1

 IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DARRYL ORRIN BAKER )

Plaintiff )

)

)

v. ) C.A. No. 05-147 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 Defendants’ motion to dismiss or for summary

judgment [Document # 40] be granted in part and dismissed without prejudice in part. 

Specifically:

1) The motion to dismiss as to the retaliation claim should be granted as this

Court lacks subject matter jurisdiction over this claim.

2) The motion to dismiss should be granted as to Defendants FCI-McKean,

Warden, Officer Wesemen, and the Medical Department as they are

improper parties under the FTCA. The Clerk of Courts should be directed

to terminate these parties from this case.

3) The motion to dismiss should be granted as to the failure to protect claim

as this Court lacks subject matter jurisdiction over it under the

discretionary function exception to the FTCA.

4) The motion for summary judgment as to the medical negligence claim

should be dismissed without prejudice.

5) The motion to dismiss should be granted as to the Plaintiff’s request for

punitive damages and Plaintiff’s demand for a jury trial. 

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 It is clear to this Court from a review of the original, as well as the first and second

amended complaints, that Plaintiff is bringing his claims pursuant to the Federal Tort Claims

Act only.

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II. REPORT

A. Procedural History

On May 16, 2005, Plaintiff, a federal inmate formerly incarcerated at FCI-McKean in

Bradford, Pennsylvania, filed the instant action under the Federal Tort Claims Act1. Named as

Defendants are: the United States of America, FCI-McKean, Warden, Officer Wesemen and the 

Medical Department. Plaintiff claims that Defendants negligently failed to protect him from

assault by other inmates, that following the assault he received negligent medical care, and

following the filing of a grievance, he was retaliated against. 

Defendants have filed a motion to dismiss or in the alternative for summary judgment,

along with a supporting brief. Documents # 39 and 40. In response to the pending motion,

Plaintiff has filed an Opposition Brief. Document # 42.

B. Statement of the Case

Plaintiff alleges that on February 27, 2004, he was assaulted by two other inmates at FCI

McKean. Plaintiff alleges that following the discovery of the injuries by prison staff two days

later, Plaintiff was taken to the treating physician’s assistant who denied him medical attention

and medication for pain. Plaintiff also alleges that he was denied an examination by an eye

specialist. Thereafter, Plaintiff alleges that he was placed in the Special Housing Unit and

denied any further medical attention.

Plaintiff alleges that as a result of the negligence, he suffers from the following: 1) his

left eye will not look up as far as the right eye; 2) scarring on the floor of the orbit with possible 

adhesions to the inferior rectus muscle; 3) orbital floor fracture; 4) orbital floor fracture with 

entrapment; 5) blow-out fracture; 6) he cannot look up with is left eye without experiencing

diplopia; 7) his left eye is off-centered; 8) he has pain in his left eye when he moves to the right

and left, and 9) numbness in the left side of his face. Plaintiff seeks millions of dollars in

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compensatory and punitive damages.

C. 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

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

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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.

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

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

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

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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

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

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 This Court notes that, according to the Horikawa Declaration, Plaintiff did not exhaust

his administrative remedies under the Prison Litigation Reform Act as well in the event that

Plaintiff intended to bring a retaliation claim under Bivens v. Six Unknown Named Federal

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

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D. Retaliation 

In his second amended complaint, Plaintiff alleges that he was retaliated against after he

filed his tort claim. Plaintiff claims that he was transferred from FCI-McKean and suffered

further retaliation at the FCI-Elkton.

The Federal Tort Claims Act (FTCA) specifically requires an initial presentation of the

claim to the appropriate federal agency and a final denial by the agency as a non-waivable

prerequisite to the filing of the lawsuit. 28 U.S.C. § 2675(a); See also Williams v. United

States, 1995 WL 769497 (E.D.Pa. 1995) citing Bradley v. United States, 856 F.2d 575 (3d Cir.

1988), vacated on other grounds, 490 U.S. 1002 (1989). The FTCA provides:

An action shall not be instituted upon a claim against the United States for money

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 of employment, unless the claimant shall

have first presented the claim to the appropriate Federal agency and his claim

shall have been finally denied by the agency in writing. 

28 U.S.C. § 2675(a). 

In support of its argument that Plaintiff has not exhausted his retaliation claim, the

United States has provided the sworn Declaration of Senior Attorney Advisor Joyce Horikawa

of the United States Department of Justice, Federal Bureau of Prisons. Ms. Horikawa swears

that no administrative tort claim has been filed by Plaintiff regarding a retaliation claim. 

Document # 39, Exhibit 1, pages 3-4. In his Opposition Brief, Plaintiff does not make any

factual argument to the contrary and it is his burden to do so. See Document # 42, pages 8 - 11.

Accordingly, the motion to dismiss as to the retaliation claim should be granted as this

Court lacks subject matter jurisdiction over this claim.2

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E. Sovereign Immunity

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 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 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 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 lies with

the plaintiff. Robinson v. U.S., 849 F.Supp. 799, 801 (S.D.Ga.1994).

