MEMORANDUM
MALACHY E. MANNION, District Judge.
I. Background
Michael Brodie, an inmate presently confined in the Fayette State Correctional Institution, La Belle, Pennsylvania, filed this pro se civil rights action pursuant to 42 U.S.C. §1983. The named Defendants are the Pennsylvania Department of Corrections and thirteen (13) employees at SCI-Smithfield, Plaintiff's former place of confinement. Presently before the Court is Defendants' motion to dismiss the Plaintiff's complaint for, inter alia, Plaintiff's failure to exhaust available administrative remedies. (Doc. 16). The motion has been fully briefed, and is ripe for disposition. For the reasons set forth below, the Court will grant Defendants' motion to dismiss.
II. Motion to Dismiss
Fed.R.Civ.P. 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." Under Rule 12(b)(6), we must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). While a complaint need only contain "a short and plain statement of the claim," Fed.R.Civ.P. 8(a)(2), and detailed factual allegations are not required, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570. "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting Twombly, 550 U.S. at 556). "[L]abels and conclusions" are not enough, Twombly, 550 U.S. at 555, and a court "is not bound to accept as true a legal conclusion couched as a factual allegation." Id. (quoted case omitted). Thus, "a judicial conspiracy claim must include at least a discernible factual basis to survive a Rule 12(b)(6) dismissal." Capogrosso v. The Supreme Court of New Jersey, 588 F.3d 180, 184 (3d Cir. 2009) (per curiam).
In resolving the motion to dismiss, we thus "conduct a two-part analysis." Fowler, supra, 578 F.3d at 210. First, we separate the factual elements from the legal elements and disregard the legal conclusions. Id. at 210-11. Second, we "determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief". Id. at 211 (quoted case omitted).
III. Facts alleged in Complaint
Plaintiff's allegations of fact are taken from Plaintiff's complaint and Plaintiff's attached exhibits. (See Doc. 1 at 3-29).
Plaintiff alleges that Defendants "willfully and knowingly used and/or misused the power of their offices to retaliate against Plaintiff for exercising his right to file informal and formal grievance complaints against them/defendants for refused or failure to compile (sic) with administrative policy to process Plaintiff for incentive based transfer to his home region, as well as violating his 5th, 14th, 1st and 8th amendments, along with DC-ADM 802." Id.
Additionally, Plaintiff claims that Defendants "used and misused administrative custody procedure and placement as a means of punishment and falsely fabricated reasons, then transferring him away from his region." Id. Specifically, Plaintiff claims that "after qualifying for an incentive based transfer, by complying with all DOC's prescriptive programs, including him maintaining positive behavior, staying misconduct free and keeping a positive work report, Plaintiff applied for his unit team, Defendants Steven Moist and Jerry Everhart for processing his transfer papers for his home region." Id.
On December 18, 2013, Plaintiff submitted an Inmate's Request to Staff Member with Defendant Biser, asking for assistance with processing his paper work for a transfer". Id. Defendant Biser forwarded Plaintiff's request to Unit Manager Everhart who responded, on January 6, 2014, with the following:
You were reviewed previously for IBT and denied due to conduct issues. Mr. Moist has tried to speak with you but the last time you got up and left his office. This is not what we are looking for when it comes to IBT. Work with Mr. Moist and be cooperative.
Id. On January 14, 2014, Plaintiff submitted another Inmate's Request to Staff Member to Mr. Everhart, inquiring as to an incentive based transfer, and explaining that the reason he walked out of Mr. Moist's office was because he had just told Plaintiff that his father died and "it had nothing to do with a IBT, so therefore he lied to you as well." Id.
On January 17, 2014, Mr. Everhart responded that "the bottom line is that no inmate has the right to incentive based transfer" and that "these are processed and approved at the discretion of staff"; although Plaintiff "can request consideration, but there is no requirement to proceed, you need to work with staff to determine if something like this would be possible." Id. Defendant Everhart suggested that Plaintiff "start by cooperating with [his] counselor." Id.
Also, on January 17, 2014, Plaintiff's Grievance No. 492487-14, filed on January 2, 2014, was denied as follows:
Mr. Brodie, I have received, read and investigated your grievance concerning your father and what you believe your Unit Team did not handle. You state that you are being discriminated against because you are eligible for an Incentive Based Transfer and your Unit Team will not do the paperwork. You also state that you have asked Mr. Moist, your counselor, to look into your correspondence with your father that was housed at SCI-Laurel Highlands.
Your Incentive Based Transfer vote sheet was routed and denied in December 2012. You are more than welcome to get with your Unit Team on initiating another vote sheet on an Incentive Based Transfer, please keeping in mind that there are [no] guarantees of a positive decision. As for your correspondence privileges with your father, you were approved in 2009 and from what I can tell were never revoked. So this is a non-issue.
Although I am sorry to hear about the loss of your father, I am certain that SCI-Laurel Highlands did not take into consideration your housing status. From my experience with inmate deaths with in a facility, we are required to notify the next of kin. The notifications that are made after that would fall into the hands of the person named as the next of kin. I would hope that you have contacted someone in the Chaplaincy department or Psychology department if you are having difficulty dealing with your father's death.
I find no policy and or procedure violations of your grievance, therefore it is denied.
Id. Plaintiff filed an appeal of the Grievance No. 49287-14 to the Facility Manager, who, on February 5, 2014, concurred with the grievance officer's response, stating that "the grievance officer has given you appropriate information and direction to take moving forward." Id.
