1

 The only proper defendant in an FTCA action is the United States of America. 

Allgeier v. United States, 909 F.2d 869, 871 (6th Cir. 1990) (“The FTCA clearly provides that

the United States is the only proper defendant in a suit alleging negligence by a federal

employee.”). 

1

 IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DUSTIN FOCKLER )

Plaintiffs )

)

v. ) C.A. No. 05-123 Erie

) District Judge McLaughlin

UNITED STATES MARSHAL SERVICE, ) Magistrate Judge Baxter

Defendant. )

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that Defendant’s motion to dismiss [Document # 8] be

granted.

It is further recommended that Plaintiff’s motion to amend complaint [Document # 14]

be denied as futile.

II. REPORT

A. Procedural History

On April 25, 2005, Plaintiff, a federal inmate incarcerated at FCI-McKean in Bradford,

Pennsylvania filed the instant action under the Federal Tort Claims Act. Plaintiff named the

United States Marshal Service as the sole Defendant.1 Plaintiff claims that during his transport

on aircraft leased by the U.S. Marshal Service, the aircraft experienced mechanical problems

causing emergency landings on two separate occasions. Plaintiff alleges that as a result of these

two experiences, he suffers from Post Traumatic Stress Disorder. As relief, Plaintiff seeks

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monetary damages in the amount of two million dollars.

Defendant has filed a motion to dismiss for lack of subject matter jurisdiction and for

failure to state a claim. In response to the pending motion, Plaintiff has filed a brief in

opposition, as well as a motion to amend the complaint to substitute the United States of

America as the sole defendant.

B. Standards of Review

1. Pro Se Litigants

Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent standards

than formal pleadings drafted by lawyers” and can only be dismissed for failure to state a claim

if it appears “<beyond a doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.’” Haines v. Kerner, 404 U.S. 519, 520-521(1972), quoting

Conley v. Gibson, 355 U.S. 41, 45-46 (1957). If the court can reasonably read pleadings to state

a valid claim on which the litigant could prevail, it should do so despite failure to cite proper

legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant’s

unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United

States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969)(petition prepared by a

prisoner may be inartfully drawn and should be read “with a measure of tolerance”); Smith v.

U.S. District Court, 956 F.2d 295 (D.C.Cir. 1992); Freeman v. Department of Corrections, 949

F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, during the initial stages of

litigation, a district court should construe all allegations in a complaint in favor of the

complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997). See, e.g., Nami v. Fauver, 82 F.3d

63, 65 (3d Cir. 1996)(discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land

Company, 906 F.2d 100, 103 (3d Cir. 1990)(same). Because Plaintiff is a pro se litigant, this

Court will consider facts and make inferences where it is appropriate. 

2. Motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1)

When a motion to dismiss is made under Federal Rule of Civil Procedure 12(b)(1) for

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lack of subject matter jurisdiction which attacks the as deficient on its face, the Court must take

all allegations in the complaints as true. Mortensen v. First Federal Sav. and Loan Ass’n., 549

F.2d 884, 891 (3d Cir. 1977). However, when the motion attacks the existence of subject matter

jurisdiction in fact, no presumptive truthfulness attaches to plaintiff’s allegations and the Court

may weigh the evidence to satisfy itself that subject matter jurisdiction exists in fact. Id. at 891. 

See also Carpet Group Intern. v. Oriental Rug Importers Ass’n, Inc., 227 F.3d 62, 69 (3d Cir.

2000); Poling v. K. Hovnanian Enterprises, 99 F.Supp.2d 502, 515 (D.N.J. 2000).

3. Motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6)

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) 

must be viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of

the complaint must be accepted as true. Neitzke v. Williams, 490 U.S. 319 (1989); Estelle v.

Gamble, 429 U.S. 97 (1976). The motion cannot be granted unless the court is satisfied “that no

relief could be granted under any set of facts that could be proved consistent with the

allegations.” Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). The issue is not whether the

plaintiff will prevail at the end but only whether he should be entitled to offer evidence to

support his claim. Neitzke; Scheuer v. Rhodes, 419 U.S. 232 (1974). Rule 8(a) of the Federal

Rules of Civil Procedure states that a pleading must set forth a claim for relief which contains a

short and plain statement of the claim showing that the pleader is entitled to relief. Therefore, in

order to survive a motion to dismiss for failure to state a claim, the complaint must set forth

sufficient information to suggest that there is some recognized legal theory upon which relief

can be granted.

