1

 IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DARRYL ORRIN BAKER, )

Plaintiff, )

)

v. ) C.A. No. 05-146 Erie

)

) District Judge McLaughlin

UNITED STATES OF AMERICA, et al., ) Magistrate Judge Baxter

Defendants. )

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that:

1. The individual Defendants’ motion to dismiss for lack of subject matter

jurisdiction [Document # 20] be granted; and

2. The United States’ motion to dismiss or, in the alternative, motion for

summary judgment [Document # 18] be granted.

By separate Order filed this day, the individual Defendants’ motion to strike Plaintiff’s

demands for punitive damages and trial by jury [Document # 22] will be dismissed as moot in

light of this Report and Recommendation. 

II. REPORT

A. Relevant Procedural History

Plaintiff, an inmate currently incarcerated at the Federal Correctional Institution at

Lisbon, Ohio, originally filed this pro se action in the United States District Court for the

Eastern District of Pennsylvania against the United States of America and “Government

Officials at FCI McKean,” pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. 

§§ 1346(b), 2671 et seq. The case was transferred to this judicial district on May 16, 2005, and

Plaintiff was subsequently granted leave to file an amended complaint on January 5, 2006. In

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Plaintiff was transferred to FCI-Loretto on or about June 30, 2000, and remained there until September 12, 2002, at

which time he was transferred back to FCI-McKean. Plaintiff was again transferred out of FCI-McKean on July 1,

2004, and has not returned since.

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his amended complaint, Plaintiff added as Defendants Robert Reome (incorrectly named as “Mr.

Rayome”), Ellen McNinch (incorrectly named as “Ellen McNinchs”), Lou Merillo, Warden

James Sherman, and Kathleen Hawk Sawyer (collectively referred to hereafter as “individual

Defendants”). In his amended complaint, Plaintiff alleges that the government was negligent in 

allowing him to be exposed to environmental tobacco smoke (“ETS”) at FCI-McKean from

October 9, 1995 to September 9, 2000, and again from August 2002 to July 1, 2004.1 Plaintiff

alleges that as a result of his prolonged exposure to ETS, he is at risk of developing a host of

diseases. In addition, Plaintiff alleges that “the Government Officials” retaliated against him by

denying him recreational privileges and transferring him to another correctional facility, after he

started to complain about medical symptoms caused by ETS. As relief, Plaintiff seeks fifteen

million dollars in compensatory and punitive damages. 

Presently before this Court is the individual Defendants’ motion to dismiss for lack of

subject matter jurisdiction [Document # 20], and the United States’ motion to dismiss or, in the

alternative, motion for summary judgment [Document # 18]. Plaintiff has filed an opposition

brief and the United States has filed a supplemental brief. This matter is now ripe for

disposition by this Court.

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

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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

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

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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.

4. Motion for Summary Judgment Pursuant to Fed.R.Civ.P. 56

The United States has submitted exhibits and a declaration in support of its motion to

dismiss. Therefore, this Court will convert the motion to dismiss pursuant to Federal Rule of

Civil Procedure 12(b)(6) to a motion for summary judgment pursuant to Federal Rule of Civil

Procedure 56. See Burns v. Harris County Bail Bond Bd., 139 F.3d 513, 517 (5th Cir.1998).

("When matters outside the pleadings are presented to and not excluded by the district court, the

district court must convert a motion to dismiss into a motion for summary judgment."); Greer v.

Smith, 2003 WL 1090708, *1 (3d Cir. (Pa.) March 10, 2003) (“the District Court considered

material outside of the pleadings and, therefore, should have converted the motion for dismissal

to a summary judgment motion, allowing the plaintiff an opportunity for appropriate discovery

and a reasonable opportunity to present all material made pertinent to the motion.”).

Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted

if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.” Rule 56(e) further provides that when

a motion for summary judgment is made and supported, “an adverse party may not rest upon the

mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by

affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is

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a genuine issue for trial. If the adverse party does not so respond, summary judgment, if

appropriate, shall be entered against the adverse party.” Id. 

A district court may grant summary judgment for the defendant when the plaintiff has

failed to present any genuine issues of material fact. See Fed.R.Civ.P. 56(c); Krouse v.