No final appeal was filed to the Secretary's Office of Inmate Grievances and Appeals. Instead, Plaintiff wrote a letter to the DOC Office of Population Management ("OPM") stating that he was being discriminated by his unit management team. Id. By response dated February 27, 2014, the OPM Transportation Lieutenant responded with the following:
I am responding to your letter to the office of Population Management (OPM). In you correspondence you are stating that you are being discriminated against by your unit management team. Please discuss these problems with your facility administration or please use the inmate grievance system for further complaints.
Id.
On April 7, 2014, Plaintiff received an Administrative Custody Status memo stating the following:
On 3/21/2014, "other" report was written to place you in administrative custody under investigation. An additional 15 days has been requested and granted for the Investigation. Your AC Investigative status has been extended through 04/19/2014.
Id. Plaintiff's administrative custody status was continued again on April 15, 2014 and April 29, 2014. Id.
On May 26, 2014, Plaintiff received Misconduct No. B027552 for Possession of Contraband. Id. On May 30, 2014, Plaintiff pled guilty to the misconduct and the contraband was revoked. Id.
On June 9, 2014, Plaintiff filed Grievance No. 513144-14, alleging that Defendant Harper made some sort of defamatory statement to his character regarding the misconduct. Id. On June 16, 2014, Grievance No. 513144-14 was rejected by Defendant Hollibaugh because a grievance must be legible, understandable and presented in a courteous manner. Id.
On June 26, 2014, Plaintiff filed Grievance No. 51575-14, challenging Misconduct No. B027552, which he received on May 26, 2014. Id. On Jun 27, 2014, Defendant Hollibaugh rejected the grievance, as grievances related to Inmate Discipline/Misconduct Procedures are to be grieved pursuant to DC-ADM 801. Id.
In July 8, 2014 Plaintiff was transferred to SCI-Fayette. Id.
On February 19, 2015, Plaintiff filed the above captioned action seeking compensatory and punitive damages for violations of his First, Fifth, Eighth and Fourteenth Amendment rights, when he was denied an incentive based transfer to another prison and Defendants retaliated against him for filing grievances by placing him in administrative custody in the prison, issued him a fabricated misconduct and transferred him away from his region. Id.
IV. Discussion
Section 1997e(a) of title 42 U.S.C. provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." This "exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). A prisoner must exhaust all available administrative remedies before initiating a federal lawsuit. Booth v. Churner, 532 U.S. 731, 739 (2001). Failure to exhaust available administrative remedies is an affirmative defense. Ray v. Kertes, 285 F.3d 287 (3d Cir. 2002). As such, the failure to exhaust available administrative remedies must be pleaded and proven by the Defendants. Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002).
Defendants have properly raised the matter of exhaustion of administrative remedies made available to inmates confined within the Department of Corrections. The Pennsylvania Department of Corrections' administrative remedies for inmate grievances are provided for in Department of Corrections Administrative Directive 804. See www.cor.state.pa.us, DOC Policies, DC-ADM 804, Inmate Grievance System Policy ("DC-ADM 804"). This policy establishes the Consolidated Inmate Grievance Review System, through which inmates can seek to resolve issues relating to their incarceration. Id. The first step in the inmate grievance process is initial review. Id. Grievances must be submitted for initial review within 15 working days after the event upon which the grievance is based. Id. After initial review, the inmate may appeal to the superintendent of their institution. Id. Upon completion of the initial review and the appeal from the initial review, an inmate may seek final review with the Chief of the Secretary's Office of Inmate Grievances and Appeals (SOIGA). Id.
It is clear from Plaintiff's own exhibits attached to his complaint that Plaintiff has failed to exhaust his administrative remedies before filing the above captioned action, as it is clear the action was filed prior to Plaintiff seeking final review of his grievance. Although the Facility Manager timely responded on February 5, 2014, to Plaintiff's appeal of Grievance No. 492487-14 regarding Plaintiff's Incentive Based Transfer, Plaintiff took no further action to appeal his grievance to the Secretary's Office of Inmate Grievances and Appeals for final review. In fact, the only grievance Plaintiff appealed to final review between January, 2013 and his transfer on July 8, 2014, was Grievance No. 502320, regarding a cut he received on his right index finger because the edge under the table was not filed down. (See Doc. 17-1 at 6-7, Declaration of Keri Moore, Assistant Chief Grievance Officer in the Secretary's Office of Inmate Grievance and Appeals).
In response, Plaintiff attempts to argue that he has "showed good faith in every step to exhaust every issue for his IBT" and that "Defendants erred when his appeal was sent to the OPR office". (Doc. 20 at 16, brief in opposition). Courts have held that affirmative misconduct by prison officials, designed to impede or prevent an inmate's attempts to exhaust, may render administrative remedies unavailable. See Todd v. Benning, 173 Fed. App'x 980, 982-83 (3d Cir. 2006) (expressing approval of Eighth Circuit's holding in Miller v. Norris, 247 F.3d 736 (8th Cir. 2001) that administrative remedies were not available where prison officials "purportedly prevented prisoner from employing the prison's grievance system"). An inmate can 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." Davis v. Warman, 49 Fed. App'x 365, 368 (3d Cir. 2002). Case law recognizes a clear "reluctance to invoke equitable reasons to excuse [an inmate's] failure to exhaust as the statute requires." Davis, 49 Fed. App'x at 368.