C. The Federal Tort Claims Act (FTCA)

Defendant argues that any allegation of negligence involving an independent contractor

should be dismissed because the government cannot be held liable for such alleged negligence. 

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). 

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The terms of the government's consent define the federal court's jurisdiction over the case. 

Lehman v. Nakshian, 453 U.S. 156, 160 (1981). The Federal Tort Claims Act grants

jurisdiction to the federal courts to hear suits against the United States Government for torts

committed by its employees while in the scope of their employment. See 28 U.S.C. § 2675(a).

"A waiver of the Federal Government's sovereign immunity must be unequivocally expressed in

statutory text and will not be implied." Lane v. Pena, 518 U.S. 187, 192 (1996). 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) (citations omitted). 

The consent contained in the FTCA is limited and Congress has expressly provided for

exceptions to the FTCA's waiver of sovereign immunity. 28 U.S.C. § 2680(a)-(n); United States

v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808 (1984).

These exceptions are to be construed in favor of the sovereign. United States v. Nordic Village,

Inc., 503 U.S. 30, 32-36 (1992). The burden of establishing subject matter jurisdiction in this

case lies with the plaintiff. Robinson v. U.S., 849 F.Supp. 799, 801 (S.D.Ga.1994). The FTCA

covers only Government employees, who are defined by the Act as “officers or employees of

any federal agency ... and persons acting on behalf of a federal agency in an official capacity.” 

28 U.S.C. § 2671. The statute specifically provides that a federal agency does not include “any

contractor with the United States.” Id. This provision has been held to preclude liability for the

negligence of independent contractors. See Logue v. United States, 412 U.S. 521, 528 (1973);

Norman v. United States, 111 F.3d 356 (3d Cir. 1997); Woodruff v. Covington, 389 F.3d 1117,

1128 (10th Cir. 2004) (“the FTCA only waives the government's sovereign immunity for ‘federal

employees,’ and explicitly exempts ‘independent contractors...’”). Therefore, an FTCA claim

alleging negligence by an independent contractor must be dismissed for lack of subject matter

jurisdiction. 

The distinction between a federal employee and an independent contractor turns on

whether the entity’s day-to-day operations or activities are supervised by the federal government. 

In evaluating the nature of the relationship between the United States and the person, “the

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critical factor used to distinguish a federal agency employee from an independent contractor is

whether the government has the power ‘to control the detailed physical performance of the

contractor.’” Norman, 111 F.3d at 357, citing United States v. Orleans, 425 U.S. 807 (1976) and

Logue, 412 U.S. 521. In this regard, a review of the contract at issue is appropriate.

The U.S. Marshal Service entered into a signed agreement with CSI Aviation Service for

the lease and maintenance of jet passenger aircraft to transport individuals remanded to the

custody of the U.S. Marshal Service. Document # 9, Exhibit 2. According to the terms of the

document, CSI Aviation was given broad responsibility for the daily maintenance of the

aircrafts. Accordingly, CSI Aviation is an independent contractor and the government cannot be

held liable for its alleged negligence under the FTCA. 

Because the record provided by the government reflects that the U.S. Marshal Service

employed an independent contractor for transportation of federal prisoners and because Plaintiff

has filed no evidence to the contrary, this Court concludes that the FTCA’s waiver of sovereign

immunity does not apply to allegations of negligence in this action. Accordingly, this Court

lacks subject matter jurisdiction over the complaint and the motion to dismiss should be granted

in this regard.

D. Futility of Amendment

Plaintiff has filed a motion to amend his complaint seeking to substitute the United

States of America as the sole defendant in this case.

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

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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). However, as described above, the government cannot be

held liable for the alleged negligence of an independent contractor. Accordingly, the motion to

amend should be denied as futile.

III. CONCLUSION

It is respectfully recommended that Defendant’s motion to dismiss [Document # 8] be

granted.

It is further recommended that Plaintiff’s motion to amend complaint [Document # 14]

be denied as futile.

In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Local

Rule 72.1.4 B, the parties are allowed ten (10) days from the date of service to file written

objections to this report. Any party opposing the objections shall have seven (7) days from the

date of service of objections to respond thereto. Failure to timely file objections may constitute a

waiver of any appellate rights.

S/ Susan Paradise Baxter

SUSAN PARADISE BAXTER

Chief United States Magistrate Judge

Dated: March 20, 2006

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