American Sterilizer Co., 126 F.3d 494, 500 n.2 (3d Cir. 1997). The moving party has the initial

burden of proving to the district court the absence of evidence supporting the non-moving

party’s claims. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Country Floors, Inc. v.

Partnership Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3d Cir. 1990). Further,

“[R]ule 56 enables a party contending that there is no genuine dispute as to a specific, essential

fact <to demand at least one sworn averment of that fact before the lengthy process of litigation

continues.’” Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) quoting

Lujan v. National Wildlife Federation, 497 U.S. 871 (1990). 

The burden then shifts to the non-movant to come forward with specific facts showing a

genuine issue for trial. Matsushita Elec. Indus. Co. v Zenith Radio Corp., 475 U.S. 574 (1986);

Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-461 (3d Cir. 1989)(the nonmovant must present affirmative evidence - more than a scintilla but less than a preponderance -

which supports each element of his claim to defeat a properly presented motion for summary

judgment). The non-moving party must go beyond the pleadings and show specific facts by

affidavit or by information contained in the filed documents (i.e., depositions, answers to

interrogatories and admissions) to meet his burden of proving elements essential to his claim. 

Celotex, 477 U.S. at 322; Country Floors, 930 F.2d at 1061.

A material fact is a fact whose resolution will affect the outcome of the case under

applicable law. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). Although the court

must resolve any doubts as to the existence of genuine issues of fact against the party moving for

summary judgment, Rule 56 “does not allow a party resisting the motion to rely merely upon

bare assertions, conclusory allegation or suspicions.” Firemen’s Ins. Co. of Newark, N.J. v.

DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). Summary judgment is only precluded if the

dispute about a material fact is “genuine,” i.e., if the evidence is such that a reasonable jury

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could return a verdict for the non-moving party. Anderson, 477 U.S. at 247-249. 

C. The Exhaustion Requirement of the Federal Tort Claims Act

The United States moves to dismiss a portion of the claims due to Plaintiff’s failure to

exhaust administratively in accordance with the FTCA. 

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 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). The terms of the government's consent define the

court's jurisdiction over the case. Lehman v. Nakshian, 453 U.S. 156, 160 (1981). 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 FTCA allows federal

inmates to sue the United States for injuries sustained while incarcerated. 28 U.S.C. § 2674. 

As a non-waivable prerequisite to the filing of the lawsuit, the FTCA specifically

requires an initial presentation of the claim to the appropriate federal agency and a final denial

by the agency. Id; See also Williams v. United States, 1995 WL 769497 (E.D.Pa. 1995). 

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) citing

Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 852-53 (10th Cir. 2005). 

Plaintiff’s administrative tort claim was submitted on January 23, 2004, and was

received by the Federal Bureau of Prisons (“BOP”) on January 30, 2004. In his tort claim,

Plaintiff complained of his exposure to environmental tobacco smoke from January 2003

through the date of his claim. (Document # 19, Exhibit 1b at pp. 2-3). By Memorandum issued

June 24, 2004, Plaintiff’s administrative tort claim was denied by the Northeast Regional

Counsel of the Federal Bureau of Prisons. (Document # 19, Exhibit 1c).

Plaintiff’s administrative tort claim only mentions Plaintiff’s exposure to ETS from

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January 2003 through January 23, 2004, thereby only providing notice of his complaint

regarding the exposure between those specific dates. Thus, the BOP was not properly notified

as to claims arising during any other time period. The only time period which has been

presented to the agency through the administrative review process is January 2003 through

January 2004. Because Plaintiff has failed to present the entirety of his claim to the agency in

accordance with the requirements of 28 U.S.C. § 2674, the claims involving the unexhausted

time periods cannot proceed. Summary judgment should be granted in favor of the United

States in this regard. 

Moreover, Plaintiff ‘s administrative tort claim makes no mention of retaliation and no

further administrative tort claims were filed by Plaintiff with regard to this issue. (Declaration of

Joyce Horikawa attached as Exhibit 1 to Document # 19 (“Horikawa Declaration”), at ¶ 4). 

