” 5 U.S.C. § App. 3 § 2 (1)-(3).

18

at *4 (D.N.J. Dec. 11, 2018) (citing 28 C.F.R. § 542.10(c)).

Plaintiff’s claim that BOP officials coerced him into

withdrawing his BOP administrative claim does not suggest that

BOP officials prevented him from filing a claim under the FTCA.

IV. CONCLUSION

For the reasons set forth above, the Court will grant

Defendants’ motion for summary judgment. Judgment will be

entered in Defendants’ favor.

An appropriate Order follows.

Dated: March 9, 2023 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

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