In the absence of competent proof that an inmate was misled by corrections officials, or some other extraordinary circumstances, inmate requests to excuse failure to exhaust are frequently rebuffed by the courts. For example, an inmate cannot excuse a failure to timely comply with these grievance procedures by simply claiming that his efforts constituted "substantial compliance" with this statutory exhaustion requirement. Harris v. Armstrong, 149 Fed. App'x 58, 59 (3d Cir. 2005). Plaintiff acknowledges this fact in his brief in opposition when he states that "if the court did not allow the response of Theodore R. Cater, [to] act as the final exhaust for Plaintiff then Plaintiff has not properly exhaust this issue for his IBT." (Doc. 20 at 16).
In the instant action, Plaintiff failed to exhaust his administrative remedies with respect to the claims raised in the complaint. While Plaintiff attempts to place responsibility for his failure to exhaust at the hands of prison officials, his efforts in this regard are unavailing. Plaintiff simply has not shown that "he was misled or that there was some extraordinary reason he was prevented from complying with the statutory mandate." Davis, 49 Fed. App'x at 368. Plaintiff has pursued administrative remedies, but has abandoned his claims without completing the administrative review process. Such conduct plainly does not serve to excuse a failure to exhaust administrative remedies. See Banks v. Roberts, No. 1:06-CV-1232, 2007 WL 1574771, at *5 (M.D.Pa. 2007) (holding that while the plaintiff alleged that the defendants "obstructed" his efforts to pursue administrative remedies by refusing to provide proper forms and instructing others not to provide the necessary forms, the grievance process was available to him, and therefore, plaintiffs claim was procedurally defaulted for failure to comply with the process); Nyhuis v. Reno, 204 F.3d 65, 71 (3d Cir. 2000) (stating that there is no futility exception to the exhaustion requirement under any circumstances). It is clear that Plaintiff failed to exhaust administrative remedies before initiating the instant action. In light of his failure to properly exhaust all claims, the complaint will be dismissed. See Woodford v. Ngo, 548 U.S. 81, 92 (2006) (mandating complete exhaustion of all administrative remedies before filing suit); see also Rivera v. Pa. Dep't of Corr., 388 Fed. App'x 107, 108 (3d Cir. 2010) ("An inmate must exhaust his administrative remedies prior to filing a civil action in federal court").
V. Conclusion
For the reasons stated above, Defendants' motion to dismiss Plaintiff's amended complaint for Plaintiff's failure to exhaust administrative remedies prior to filing the above captioned action, will be GRANTED. An appropriate order shall issue.
2007 WL 1574771
Only the Westlaw citation is currently available. United States District Court, M.D. Pennsylvania.
Frederick BANKS, Plaintiff
v.
Art ROBERTS, et al., Defendants.
Civi Action No. 1:06-CV-01232.
May 31, 2007.
Attorneys and Law Firms
Frederick Banks, Yazoo City, MS, pro se.
Stephen Cerutti, Department of Justice/United States Attorney's Office, Harrisburg, PA, for Defendants.
MEMORANDUM
CHRISTOPHER C. CONNER, United States District Judge.
*1 Presently before the court is a motion to dismiss (Doc. 25) the amended complaint1 (Doc. 9) of plaintiff Frederick Banks ("Banks"), filed on behalf of the Federal Bureau of Prisons ("BOP"), and prison officials from the United States Penitentiary-Canaan ("USP-Canaan") in Waymart, Pennsylvania (collectively, "defendants").2 Banks contends that defendants have denied him the federal minimum wage for his work at USP-Canaan. He also makes several allegations regarding prison conditions at USP-Canaan. For the reasons set forth below, the motion to dismiss will be granted.
I. Statement of Facts
Banks' amended complaint, filed July 5, 2006, contains sixteen (16) counts against defendants, set forth as Bivens3 claims, a Federal Tort Claims Act (FTCA) claim, a claim of negligence, and claims under the False Claims Act. At all relevant times, Banks was incarcerated at USP-Canaan.4
A. Bivens Claims
Banks first alleges that defendants "conspired to deny Banks his constitutional rights to equal protection and equal treatment by paying him lower wages than other inmates in the same pay grade and denying him the possibility of bonuses and refused to pay him the federal minimum wages even though he is a federal employee and is entitled to be payed minimum wage." (Doc. 9 at 1.) He also complains of dirty showers, a "diet of chicken and out dated pudding," and an overcrowded housing unit at USP-Canaan. (Doc. 9 at 5.) In addition, Banks claims that when he challenged these conditions through the BOP administrative remedy procedure, defendants retaliated against him by "curtailing his postage" in order to prevent him from filing documents with the "various courts and BOP officials." (Id.)
The record shows that Banks filed twenty-three (23) requests for administrative remedy from USP-Canaan on various topics and to various levels, including both the Northeast Regional and Central Offices. (Doc. 26-2, Exhibit ("Ex.") 1.)5 Several of those requests pertain to Banks' claims in the amended complaint.
On June 21, 2006, Banks filed administrative remedy 417605-F1, requesting "equal pay and bonuses and a job in UNICOR." (Ex. 1 at j 9.) That request was denied on July 5, 2006, and there is no record of Banks appealing the decision. (Id.) Also on June 21, 2006, Banks filed administrative remedy 417685-F1, requesting the "national minimum wage rather than .12/hour." (Ex. 1 at 7.) That request was also denied on July 5, 2006. (Id.) There is no record of Banks appealing that decision. (Ex. 1 at j 10.)
On June 27, 2006, Banks filed administrative remedy 418393-F1, claiming the showers drains were not functioning and were a health concern. (Ex. 1 at 8.) That request was denied on July 10, 2006. (Id.) Banks did not appeal this decision. (Id.)