Even if Plaintiff’s claim of retaliation were properly exhausted, it is well settled that claims for

damages arising from constitutional violations can only be brought against individual federal

defendants under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403

U.S. 388 (1971) and cannot be asserted against the United States or any of its components. See

FDIC v. Meyer, 510 U.S. 471, 485 (1994)(holding that a Bivens cause of action cannot be

brought against a federal agency). In Meyer, the Supreme Court recognized that an action for

damages may not be brought against the United States unless it waives its sovereign immunity. 

510 U.S. at 485. The only waiver exposing the United States to tort liability is the FTCA, which

does not apply to a constitutional claims such as the retaliation claim asserted by Plaintiff in this

case. As a result, Plaintiff’s retaliation claim against the United States should be dismissed.

D. Exhaustion Requirement - Bivens Claims

To the extent Plaintiff is claiming retaliation against the individual Defendants, he must

have exhausted his administrative remedies under the Prison Litigation Reform Act (“PLRA”),

42 U.S.C. § 1997e(a), which provides: 

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, prisons, or other correctional facility until such administrative

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remedies as are available are exhausted.

Id.

No analysis of exhaustion may be made absent an understanding of the administrative

process available to federal prisoners. The Bureau of Prisons has established a multi-tier system

whereby a federal prisoner may seek formal review of any aspect of his imprisonment. 28 C.F.R.

§§ 542.10-542.19 (1997). First, "an inmate shall ... present an issue of concern informally to

staff, and staff shall attempt to informally resolve the issue before an inmate submits a Request

for Administrative Remedy." 28 C.F.R. § 542.13(a). Second, if an inmate at an institution is

unable to informally resolve his complaint, he may file "a formal written Administrative

Remedy Request, on the appropriate form (BP-9), [within] 20 calendar days following the date

on which the basis for the Request occurred." 28 C.F.R. § 542.14(a). The warden has twenty

(20) days in which to respond. 28 C.F.R. § 542.18. An inmate who is not satisfied with the

warden's response may submit an appeal, on the appropriate form (BP-10), to the appropriate

Regional Director within twenty (20) calendar days from the date the warden signed the

response. 28 C.F.R. § 542.15(a). An inmate who is not satisfied with the Regional Director's

response may submit an appeal, on the appropriate form (BP-11), to the General Counsel within

thirty (30) calendar days from the date the Regional Director signed the response. Id. The

Regional Director has thirty (30) days and the General Counsel has forty (40) days to respond.

28 C.F.R. § 542.18.

The requirements that an inmate exhaust administrative remedies applies to all inmate

suits regarding prison life, including those that involve general circumstances as well as

particular episodes. Porter v. Nussle, 534 U.S. 516 (2002). See also Concepcion v. Morton, 306

F.3d 1347 (3d Cir. 2002) (for history of exhaustion requirement). Administrative exhaustion

must be completed prior to the filing of an action. McCarthy v. Madigan, 503 U.S. 140, 144

(1992). Thus, federal courts are barred from hearing a claim if a plaintiff has failed to exhaust

all the available remedies. Grimsley v. Rodriquez, 113 F.3d 1246 (Table), 1997 WL 2356136

(Unpublished Opinion) (10th Cir. May 8, 1997). However, a plaintiff’s failure to exhaust his

administrative remedies does not deprive the district court of subject matter jurisdiction. Nyhuis

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v. Reno, 204 F.3d 65, 69 n.4 (3d Cir. 2000) (“...[W]e agree with the clear majority of courts that

§ 1997e(a) is not a jurisdictional requirement, such that failure to comply with the section would

deprive federal courts of subject matter jurisdiction.”). 

A plaintiff need not affirmatively plead exhaustion, since exhaustion is an affirmative

defense which is waived if not properly presented by a defendant. Ray v. Kertes, 285 F.3d 287

(3d Cir. 2002) (holding that “no provision of the PLRA requires pleading exhaustion with

particularity,” while construing the PLRA requirements in light of the recent Supreme Court

decision in Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002)). 

