UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KENNETH MURCHISON, : 4:16-CV-00206

:

 Plaintiff :

: (Judge Brann)

 v. :

: (Magistrate Judge Schwab)

UNITED STATES OF AMERICA, et al., :

:

 Defendants :

REPORT AND RECOMMENDATION

I. Introduction.

The plaintiff, Kenneth Murchison, a federal prisoner proceeding pro se,

claims that he was not provided appropriate medical care following surgery for 

colon cancer. The complaint fails to state a claim upon which relief may be granted

against all the defendants except the United States. Although we previously 

granted Murchison leave to file an amended complaint, he has not filed an amended 

complaint. Thus, we recommend that all the defendants except the United States be 

dismissed.

II. Factual Background and Procedural History.

Murchison is currently incarcerated at the Federal Correctional Institution at

Butner, North Carolina, but his claims concern events that happened at the United 

States Penitentiary at Lewisburg, Pennsylvania. The defendants are: (1) the United 

Case 4:16-cv-00206-MWB Document 12 Filed 07/11/16 Page 1 of 17
2

States of America; (2) “Named Unknown Federal Bureau of Prisons Employees, 

Medical/Security Staff”; (3) J.E. Thomas, the Warden of USP Lewisburg; (4) “other 

Wardens;” (5) Dr. Pigos; and (4) the Evangelical Community Hospital. Doc. 1 at 

1-2. 

In June of 2014, Murchison had a colonoscopy at Evangelical Community 

Hospital, which revealed three tumors. A biopsy, which was performed without 

Murchison’s consent, revealed cancer. Murchison alleges that although a doctor 

had recommended that he be transferred to a Level 4 hospital for surgery, that 

transfer was cancelled or disapproved by a Board of Health Administrators, and he 

had surgery for his colon cancer at Evangelical Community Hospital, which is a 

Level 2 hospital. According to Murchison, prison security staff forced medical 

staff at Evangelical Community Hospital to discharge him too early—after only five 

days and while he had an infection in his surgical incision. Murchison alleges that 

following his return to USP Lewisburg, he was not given the proper antibiotics and 

his infection spread. According to Murchison, he was rotting alive, his intestines 

“literally, actually, and specifically fell out into [his] hands,” he bled, and he almost 

died.

Case 4:16-cv-00206-MWB Document 12 Filed 07/11/16 Page 2 of 17
3

Murchison was taken back to Evangelical Community Hospital by ambulance 

and a second surgery was performed. After that surgery, Murchison was bed ridden 

and temporarily paralyzed with a “wound-VAC” on his abdomen for almost a 

month, he suffered extreme pain, and he was scarred and disfigured. According to 

Murchison, the second surgery could have been avoided had prison staff not forced 

him to be released from the hospital so soon after the first surgery. 

After his second surgery, Murchison was transferred to the Federal Medical 

Center in Butner, North Carolina, which is a Level 4 facility, where Murchison 

received appropriate care. But in October of 2014, he was then transferred to 

“Butner #2,” where, according to Murchison, he is not receiving appropriate care.

Murchison contends that security and medical staff were grossly negligent. 

He also contends that they violated his Eighth Amendment right to be free from 

cruel and unusual punishment. He seeks compensatory and punitive damages as 

well as preliminary injunctive relief and the appointment of counsel. 

We previously denied Murchison’s request for the appointment of counsel, 

granted Murchison’s application for leave to proceed in forma pauperis, and after 

screening the complaint, concluded that the complaint fails to state a claim upon 

which relief may be granted against all the defendants except the United States. We 

Case 4:16-cv-00206-MWB Document 12 Filed 07/11/16 Page 3 of 17
4

granted Murchison leave to file an amended complaint, but he has not done so. 

Accordingly, we recommend that all the defendants except the United States be 

dismissed.

III. Screening of In Forma Pauperis ComplaintsCStandard of Review.

This Court has a statutory obligation to conduct a preliminary review of pro se

complaints brought by prisoners given leave to proceed in forma pauperis in cases 

that seek redress against government officials. Specifically, the court must review 

the complaint in accordance with 28 U.S.C. ' 1915A, which provides, in pertinent 

part:

(a) Screening.CThe court shall review, before docketing, 

if feasible or, in any event, as soon as practicable after docketing, 

a complaint in a civil action in which a prisoner seeks redress 

from a governmental entity or officer or employee of a 

governmental entity.

