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 IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SADRICK DONALDSON, )

Plaintiff, )

v. ) C.A. No. 04-257 Erie

) District Judge McLaughlin

UNITED STATES OF AMERICA, ) Magistrate Judge Baxter

Defendant. )

MEMORANDUM ORDER

I. Procedural History

On September 13, 2004, Plaintiff Sadrick Donaldson, a federal inmate formerly

incarcerated at the Federal Correctional Institution at McKean, filed the instant action pursuant

to the Federal Tort Claims Act against the United States of America. In his complaint, Plaintiff

alleges that the government was negligent in that federal prison employees failed to protect him

from assault by a fellow inmate. 

This matter was assigned to United States District Judge Sean J. McLaughlin and was

referred to United States Magistrate Judge Susan Paradise Baxter for report and

recommendation in accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1), and Rules

72.1.3 and 72.1.4 of the Local Rules for Magistrates. 

On April 28, 2006, Magistrate Judge Baxter issued a Report and Recommendation

recommending that Defendant’s motion to dismiss or alternatively for summary judgment be

granted due to the lack of subject matter jurisdiction. 

In response to the Report and Recommendation, Plaintiff filed a motion to amend the

complaint on May 12, 2006. Document # 39.

Following a de novo review of the record, this Court makes the following findings and

adopts the Report and Recommendation of the Magistrate Judge as the opinion of this Court.

II. De Novo Review

In his complaint, Plaintiff alleges that on August 29, 2003, he was assaulted by another 

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inmate, Eric Drayton, with whom Plaintiff had a history. Plaintiff alleges that he repeatedly

complained to prison staff about harassment by Drayton and repeatedly sought protection from

him. Plaintiff claims that the attack was sexually motivated and that Drayton assaulted him by

pouring a “hot liquid chemical mixture in his face.” As a result of the incident, Plaintiff

suffered first and second degree chemical burns to his face, neck and shoulders.

In her Report and Recommendation, Magistrate Judge Baxter concluded that Plaintiff’s

FTCA claim against the United States was precluded by the discretionary function exception and

recommended that the matter be dismissed due to lack of subject matter jurisdiction. 

In his motion to amend, Plaintiff indicates that he is not objecting to the Report and

Recommendation, but now wishes to bring a claim against the United States Attorney General. 

Plaintiff does not specify his precise proposed cause of action against the Attorney General. 

Federal Rule of Civil Procedure 15(a) states that “leave [to amend] shall be freely given

when justice so requires.” Fed.R.Civ.P. 15(a). “In the absence of any apparent or declared

reason--such as undue delay, bad faith or dilatory motive on the part of the movant, repeated

failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing

party by virtue of allowance of the amendment, futility of amendment, etc.--the leave sought

should, as the rules require, be freely given.” Foman v. Davis, 371 U.S. 178, 182 (1962)

(interpreting Federal Rules of Civil Procedure). An amendment would be futile when the

complaint, as amended, would fail to state a claim upon which relief could be granted. In re

NAHC, Inc. Securities Litigation, 306 F.3d 1314, 1332 (3d Cir. 2002).

All actions brought pursuant to the FTCA must be brought against the United States of

America and not in the name of the allegedly negligent agency, entity or employee. 28 U.S.C.

§§ 2671-2680; 28 U.S.C. § 1346(b). Accordingly, Plaintiff cannot bring an FTCA claim against

the Attorney General because the proper party is the United States of America which will be

dismissed for lack of subject matter jurisdiction due to the discretionary function exception.

Because Plaintiff is a pro se litigant, the undersigned must construe all allegations

liberally. See Haines v. Kerner, 404 U.S. 519 (1972). To the extent that Plaintiff is attempting

to bring a Bivens claim against the Attorney General, such a claim is futile because §1983

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liability cannot be predicated solely on respondeat superior. Rizzo v. Goode, 423 U.S. 362

(1976) and Plaintiff makes no allegations that the Attorney General was personally involved in

the failure to protect him.

AND NOW, this 16th day of May, 2006;

IT IS HEREBY ORDERED that the Report and Recommendation by Magistrate Judge

Baxter is adopted as the opinion of this Court. 

In addition to the Report and Recommendation, IT IS FURTHER ORDERED that

Plaintiff’s motion to amend the complaint [Document # 39] is denied as futile.

S/ Sean J. McLaughlin

SEAN J. MCLAUGHLIN

UNITED STATES DISTRICT JUDGE

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