On June 27, 2006, Banks filed administrative remedy 418655-F1 concerning his allegations of overcrowding in his housing unit. (Ex. 1 at 8.) That request was denied on July 12, 2006. (Id.) Banks appealed that decision to the Northeast Regional Office with administrative remedy 418655-R1 on July 25, 2006. (Ex. 1 at 15.) The Regional Office denied his request on July 26, 2006. (Id.) There is no record of Banks appealing that decision.
*2 On May 26, 2006, Banks filed administrative remedy 414747-F1, requesting stamps, but withdrew that request on May 30, 2006. (Ex. 1 at 5.) On June 23, 2006, Banks filed administrative remedy 417833-F1, requesting "unlimited postage stamps/envelopes." (Ex. 1 at 7.) This request was denied on July 10, 2006. (Id.) Banks did not appeal either of these decisions. The record indicates, however, that USP-Canaan officials issued stamps to Banks as follows: June 1, 2006 (seven (7) stamps for legal mail); June 6, 2006 (sixteen (16) stamps for legal mail); June 7, 2006 (twenty-six (26) stamps for legal mail); June 9, 2006 (three (3) stamps for legal mail); June 12, 2006 (ten (10) stamps for legal mail); June 16, 2006 (sixty-four (64) stamps for legal mail); and, June 19, 2006 (thirty-six (36) stamps for legal mail). (Doc. 26-2, Ex. 2 at ¶ 2.)6 Additionally, the record indicates that, in accordance with BOP policy, Banks was issued five (5) stamps at no cost on June 20, 2006, and June 26, 2006, and informed that he would be issued five (5) stamps per week thereafter. (Ex. 2 at ¶ 3.)7
B. FTCA Claim
In his amended complaint, Banks asserts that he "filed a Federal Tort Claim against the federal bureau of prisons and is entitled to damages for the herein cited violations." (Doc. 9 at 4.) In a notice to the court, defendants submitted documentation revealing that Banks exhausted his FTCA claim.8 (Doc. 30.) That documentation indicates that Banks filed an administrative tort claim relating to his claims over his wages with the Northeast Regional Office on June 26, 2006.9 (See Doc. 30-2 at 4.) That claim was originally denied by the Regional Office due to Banks' failure to sign the claim. (Id.) Subsequently, B anks' claim was prop erly received by the Regional Office on August 7, 2006, and denied on February 1, 2007.10 (Doc. 30-2 at 6.) In denying the claim, the agency found that Banks, in fact, had received bonuses for his work as a landscaper; there was no evidence of Banks receiving treatment different from other inmates; an inmate is not entitled to the federal minimum wage for non-inmate employees; and, Banks had never entered into a contract with UNICOR for his employment at the prison.11 (Id.)
In addition, Banks asserts count fifteen (15) under negligence. In his amended complaint, he contends that USP-Canaan officials violated their duty to "protect him from harm and defend [Banks'] earning power to the fullest." (Doc. 9 at 4.) He argues that defendants breached these duties owed to him "when they flat out refused to bring Bank's [sic] pay up to snuff with other inmates, refused to provide bonuses, refused to place him in UNICOR even though he had signed a contract and even ignored his request because of his indigence to give him a tube of tooth paste." (Id.) Banks essentially raised these same claims when he filed his FTCA claim to the Regional Office.
Insofar as Banks is seeking damages for the negligence of BOP employees with regard to their protection of him as a federal inmate, it is the FTCA which confers on district courts subj ect matter jurisdiction over negligence actions against the United States. See 28 U.S.C. § 1346(b)(1). Consequently, and in the interest of justice to this pro se litigant, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), the court will construe this claim as one brought under the FTCA.12
C. False Claims Act
*3 Banks asserts counts eight (8) through fourteen (14) under the False Claims Act, see 31 U.S.C. § 3729 et seq., claiming that defendants "violated the False Claims Act by deceiving the United States and withholding wages from hardworking indigent inmates including Banks that they are entitled to." (Doc. 9 at 3.) In addition, he states, "Defendants violated the False Claims Act because they are withholding money from inmates, claiming there is a budget crunch, then reapplying the misused funds to their own benefit." (Id.)
Banks' argument here relates to his claim that he is entitled to the minimum wage for civilian non-prisoner federal employees. In support, Banks asserts that he is "a Federal Employee who happens to be an inmate." (Id.) In their motion to dismiss, defendants contend that Banks' False Claims Act claims should be dismissed because Banks, as a federal inmate, is not an employee in the context of minimum wage for purposes of the Federal Fair Labor Standards Act, see 29 U.S.C. §§ 201-209.
II. Motion to Dismiss
A. Standard of Review
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a claim that fails to assert a basis upon which relief can be granted. FED. R. CIV. P. 12(b)(6). In the context of a motion to dismiss under Rule 12(b)(6), the court must accept as true all of the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom. Langford v. City of Atlantic City, 235 F.3d 845, 847 (3d Cir.2000) (quoting Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.1996)). Although the court is generally limited in its review to the facts alleged in the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran &Berman, 38 F.3d 1380, 1385 n. 2 (3d Cir.1994); see also In re Burlington Coat Factory Sec. Litig, 114 F.3d 1410, 1426 (3d Cir.1997) (stating that, although a district court ruling on a motion to dismiss may not generally consider matters extraneous to the pleadings, a "document integral to or explicitly relied upon in the complaint" may be considered "without converting the motion [to dismiss] into one for summary judgment") (quoting Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1220 (1st Cir.1996)).