(b) Grounds for dismissal.COn review, the court shall 

identify cognizable claims or dismiss the complaint, or any 

portion of the complaint, if the complaintC

(1) is frivolous, malicious, or fails to state a claim 

upon which relief may be granted; or

(2) seeks monetary relief from a defendant who is 

immune from such relief.

Under Section 1915A, the court must assess whether a pro se complaint “fails 

to state a claim upon which relief may be granted.” This statutory text mirrors the 

Case 4:16-cv-00206-MWB Document 12 Filed 07/11/16 Page 4 of 17
5

language of Rule 12(b)(6) of the Federal Rules of Civil Procedure, which provides 

that a complaint should be dismissed for “failure to state a claim upon which relief 

can be granted.” Fed.R.Civ.P. 12(b)(6).

“Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a 

‘short and plain statement of the claim showing that the pleader is entitled to relief.’” 

Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The statement required by Rule 

8(a)(2) must give the defendant fair notice of what the plaintiff=s claim is and of the 

grounds upon which it rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Detailed 

factual allegations are not required, but more is required than labels, conclusions, 

and a formulaic recitation of the elements of a cause of action. Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 555 (2007). “In other words, a complaint must do more 

than allege the plaintiff=s entitlement to relief.” Fowler v. UPMC Shadyside, 578 

F.3d 203, 211 (3d Cir. 2009). “A complaint has to ‘show’ such an entitlement with 

its facts.” Id. 

In considering whether a complaint fails to state a claim upon which relief 

may be granted, the court must accept as true all well-pleaded factual allegations in 

the complaint, and all reasonable inferences that can be drawn from the complaint 

must be construed in the light most favorable to the plaintiff. Jordan v. Fox 

Case 4:16-cv-00206-MWB Document 12 Filed 07/11/16 Page 5 of 17
6

Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). A court, 

however, “need not credit a complaint’s bald assertions or legal conclusions when

deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 

(3d Cir. 1997). Additionally, a court need not “assume that a . . . plaintiff can prove 

facts that the . . . plaintiff has not alleged.” Associated Gen. Contractors of Cal. v. 

California State Council of Carpenters, 459 U.S. 519, 526 (1983). 

Following Twombly and Iqbal, a well-pleaded complaint must contain more 

than mere legal labels and conclusions. Rather, it must recite factual allegations 

sufficient to raise the plaintiff’s claimed right to relief beyond the level of mere 

speculation. In practice, consideration of the legal sufficiency of a complaint 

entails a three-step analysis:

First, the court must ‘tak[e] note of the elements a plaintiff 

must plead to state a claim.’ Second, the court should identify 

allegations that, ‘because they are no more than conclusions, are 

not entitled to the assumption of truth.’ Finally, ‘where there 

are well-pleaded factual allegations, a court should assume their 

veracity and then determine whether they plausibly give rise to 

an entitlement for relief.’

Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 556 

U.S. at 675 & 679).

Case 4:16-cv-00206-MWB Document 12 Filed 07/11/16 Page 6 of 17
7

A complaint filed by a pro se litigant is to be liberally construed and 

‘“however inartfully pleaded, must be held to less stringent standards than formal 

pleadings drafted by lawyers.’” Erickson, 551 U.S. at 94 (quoting Estelle v. Gamble, 

429 U.S. 97, 106 (1976)). Nevertheless, “pro se litigants still must allege sufficient 

facts in their complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 

F.3d 239, 245 (3d Cir. 2013). Thus, a well-pleaded complaint must contain more 

than mere legal labels and conclusions. Rather, a pro se complaint must recite 

factual allegations that are sufficient to raise the plaintiff’s claimed right to relief 

beyond the level of mere speculation, set forth in a “short and plain” statement of a 

cause of action.

IV. Discussion.

Murchison brings his claim under both the Federal Tort Claims Act (FTCA)

and Bivens.