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). Therefore, FCI-McKean, Warden, Officer Wesemen and

the Medical Department should be dismissed from this action as the only proper party to an

FTCA action is the United States of America.

F. The Discretionary Function Exception to the FTCA

The United States moves to dismiss Plaintiff’s failure to protect claim because it is

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

exception.

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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. Specifically, the United States is immune from liability for any act or

omission “based upon 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.” Varig Airlines, 467 U.S.

at 808. 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).

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 Supreme Court has provided a two-part inquiry to guide the application of the discretionary

function exception. 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-

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

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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.

Although the Third Circuit has not directly spoken on this issue, numerous district

courts, including this one, have found that as a result of the discretionary function exception, the

United States is not liable under the FTCA for failing to protect a federal inmate from an attack

by another prisoner. Donaldson v. U.S., 2006 WL 1371090 (W.D. Pa. May 17, 2006); Redmond

v. United States of America, 2006 WL 709347 (M.D.Pa. March 20, 2006); Graham v. U.S.,

2002 WL 188573 (E.D.Pa. Feb 05, 2002), affirmed without opinion by Graham v. U.S., 47

Fed.Appx. 198, 2002 WL 31207712 (3d Cir. 2002) (Table) (“It may be tragically unwise for

Allenwood prison officials to allow inmates access to razor blades or foolish for them to allow

inmates to view violent films. But these choices are within the discretion that Congress has

committed solely to prison officials.”). See also Cohen v. United States, 151 F.3d 1338, 1340-

45 (11th Cir. 1998), cert. denied, 526 U.S. 1130 (1999) (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). 

Although the prison officials of the United States have a statutory duty3 to protect

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

subsistence of all persons charges 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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inmates from harm, decisions regarding the best way to safeguard prisoners and the safety of the

institution are discretionary in nature and do not provide subject matter jurisdiction to this Court

for negligence claims against the United States. The government’s motion to dismiss pursuant

to Federal Rules of Civil Procedure 12(b)(1) should be granted as to Plaintiff’s failure to protect

claim as this Court lacks subject matter jurisdiction over it.

G. Medical Negligence Claim

In an FTCA action, the district court applies the law of the state in which the act

occurred. See 28 U.S.C. § 1346(b); Castillo v. U.S., 2002 WL 1752235, at *3 (7th Cir. 2002).

In the Commonwealth of Pennsylvania in order to establish a cause of action in negligence,

plaintiffs bear the burden of demonstrating that there was a duty or obligation recognized by

law, breach of that duty by the defendants, a causal connection between the defendants' breach

of that duty and the resulting injury, and actual loss or damage suffered by the complainants. 

Corrigan v. Methodist Hosp., 2002 WL 31492261, at *7 (E.D.Pa. Nov 07, 2002). 

Generally, under the law of this Commonwealth, a plaintiff must offer an expert witness

who will testify to a reasonable degree of medical certainty that the acts of the physician

deviated from good and acceptable medical standards, and that such deviation was the proximate

cause of the harm suffered. Rauch v. Mike-Meyer, 783 A.2d 815, 824 (Pa. Super. 2001). 

Because Plaintiff is an incarcerated pro se litigant, he has no opportunity to offer an

expert witness in opposition to the pending motion for summary judgment. In the interests of

fairness and because this court is bound by the dictates of Haines v. Kerner and its progeny, this

Court will seek counsel to represent Plaintiff. The government’s motion for summary judgment

should be dismissed without prejudice at this stage of the proceedings.

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 The medical negligence claim against the United States should be the only claim

remaining in this case.

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H. Punitive Damages and Request for Jury Trial

Plaintiff’s demand for punitive damages as well as his request for trial by jury are

precluded by the FTCA. 28 U.S.C. § 2674 (“the United States ... shall not be liable ... for

punitive damages.”); 28 U.S.C. § 2402. Therefore, both should be dismissed. 

III. CONCLUSION

It is respectfully recommended that:

1) The motion to dismiss as to the retaliation claim should be granted as this

Court lacks subject matter jurisdiction over this claim.

2) The motion to dismiss should be granted as to Defendants FCI-McKean,

Warden, Officer Wesemen, and the Medical Department as they are

improper parties under the FTCA. The Clerk of Courts should be directed

to terminate these parties from this case.

3) The motion to dismiss should be granted as to the failure to protect claim

as this Court lacks subject matter jurisdiction over it under the

discretionary function exception to the FTCA.

4) The motion for summary judgment as to the medical negligence claim

should be dismissed without prejudice.4

5) The motion to dismiss should be granted as to the Plaintiff’s request for

punitive damages and Plaintiff’s demand for a jury trial. 

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.

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S/ Susan Paradise Baxter

SUSAN PARADISE BAXTER

Chief United States Magistrate Judge

Dated: October 26, 2006

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