The exhaustion requirement is not a technicality; rather, it is federal law which federal

district courts are required to follow. Nyhuis, 204 F.3d at 73 (by using language “no action shall

be brought,” Congress has “clearly required exhaustion”). There is no “futility” exception to the

administrative exhaustion requirement. Ahmed v. Dragovich, 297 F.3d 201, 206 (3d Cir. 2002)

citing Nyhuis, 204 F.3d at 78. There is, however, language in Nyhuis reflecting the Circuit’s

“understanding that compliance with the administrative remedy scheme will be satisfactory if it

is substantial.” Nyhuis, 204 F.3d at 77-78. The Third Circuit has not yet fully explored the

meaning of “substantial compliance”: “Whatever the parameters of ‘substantial compliance’

referred to [in Nyhuis], it does not encompass a second-step appeal five months late nor the

filing of a suit before administrative exhaustion, however late, has been completed.” Ahmed,

297 F.3d at 209.

Defendants assert that Plaintiff has failed to exhaust his administrative remedies on his

Bivens claim of retaliation. This assertion is supported by the Declaration of Joyce Horikawa,

Senior Attorney Advisor for the BOP’s Northeast Regional Office, who certifies that no

administrative grievance raising a claim of retaliation has ever been filed by Plaintiff. (See

Horikawa Declaration at ¶ 4). Plaintiff has provided no documentary evidence contradicting 

Ms. Horikawa’s Declaration. Therefore, Plaintiff’s Bivens claim of retaliation against the

individual Defendants is not properly before this Court and should be dismissed.

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E. Individual Defendants

In their motion to dismiss, the individual Defendants argue that Plaintiff cannot proceed

with his FTCA claims against them because they are not proper parties under the FTCA. The

Court agrees. Although the FTCA provides a limited waiver of sovereign immunity for certain

torts committed by federal employees, the United States is the only proper defendant in an action

brought under the FTCA. 28 U.S.C. § 2679; see, e.g., Good v. Ohio Edison Co., 149 F.3d 413,

418 (6th Cir. 1998); Kennedy v. United States Postal Serv., 145 F.3d 1077, 1078 (9th Cir. 1998);

Mars v. Hanberry, 752 F.2d 254, 255 (6th Cir. 1985). Thus, Plaintiff’s FTCA claims against the

individual Defemdants should be dismissed.

F. The Discretionary Function Exception to the FTCA

The United States moves to dismiss the remainder of Plaintiff’s FTCA claim because it

is excluded from the FTCA’s waiver of sovereign immunity by the discretionary function

exception.

While the FTCA generally grants jurisdiction to the tort plaintiff, there are some notable

exceptions to the Act that put certain actions by government employees beyond the jurisdiction

of the federal courts. One such exception that the government raises here is the discretionary

function exception. Complaints that fall within the discretionary function exception must be

dismissed for a lack of subject matter jurisdiction. Attallah v. United States, 955 F.2d 776, 783

(1st Cir. 1992).

The statute provides that the United States is immune from liability for any claim

“based upon an act or omission of an employee of the Government

exercising due care, in the execution of a statute or regulation ... or

based on the exercise or performance or the failure to exercise or

perform a discretionary function or duty on the part of a federal agency

or an employee of the Government, whether or not the discretion

involved be abused.” 

 28 U.S.C. § 2680 (a) (1988). The discretionary function exception to the FTCA “marks the

boundary between Congress’s willingness to impose tort liability upon the United States and its

desire to protect certain governmental activities from exposure to suit by private individuals.” 

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United States v. S.A. Empresa Biacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808

(1984). The purpose of the exception to liability is to avoid judicial second-guessing of

legislative and administrative decisions that are grounded in social, economic, and political

policies. United States v. Gaubert, 499 U.S. 315, 323 (1991).

 The Supreme Court has provided a two-part inquiry, frequently referred to as the

Berkovitz-Gaubert test, to guide the application of the discretionary function exception. 