1

The complaint states a FTCA claim against the United States upon 

 

1

 See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388 (1971). In Bivens, the Supreme Court recognized a private cause of 

action to recover damages against a federal agent for violations of constitutional 

rights. 

Case 4:16-cv-00206-MWB Document 12 Filed 07/11/16 Page 7 of 17
8

which relief may be granted, but it fails to state any other claims upon which relief 

may be granted.

A. The United States is the Only Proper Defendant under the 

FTCA.

“The FTCA ‘was designed primarily to remove the sovereign immunity of the 

United States from suits in tort and, with certain specific exceptions, to render the 

Government liable in tort as a private individual would be under like 

circumstances.” Sosa v. Alvarez-Machain, 542 U.S. 692, 700 (2004) (quoting 

Richards v. United States, 369 U.S. 1, 6 (1962)). Federal district courts have 

jurisdiction over civil actions against the United States for damages “for injury or 

loss of property, or personal injury or death caused by the negligent or wrongful act 

or omission of any employee of the Government while acting within the scope of his 

office or employment, under circumstance 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.” 28 U.S.C. § 1346(b). The only proper defendant 

with respect to an FTCA claim is the United States. See 28 U.S.C. § 2679; Feaster v. 

Fed. Bureau of Prisons, 366 F. App’x 322, 323 (3d Cir. 2010) (“The only proper 

defendant in an FTCA suit is the United States itself.”). Moreover, constitutional 

Case 4:16-cv-00206-MWB Document 12 Filed 07/11/16 Page 8 of 17
9

tort claims cannot be brought under 28 U.S.C. § 1346(b). FDIC v. Meyer, 510 U.S. 

471, 477-78 (1994). 

The complaint states an FTCA claim upon which relief may be granted 

against the United States. The United States is the only proper defendant, however,

with respect to Murchison’s FTCA claim. Thus, to the extent that Murchison is 

attempting to bring FTCA claims against any of the other defendants, those claims 

fail.

B. Murchison Cannot Pursue Negligence Claims Against the Individual 

Defendants.

Murchison appears to be attempting to assert negligence claims against the 

individual defendants. But, except for constitutional claims or statutory claims, the 

FTCA is the exclusive remedy for the negligence or wrongful acts of federal 

employees acting within the scope of their employment. 28 U.S.C. § 2679(b) (1) 

provides that the remedy against the United States pursuant to the FTCA “for injury 

or loss of property, or personal injury or death arising or resulting from the negligent 

or wrongful act or omission of any employee of the Government while acting within 

the scope of his office or employment is exclusive of any other civil action or 

proceeding for money damages by reason of the same subject matter against the 

Case 4:16-cv-00206-MWB Document 12 Filed 07/11/16 Page 9 of 17
10

employee whose act or omission gave rise to the claim or against the estate of such 

employee.” Section 2679(b)(1) further provides that “[a]ny other civil action or 

proceeding for money damages arising out of or relating to the same subject matter 

against the employee or the employee’s estate is precluded without regard to when 

the act or omission occurred.” Because there are no allegations in the complaint 

that would lead to a reasonable inference that the defendants were not acting within 

the scope of their employment, Murchison may not pursue negligence claims against 

the individual defendants. Rather, Murchison’s remedy for any negligence on the 

part of prison staff is limited to his claim under the FTCA against the United States.

C. Murchison Cannot State Bivens Claims Against the United States or 

Against the Federal Officers in Their Official Capacities.

In contrast to FTCA actions, which must be brought against the United States, 

Bivens constitutional tort lawsuits can only be lodged against individual government 

officials. Indeed, it is well-settled that Bivens actions against the United 

States—and, by extension, against federal officials sued in their official 

capacity—are barred by sovereign immunity, absent an explicit waiver of that 

immunity. Meyer, 510 U.S. at 483; Huberty v. United States Ambassador to Costa

Rica, 316 F. App'x 120, 122 (3d Cir. 2008); Jaffee v. United States, 592 F.2d 712, 

Case 4:16-cv-00206-MWB Document 12 Filed 07/11/16 Page 10 of 17
11

717 (3d Cir. 1979); Bell v. Rossott, 227 F.Supp.2d 315, 320 (M.D. Pa. 2002)

(dismissing claim against individual federal defendants sued in their official 

capacity because the claims are essentially made against the United States). 