The court will not dismiss a complaint for failure to state a claim unless it appears beyond a doubt that "no relief could be granted under any set of facts that could be proved consistent with the allegations." Swierkiewicz v. Sorema N. A., 534 U.S. 506, 514 (2002) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). "The complaint will be deemed to have alleged sufficient facts if it adequately put the defendants on notice of the essential elements of the plaintiffs' cause of action." Langford, 235 F.3d at 847 (quoting Nami, 82 F.3d at 65). The court must grant leave to amend before dismissing a complaint that is merely deficient. See Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir.2000).
B. Discussion
*4 Defendants first seek to dismiss Banks' amended complaint on the grounds that Banks failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act of 1995 ("PLRA"), Pub.L. No. 104-134, 110 Stat. 1321 (1996).
1. Bivens Claims
The PLRA requires a prisoner to present his or her claims through an administrative grievance process before seeking redress in federal court. The act specifically provides as follows:
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
42 U.S.C. § 1997e(a). A prisoner must exhaust administrative remedies as to any claim that arises in the prison setting, regardless of any limitations on the kind of relief that may be gained through the grievance process. See Porter v. Nussle, 534 U.S. 516, 532 (2002); Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001). "[I]t is beyond the power . . . of any . . . [court] to excuse compliance with the exhaustion requirement, whether on the ground of futility, inadequacy or any other basis." Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir.2000) (quoting Beeson v. Fishkill Corr. Facility, 28 F.Supp.2d 884, 894-95 (S.D.N.Y.1998) (citing Weinberger v. Salfi, 422 U.S. 749, 766 (1975)). The PLRA "completely precludes a futility exception to its mandatory exhaustion requirement." Nyhuis, 204 F.3d at 71. The PLRA also mandates that an inmate "properly" exhaust administrative remedies before filing suit in federal court. Woodford v. Ngo, 126 S.Ct. 2378, 2387 (2006). "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Id. at 2386. Such requirements "eliminate unwarranted federal-court interference with the administration of prisons, and thus seeks to `affor[d] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case." Id. at 2387 (quoting Nussle, 534 U.S. at 525). Failure to substantially comply with procedural requirements of the applicable prison's grievance system will result in a procedural default of the claim. Spruill v. Gillis, 372 F.3d 218, 227-32 (3d Cir.2004).
Further, the United States Court of Appeals for the Third Circuit recently stated 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." Oriakhi v. United States, 165 Fed. Appx. 991, 993 (3d Cir.2006) (not precedential). In citing to a case from the United States Court of Appeals for the Eighth Circuit, Johnson v. Jones, 340 F.3d 624, 627-28 (8th Cir.2003), the Third Circuit Court found that the lower court had properly dismissed plaintiff's complaint because his exhaustion attempt took place after he filed his Bivens claim. "[T]he district court must look to the time of filing, not the time the district court is rendering its decision, to determine if exhaustion has occurred." Oriakhi, 165 Fed. Appx. at 993 (quoting Johnson, 340 F.3d at 627-28).
*5 A prisoner does not have to allege in his complaint that he has exhausted administrative remedies. Ray v. Kertes, 285 F.3d 287, 295 (3d Cir.2002). Failure to exhaust available administrative remedies is an affirmative defense. Id. Therefore, it must be pleaded and proven by the defendants. Brown v. Croak, 312 F.3d 109, 111 (3d Cir.2002).
An inmate may challenge any aspect of his or her confinement using the BOP's administrative remedy procedure, which is set forth at 28 C.F.R. §§ 542 et seq. An inmate first must informally present his complaint to staff, and staff shall attempt to informally resolve any issue before an inmate files a request for administrative relief. 28 C.F.R. § 542.13(a). If unsuccessful at informal resolution, the inmate may raise his complaint with the warden of the institution where he is confined. Id. at § 542.14(a). If dissatisfied with the response, he may then appeal an adverse decision to the Regional Office and the Central Office of the BOP. Id. at §§ 542.15(a) and 542.18. No administrative appeal is considered finally exhausted until a decision is reached on the merits by the BOP's Central Office.
Defendants claim that the record of Banks' requests for administrative remedies shows that he has not properly exhausted all available administrative remedies with respect to his Bivens claims, and therefore, the amended complaint should be dismissed. Banks addresses exhaustion of administrative remedies in his amended complaint. He claims that he filed administrative remedies with the USP-Canaan counselor. (Doc. 9 at 1.) However, Banks alleges that exhaustion of those remedies became futile when he learned that defendants "will not bend on the wages." (Id.) In addition, he states, "In his good faith effort Banks will continue to file the administrative remedies during the pendency of this action and notify the Court with a supplement or notice once the futile exhaustion becomes finalized by filing [administrative remedies]." (Doc. 9 at 1-2.)
In his response to defendants' motion to dismiss (Doc. 27), Banks does not dispute the veracity of the exhibits filed by defendants in support of their motion to dismiss, but rather continues to claim that his efforts to properly and fully exhaust his administrative remedies were "obstructed" by defendants. (Doc. 27 at 1.) In support, he asserts that defendants refused to provide him with proper forms and "instructed . . . officials at other institutions while I was in transit not provide me with the administrative remedy forms so that I could fully exhaust remedies like defendants have done at Canaan."13 (Id.) He again asserts that defendants failed to provide him with stamps, and that any claims by defendants to the contrary "is a complete and utter lie." (Doc. 27 at 2.)