Berkovitz v. United States, 486 U.S. 531 (1988); Gaubert, 499 U.S. at 322. First, a district

court must determine whether the nature of the conduct involves an “element of judgment or

choice.” Mitchell v. United States, 225 F.3d 361, 363 (3d Cir. 2000), citing Gaubert, 499 U.S.

at 322. “Government conduct does not involve an element of judgment or choice, and thus is

not discretionary, if a federal statute, regulation, or policy specifically prescribes a course of

action for an employee to follow, because the employee has no rightful option but to adhere to

the directive.” Ochran v. United States, 117 F.3d 495, 499 (11th Cir. 1997), citing Gaubert, 499

U.S. at 322. In other words, when the conduct is specifically mandated by statute or regulation

and does not provide any employee discretion, the challenged conduct is not entitled to

immunity and thus, subject matter jurisdiction exists. Second, “even if the challenged conduct

involves an element of judgment, the court must determine ‘whether the judgment is of the kind

that the discretionary function exception was designed to shield.’” Mitchell, 225 F.3d at 363,

quoting Gaubert, 499 U.S. at 322-23. The “focus of the inquiry is not on the agent’s subjective

intent in exercising the discretion conferred by the statute, but on the nature of the actions taken

and on whether they are susceptible to policy analysis.” Id.

The operation of a federal prison involves a wide range of social and economic

considerations, with social concerns and considerations that are markedly different from the

issues that arise in the operation of any other organization. Jones v. North Carolina Prisoners’

Labor Union, Inc., 433 U.S. 119, 129 (1977). Although the prison officials of the United States

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Title 18 U.S.C. § 4042(a)(2), (3) provides:

The Bureau of Prisons ... shall ... provide ... for the safekeeping, care and subsistence of all persons

charged with or convicted of offenses against the United States ... [and] provide for the protection ... of all

persons charged with or convicted of offenses against the United States.

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have a statutory duty2 to protect inmates from harm, generally decisions regarding the best way

to safeguard prisoners are discretionary in nature and do not provide subject matter jurisdiction

to the federal courts for negligence claims against the United States. See Castillo v. United

States, 2006 WL 45554 (3d Cir. January 10, 2006) (integration plan involving two rival gangs

which resulted in a melee within discretionary function exception); Cohen v. United States, 151

F.3d 1338, 1340-45 (11th Cir. 1998) (charge of negligence for improperly classifying assailant

inmate at the lowest security level within discretionary function exception); Dykstra v. United

States Bureau of Prisons, 140 F.3d 791, 795-97 (8th Cir. 1998) (charges of negligence for failing

to warn inmate that his youthful appearance made him vulnerable to sexual attack and failure to

act on plaintiff’s complaint that other inmate was staring at him in a sexual manner within the

discretionary function exception); Calderon v. United States, 123 F.3d 947, 948-51 (7th Cir.

1997) (charge of negligence for ignoring repeated information about threats against plaintiff by

another inmate prior to attack within discretionary function exception); and Buchanan v. United

States, 915 F.2d 969 (5th Cir. 1990) (discretionary function exception applied to prisoners’

FTCA claim for damages sustained while prisoners were held hostage by Cuban detainees

during a prison uprising). 

With respect to the use of tobacco products, Bureau of Prisons staff are directed by

regulation which provides that “all areas of Bureau of Prisons facilities [...] are no smoking areas

unless specifically designated as a smoking area by the Warden as set forth in § 551.163.” 28

C.F.R. § 551.162. Section 551.163 provides that the Warden make determinations regarding the

use of tobacco products:

... the Warden shall identify outdoor smoking areas and may, but is not

required to, designate a limited number of indoor smoking areas where the

needs of effective operation so require, especially for those who may be

employed in, or restricted to, a nonsmoking area for an extended period of time.

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* * * 

To the maximum extent practicable, nonsmoking inmates shall be housed in

nonsmoking living quarters.

28 C.F.R. § 551.163(b) and (c) (emphasis added). Pursuant to this regulation, the Warden at

FCI-McKean instituted a policy on June 21, 2002, which, in pertinent part, provides as follows:

Housing Units: Smoking is only permitted in inmate rooms as

designated by the Unit manager of each unit. In the event that the

inmate room is assigned to one inmate smoker and one non-smoker, the

room will be designated a non-smoking room. There is no smoking in

the common areas, other multi-purpose areas, or entrance-ways of the

housing units.

(Institution Supplement attached as Exhibit 1 to Document # 19, at ¶ 3b(2)(a))

(emphasis added).