Applying these legal principles here, to the extent that Murchison is 

attempting to bring Bivens claims against the United States or against the other 

defendants in their official capacities, the attempt fails.

D. The Complaint Fails to State Bivens Claims Upon Which Relief May 

Be Granted Against the Federal Officers in their Individual Capacities.

As to the Bivens claims against the federal officers in their individual 

capacities, Murchison has not alleged facts from which it can reasonably be inferred 

that the federal officers were personally involved in a violation of his constitutional 

rights. Accordingly, the complaint fails to state Bivens claims against the officers 

in their individual capacities upon which relief may be granted.

Liability in a Bivens action is personal in nature, and to be liable, a defendant 

must have been personally involved in the wrongful conduct. In other words, 

defendants are “liable only for their own unconstitutional conduct.” Barkes v. First 

Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014), rev’d on other grounds sub nom. 

Taylor v. Barkes, 135 S.Ct. 2042 (2015). And so respondeat superior cannot form 

Case 4:16-cv-00206-MWB Document 12 Filed 07/11/16 Page 11 of 17
12

the basis of liability. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005). Thus, a 

constitutional deprivation cannot be premised merely on the fact that the defendant 

was a prison supervisor when the incidents set forth in the complaint occurred. See 

Alexander v. Forr, 297 F. App’x 102, 104-05 (3d Cir. 2008). “Because vicarious 

liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each 

Government-official defendant, through the official’s own individual actions, has 

violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). 

There are no allegations in the complaint regarding the named individual 

defendants’ involvement with Murchison’s medical care or the decision about when 

he was to be discharged from the hospital after the first surgery. Thus, the 

complaint fails to state a constitutional claim upon which relief may be granted 

against the federal officers in their individual capacities.

E. The Bivens Claim Against the Evangelical Community Hospital 

Fails.

Any constitutional claim against Evangelical Community Hospital fails for a 

different reason. “A Bivens action, which is the federal equivalent of the [42 

U.S.C.] §1983 cause of action against state actors, will lie where the defendant has 

violated the plaintiff’s rights under color of federal law.” Brown v. Philip Morris 

Case 4:16-cv-00206-MWB Document 12 Filed 07/11/16 Page 12 of 17
13

Inc., 250 F.3d 789, 800 (3d Cir. 2001). Murchison has not alleged any facts that 

could lead to a reasonable inference that Evangelical Community Hospital, a private

hospital, was acting under color of federal law, or under color of state law for that 

matter. Thus, he fails to state a constitutional claim upon which relief may be 

granted against Evangelical Community Hospital. 

F. Murchison’s Request for Preliminary Injunctive Relief Is Moot.

In his complaint, Murchison requests a preliminary injunction and/or a 

temporary restraining order. Murchison has not, however, filed a motion for either 

a preliminary injunction or a temporary restraining order. Nevertheless, given that 

Murchison is no longer incarcerated at USP Lewisburg, his request for injunctive 

relief regarding conditions at USP Lewisburg is moot.

Article III of the Constitution provides that the judicial power of the United 

States shall extend to “cases” and “controversies.” U.S. Constitution, art. III, '2. 

“[F]ederal courts may adjudicate only actual, ongoing cases or controversies,” Lewis 

v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990), and “[i]t is a basic principle of 

Article III that a justiciable case or controversy must remain ‘extant at all stages of 

review, not merely at the time the complaint is filed.’” United States v. Juvenile 

Case 4:16-cv-00206-MWB Document 12 Filed 07/11/16 Page 13 of 17
14

Male, 131 S. Ct. 2860, 2864 (2011) (quoting Arizonans for Official English v. 

Arizona, 520 U.S. 43, 67 (1997)). “Federal courts may not ‘decide questions that 

cannot affect the rights of litigants in the case before them’ or give ‘opinion[s] 

advising what the law would be upon a hypothetical state of facts.’” Chafin v. 