Banks' futility argument with respect to his wages is unconvincing. An inmate must take advantage of all administrative remedies available to him. See Brown, 312 F.3d at 111. An administrative remedy may be found to be unavailable where a prisoner is prevented by prison authorities from pursuing the prison grievance process. See e.g., Brown, 312 F.3d at 112 (noting that prison security officials told inmate he must wait to file a grievance until the investigation was complete); Camp v. Brennan, 219 F.3d 279, 281 (3d Cir.2000) (finding that inmate put on grievance restriction). In Banks' case, there is no record that he appealed the decision of USP-Canaan officials denying his constitutional claims relating to his wages. However, Banks states that exhaustion of this claim "is futile since the BOP will not bend on the wages." (Doc. 27 at 2.) Because the PLRA precludes a futility exception to the exhaustion requirement, see Nyhuis, 204 F.3d at 71, the defendants' motion to dismiss as to this claim will be granted.
*6 The court now turns to the remaining Bivens claims asserted by Banks. First, Banks complains of dirty showers in USP-Canaan. The record evidence indicates that Banks filed his first administrative remedy with regard to this claim on June 27, 2006, one week prior to filing his amended complaint in this court. (See Doc. 9 at 8.) That request was denied on July 10, 2006, five days after Banks' amended complaint was received in this court. (See Doc. 9.) Given this timing, clearly not only did Banks not comply with the BOP's administrative remedy procedure, but he also did not afford prison officials time and opportunity to address his request for administrative remedy prior to commencing an action in this court. See Woodford, 126 S.Ct. at 2387. Therefore, by examining the docket, it is clear that the court is precluded from reviewing this claim because any exhaustion attempt on the part of Banks could only have taken place after he filed the instant Bivens claim. See Oriakhi, 165 Fed. Appx. at 993. Consequently, the motion to dismiss as to this claim will be granted without prejudice to any right Banks may have to assert it in a newly filed complaint.
Second, Banks asserts that "inmates are sustained on a diet of chicken and out dated pudding." (Doc. 9 at 5.) The record evidence indicates that Banks had not filed a request for administrative remedy with regard to this claim prior to filing the instant action in this court. As a result, the court is precluded from reviewing this claim due to Banks' failure to exhaust his administrative remedies. Consequently, the motion to dismiss as to this claim will be granted without prejudice to any right Banks may have to assert it in a newly filed complaint.
Third, Banks complains of overcrowding in his housing unit at USP-Canaan. The record evidence indicates that Banks initially filed a request for administrative remedy with regard to this claim on June 27, 2006, one week prior to filing the amended complaint in this court. (See Doc. 9 at 8.) That request was denied on July 12, 2006, one week after Banks' amended complaint was received in this court. (See Doc. 9.) Banks appealed that denial to the Regional Office on July 26, 2006, three weeks after his amended complaint was received in this court. (See id.) Here again, by looking to the timing of the filing of the amended complaint, it is clear that the court is precluded from reviewing this claim because any exhaustion attempt on the part of Banks could only have taken place after he filed the instant Bivens claim. See Oriakhi, 165 Fed. Appx. at 993. Consequently, the motion to dismiss as to this claim will be granted without prejudice to any right Banks may have to assert it in a newly filed complaint.
Finally, Banks asserts that when he challenged the conditions of USP-Canaan through the BOP administrative remedy procedure, defendants retaliated against him by "curtailing his postage" in order to prevent him from filing documents with the "various courts and BOP officials." (Doc. 9 at 5.) To the extent that Banks is claiming that USP-Canaan officials have violated his constitutional right of access to the courts, this claim will be dismissed as redundant with no harm or prejudice to Banks, as this claim is being addressed in this court in consolidated case number 1:06-cv-1127, Banks v. One or More Unknown Confidential Informants of Federal Prison Camp Canaan, et al.
*7 In sum, Banks has failed to exhaust his administrative remedies with respect to the Bivens claims related to his allegations regarding prison conditions at USP-Canaan and raised in the amended complaint. Consequently, defendants' motion to dismiss as to these claims will be granted without prejudice to any right Banks may have to assert them in a newly filed complaint. Because Banks has not been precluded from asserting his complaint with respect to stamps, a claim which is being adjudicated in Banks v. One or More Unknown Confidential Informants of Federal Prison Camp Canaan, et al., civil no. 1:06-cv-1127, that claim will be dismissed here as redundant to the identical claims presented in that case.
2. FTCA Claim
It is well-established that a complaint filed pursuant to the FTCA must be brought against the United States. 28 U.S.C. § 2679(b)(1). An agency or employee of the United States is not a proper defendant in such an action. 28 U.S.C. § 2679(b); Sprecher v. Graber, 716 F.2d 968, 973 (2d Cir.1983); Scheimer v. Nat'l Capital Region, Nat'l Park Services, 737 F.Supp. 3, 4 (D.D.C.1990); Stewart v. United States, 503 F.Supp. 59, 61 (N.D.Ill.1980).
Generally, under the principle of sovereign immunity, the United States cannot be sued for damages unless it consents to being sued. United States v. Mitchell, 445 U.S. 535, 538 (1980). The FTCA is the consent by the United States to be sued for torts committed by its employees while in the scope of their employment. See 28 U.S.C. § 2675(a). The FTCA sets forth the government's consent to be sued for the negligent conduct of its employees "in the same manner and to the same extent as a private individual under like circumstances." Howell v. United States, 932 F.2d 915, 917 (11th Cir.1991) (quoting 28 U.S.C. § 2674). The FTCA allows federal inmates to sue the United States for injuries sustained while incarcerated. United States v. Muniz, 374 U.S. 150, 153 (1963).