According to this policy, the Unit manager of each unit was granted the discretion to allow

smoking in inmate rooms within his or her unit. 

The record in this case shows that the Unit manager designated the upper range cells at

FCI-McKean for inmates who smoked. (See Document # 24, attachment 1 and Document # 19,

Exhibit 7). Nevertheless, Plaintiff, a non-smoker, has alleged that he was housed in an upper

range cell at FCI-McKean “for 7 years with a smoker that smoked 4 to 5 packs a day...”

(Document # 24 at p. 14). This occurred despite the Warden’s policy directive that an inmate

room housing both a smoker and a non-smoker will be designated a non-smoking room. This

directive is non-discretionary, yet was not followed by the Unit manager. As a result, the first

prong of the Berkovitz-Gaubert inquiry has not been satisfied and the discretionary function

exception to the FTCA’s waiver of sovereign immunity does not apply.

G. Actual Injury

In its supplemental brief, the United States argues that all of Plaintiff’s claims should be

dismissed because he cannot demonstrate that he suffered any ETS-related injury during the

relevant time period from January 2003 through January 30, 2004. (Document # 25 at p. 2). 

This claim is supported by the medical record in this case, which demonstrates that the only

medical treatment Plaintiff received during the time period at issue was for a scalp infection, and

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This medical record belies Plaintiff’s claim that “due to his exposure to environmental tobacco smoke ‘ETS,’

plaintiff’s current and future ailments include, but are not limited to, Lung Cancer, Cardiovascular Diseases, Acute

Respiratory Diseases, Emphysema, Bronchitis, Asthma, Shortness of Breath, Exhaustion, Diabetic Diseases,

leukemia, Peptic Ulcers, Dizziness, Tuberculosis, Chronic Headaches, Watery Infections, Ear Infections, Memory

Loss, Depression, Allergies, Inability to Eat, Chest Pains, Difficulty Breathing, Numbness in my Limbs, Teary Eyes,

Itching, ...” (Document # 18, Amended Complaint, at p. 9).

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for inflammation and bleeding on the skin of his hand. (See Declaration of A. Bussanich, M.D.,

attached as Exhibit 2 to Document # 25, at ¶¶ 2a-2h).3 

Under Pennsylvania law, no cause of action for personal injury arises until there has been

an actual injury. See, e.g., Openbrier v. General Mills, 340 Pa. 167, 169 (1940); Emert v.

Larami Corp., 414 Pa. 396 (1964). Indeed, “[a] basic tenet of tort law is that the plaintiff cannot

recover without proof of actual injury or damage.” Peterman v. Techallov Company, Inc., 1982

WL 124 (Pa.Com.Pl. 1982), citing Troutman v. Tabb, 285 Pa. Super. 353, 359 (1981)(“We are

also guided by the rule that in a negligence action proof of damage is an essential element. 

Nominal damages cannot be recovered where no actual loss has occurred”). “When a plaintiff

fails to establish damage in a tort action, the defendant is entitled to a verdict although guilty of

negligence.” Sisk v. Duffy, 201 Pa.Super. 213, 216 (1963); Troutman, 285 Pa.Super. At 359. 

Thus, a tort claim action cannot be sustained on the basis of speculative future injuries. See

Peterman, 1982 WL at * 3.

Here, while Plaintiff claims to have suffered a plethora of “current and future ailments,”

the medical record plainly reveals that all such ailments are purely speculative in nature. As a

result, Plaintiff’s negligence claims against the United States should be dismissed. 

III. CONCLUSION

For the foregoing reasons, this Court respectfully recommends that: 

1. The individual Defendants’ motion to dismiss for lack of subject matter

jurisdiction [Document # 20] be granted; and

2. The United States’ motion to dismiss or, in the alternative, motion for

summary judgment [Document # 18] be granted.

By separate Order filed this day, the individual Defendants’ motion to strike Plaintiff’s

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demands for punitive damages and trial by jury [Document # 22] will be dismissed as moot in

light of this Report and Recommendation. 

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: June 14, 2006

Case 1:05-cv-00146-SJM-SPB Document 26 Filed 06/14/06 Page 15 of 15