Chafin, 133 S. Ct. 1017, 1023 (2013) (quoting Lewis, 494 U.S. at 477). “A case 

becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of 

Article III—‘when the issues presented are no longer “live” or the parties lack a 

legally cognizable interest in the outcome.’” Already, LLC v. Nike, Inc., 133 S. Ct. 

721, 726-27 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982)). 

Generally, an inmate’s transfer from the facility complained of moots claims for 

equitable and declaratory relief. Sutton v. Rahseed, 323 F.3d 236, 248 (3d Cir. 

2003); Johnson v. Wenerowicz, 440 F. App’x. 60, 62 (3d Cir. 2011) (holding that the 

prisoner’s request for injunctive and declaratory relief against the named defendants 

was rendered moot by his transfer to another prison). 

Since Murchison is no longer at USP Lewisburg and there is no basis alleged 

to reasonably believe that he will again be incarcerated at USP Lewisburg in the 

foreseeable future, his claims for injunctive and declaratory relief relating to 

conditions and events at that institution are moot. 

Case 4:16-cv-00206-MWB Document 12 Filed 07/11/16 Page 14 of 17
15

To the extent that Murchison is attempting assert claims based on his medical 

care at “Butner #2,” we note that venue for any such claims is proper in North 

Carolina, not this court. And so any request for injunctive relief directed at “Butner 

#2” is not appropriate in this case.

G. Murchison Did Not File an Amended Complaint.

Before dismissing a complaint for failure to state a claim upon which relief 

may be granted under the screening provision of 28 U.S.C. ' 1915A, the court must 

grant the plaintiff leave to amend his complaint unless amendment would be 

inequitable or futile. See Grayson v. Mayview State Hospital, 293 F.3d 103, 114 (3d 

Cir. 2002). In light of the liberal-amendment requirement, we granted Murchison

leave to file an amended complaint to attempt, if appropriate, to state Bivens claims

against the individual officers in their individual capacities. We noted that if 

Murchison did not file an amended complaint, we would order that the original 

complaint be served on the United States, and, we would recommend that all claims 

except the FTCA claim against the United States be dismissed. The deadline for 

Murchison to file an amended complaint was May 31, 2016, and Murchison has not 

filed an amended complaint.

Case 4:16-cv-00206-MWB Document 12 Filed 07/11/16 Page 15 of 17
16

V. Recommendation.

Based on the foregoing, we recommend that all claims except the FTCA claim 

against the United States be dismissed and that case be remanded to the undersigned 

for further proceedings as to the FTCA claim.

2

The Parties are further placed on notice that pursuant to Local Rule 72.3:

Any party may object to a magistrate judge’s proposed 

findings, recommendations or report addressing a motion or 

matter described in 28 U.S.C. 636 (b)(1)(B) or making a 

recommendation for the disposition of a prisoner case or a 

habeas corpus petition within fourteen (14) days after being 

served with a copy thereof. Such party shall file with the clerk 

of court, and serve on the magistrate judge and all parties, written 

objections which shall specifically identify the portions of the 

proposed findings, recommendations or report to which 

objection is made and the basis for such objections. The 

briefing requirements set forth in Local Rule 72.2 shall apply. 

A judge shall make a de novo determination of those portions of 

the report or specified proposed findings or recommendations to 

which objection is made and may accept, reject, or modify, in 

whole or in part, the findings or recommendations made by the 

magistrate judge. The judge, however, need conduct a new 

hearing only in his or her discretion or where required by law, 

and may consider the record developed before the magistrate 

judge, making his or her own determination on the basis of that 

record. The judge may also receive further evidence, recall 

 

2 By a separate order, we have ordered that the complaint be served on the 

United States. 

Case 4:16-cv-00206-MWB Document 12 Filed 07/11/16 Page 16 of 17
17

witnesses or recommit the matter to the magistrate judge with 

instructions.

Submitted this 11th day of July, 2016.

S/Susan E. Schwab

Susan E. Schwab

United States Magistrate Judge

Case 4:16-cv-00206-MWB Document 12 Filed 07/11/16 Page 17 of 17