In presenting a FTCA claim, a plaintiff must show: (1) that a duty was owed to him by a defendant; (2) a negligent breach of said duty; and (3) that the negligent breach was the proximate cause of the plaintiff's injury/loss. Mahler v. United States, 196 F.Supp. 362, 364 (W.D.Pa.1961), affd 306 F.2d 713 (3d Cir.), cert. denied, 371 U.S. 923 (1962). However, the FTCA limits the jurisdiction of federal courts to hear claims under its provisions. A FTCA plaintiff must first present his claim in writing to the appropriate federal agency as an administrative tort claim. 28 U.S.C. § 2675(a). The statute of limitations for submitting an administrative tort claim to the agency is two years. 28 U.S.C. § 2401(b). The plaintiff may sue in federal court only after receiving a "final denial" by the agency.14 28 U.S.C. § 2675(a). The requirement of receiving a "final denial" by the administrative agency on a FTCA claim "is jurisdictional and cannot be waived." Bialowes v. United States, 443 F.2d 1047, 1049 (3d Cir.1971).
*8 In the instant case, Banks' FTCA action fails because he has not named the United States as a defendant. The individual defendants are not proper parties under the FTCA. Because the FTCA authorizes suits only against the United States, see 28 U.S.C. § 2679, Banks' claims against the individual defendants will be dismissed.
Moreover, an amendment to Banks' complaint would be futile. Federal Rule of Civil Procedure 15(a) provides, in pertinent part, that after a responsive pleading, a party may amend its pleading "only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Denial of an amendment must be based on bad faith or dilatory motives, truly undue or unexplained delay, repeated failures to cure the deficiency by amendments previously allowed, or futility of amendment. Foman v. Davis, 371 U.S. 178, 182 (1962); USX Corp. v. Barnhart, 395 F.3d 161, 166 (3d Cir.2004). "Amendment of the complaint is futile if the amendment will not cure the deficiency in the original complaint or if the amended complaint cannot withstand a renewed motion to dismiss." Jablonski v. Pan American World Airways, Inc., 863 F.2d 289, 292 (3d Cir.1988) (citing Massarsky v. General Motors Corp., 706 F.2d 111, 125 (3d Cir.1983)).
In the instant case, Banks' FTCA claim is based upon the constitutional doctrines of equal protection and due process, as he clearly states in his claim filed in the Northeast Regional Office. (See Doc. 30-2 at 5.) It is well-established that claims for damages arising from constitutional violations can only be brought against individual federal defendants under Bivens, and cannot be asserted against the United States or any of its components. See F.D.I.C. v. Meyer, 510 U.S. 471, 485 (1994). Consequently, even if he were to amend the claim to name the United States as a party, Banks' claim would still be subject to dismissal because he has asserted only constitutional violations.
Turning to Banks' negligence claim set forth in his amended complaint, and construed here under the FTCA,15 the court is barred from entertaining this claim because Banks has not met the administrative prerequisites to filing a claim for negligence under the FTCA, see 28 U.S.C. § 2675(a), prerequisites which are jurisdictional in nature and may not be waived. See Sprecher v. Graber, 716 F.2d 968, 973 (2d Cir.1983). As set forth above, the FTCA specifically requires an initial presentation of the claim to the appropriate federal agency and a final denial by the agency. 28 U.S.C. § 2675(a). The purpose of the "exhaustion requirement is [. . .] to provide notice to the agency so that it can investigate the claim." Barnes v. United States, 137 Fed. Appx. 184, 188 (10th Cir.2005).
Banks' administrative tort claim was submitted on June 18, 2006, and received by the BOP on June 26, 2006. (Doc. 30-2 at 5.) In his tort claim, Banks claimed that defendants' actions with regard to his pay at USP-Canaan were "in violation of the right to equal treatment and equal protection in accordance with due process." (Id.) By memorandum issued on February 7, 2007, Banks' administrative tort claim was denied by the Northeast Regional Office. (Doc. 30-2 at 6.)
*9 Banks' administrative tort claim only cites the constitutional doctrines of equal protection and due process. Thus, the BOP was not properly notified as to claims involving negligence on the part of defendants. Furthermore, the tort claim makes no mention of negligence and no further administrative tort claims were filed by Banks with regard to this issue. Because Banks has failed to present the entirety of his claim to the agency in accordance with 28 U.S.C. §§ 2675(a), 2674, Banks' claim involving negligence cannot proceed.
Moreover, even if the court were to analyze the instant claim under the FTCA, the facts demonstrate that Banks has failed to state a prima facie case of negligence under applicable Pennsylvania law.16 In order to establish negligence under Pennsylvania law, Banks must show: (1) a duty or obligation recognized by law, requiring a BOP employee to conform to a certain standard of conduct; (2) a failure to conform to the standard required; (3) a causal connection between the conduct and the resulting injury; and (4) actual loss or damage resulting to the interests of another. Morena v. South Hills Health Sys., 462 A.2d 680, 684 n. 5 (Pa.1983); see also Kleinknecht v. Gettysburg College, 989 F.2d 1360, 1366 (3d Cir.1993). Furthermore, 18 U.S.C. § 4042 governs the government's duty of care involving injury to federal prisoners. See 18 U.S.C. § 4042;17 Turner v. Miller, 679 F.Supp. 441, 443 (M.D.Pa.1987). That duty of care is one of ordinary diligence to keep prisoners safe from harm. Turner, 679 F.Supp. at 443.
In the instant case, Banks claims that defendants have a duty "to protect him from harm and defend his earning power to the fullest." (Doc. 9 at 4.) Banks further alleges that defendants breached that duty when "when they flat out refused to bring Bank's [sic] pay up to snuff with other inmates, refused to provide bonuses, refused to place him in UNICOR even though he had signed a contract and even ignored his request because of his indigence to give him a tube of tooth paste."18 (Id.)
Defendants do not have a duty to defend Banks' "earning power to the fullest," because prisoners have no entitlement to a specific job, or even to any job. See James v. Quinlan, 866 F.2d 627, 630 (3d Cir.1989). As a result, a claim for negligence on that basis fails.
There is no question that prison officials of the United States have a statutory duty to protect inmates from harm.19 However, Banks has failed to demonstrate a breach of that duty to protect inmates from harm. Banks' dissatisfaction with his wages at USP-Canaan simply does not constitute a breach of the duty to protect him from harm. As set forth infra, Banks is not entitled to the federal minimum wage provided to civilian non-prisoner employees. Consequently, assuming that Banks' basis for claiming injury or loss20 was due mainly to defendants' failure to compensate him with the federal minimum wage, he has failed to state an actual injury or loss. Further, the BOP's investigation found that Banks was compensated properly for his landscaping duties, and, in fact, had received a bonus for his work. In sum, the court finds no harm has been established by Banks, let alone a breach of the duty to protect him from harm.
3. False Claims Act
*10 In his claim under the False Claims Act ("FCA"), see 31 U.S .C. § 3729 et seq.,21 Banks asserts that defendants are violating the FCA by not paying him the minimum wage afforded civilian non-prisoner federal employees.22 In doing so, Banks claims, defendants are "deceiving the United States." (Doc. 9 at 3.) In their motion to dismiss, defendants contend that Banks' claim here fails because he is not entitled to the federal minimum wage simply because of his status as a federal inmate. The court agrees with defendants.
Provisions relating to the federal minimum wage are found in the Fair Labor Standards Act ("FLSA"), see 29 U.S.C. §§ 201-209. Section 206(a) of the FLSA reads in relevant part:
Every employer shall pay to each of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, wages at the following rates. . . .
29 U.S.C. § 206(a).
The Third Circuit Court has explicitly held that prisoners who perform intraprison work are not entitled to minimum wages under the FLSA. Tourscher v. McCullough, 184 F.3d 236, 243 (3d Cir.1999). In doing so, the Third Circuit Court found that each circuit that has addressed the question of whether an inmate is entitled to the federal minimum wage has concluded that prisoners producing goods and services used by the prison should not be considered employees under the FLSA. See id. (citing Gambetta v. Prison Rehabilitative Indus., 112 F.3d 1119, 1124-25 (11th Cir.1997); Danneskjold v. Hausrath, 82 F.3d 37, 43 (2d Cir.1996); Reimonengv. Foti, 72 F.3d 472, 475 n. 3 (5th Cir.1996); Henthorn v. Dept. of Navy, 29 F.3d 682, 684-87 (D.C.Cir.1994); McMaster v. Minnesota, 30 F.3d 976, 980 (8th Cir.1994); Hale v. Arizona, 993 F.2d 1387, 1392-98 (9th Cir.1993) (en banc); Franks v. Oklahoma State Indus., 7 F.3d 971, 972 (10th Cir.1993); Harker v. State Use Indus., 990 F.2d 131, 133 (4th Cir.1993); Miller v. Dukakis, 961 F.2d 7, 8-9 (1st Cir.1992); Vanskike v. Peters, 974 F.2d 806, 809-10 (7th Cir.1992)). The United States Court of Appeals for the Second Circuit, in Danneskjold, reasoned,
The relationship is not one of employment; prisoners are taken out of the national economy; prison work is often designed to train and rehabilitate; prisoners' living standards are determined by what the prison provides; and most such labor does not compete with private employers. . . .
Danneskjold, 82 F.3d at 42-43.
In the instant case, Banks indicates in his amended complaint that he is employed by USP-Canaan as a landscaper on the USP-Canaan compound. Banks does not assert that any of his landscaping duties take place on any property other than the USP-Canaan compound. It follows, then, that Banks is only performing intra-prison work, and therefore is not entitled to minimum wages under the FLSA. Consequently, Banks' argument that defendants are violating the FCA by not paying him the federal minimum wage fails, and defendants' motion to dismiss as it relates to this claim will be granted.
III. Conclusion
*11 For the reasons stated herein, defendants' motion to dismiss will be granted on the basis of Banks' failure to properly exhaust administrative remedies relating to his Bivens claims, and his failure to establish claims under the FTCA and the FCA.
An appropriate order will issue.
ORDER
AND NOW, this 31st day of May, 2007, upon consideration of the motion to dismiss (Doc. 25), and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that:
1. The motion to dismiss (Doc. 25) the amended complaint is GRANTED as follows:
a. Plaintiff's Bivens claims relating to his federal wages are dismissed with prejudice.
b. Plaintiff's Bivens claims relating to USP-Canaan conditions are dismissed without prejudice for failure to exhaust administrative remedies.
c. Plaintiff's claim relating to stamps is dismissed as redundant to identical claims presented in Banks v. One or More Unknown Confidential Informants of Federal Prison Camp Canaan, et al., civil no. 1:06-cv-1127.
d. Plaintiff's claim under the Federal Tort Claims Act is dismissed for failure to state a claim under Fed.R.Civ.P. 12(b)(6).
e. Plaintiff's claim under the False Claims Act is dismissed for failure to state a claim under FED. R. CIV. P. 12(b)(6).
2. The Clerk of Court is directed to CLOSE this case.
3. Any appeal from this order is DEEMED frivolous and not in good faith. See 28 U.S.C. § 1915(a)(3).
All Citations
Not Reported in F.Supp.2d, 2007 WL 1574771.
