NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 16

- 1852

___________ AKINTOYE OMATSOLA LAOYE, Appellant

v. UNITED STATES OF AMERICA

_______________________ _____________ On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 3

- 14

- cv - 05195) District Judge: Honorable Michael A. Shipp

____________________________________ Submitted Pursuant to Third Circuit LAR 34. 1(a)

November 2, 2016 Before: AMBRO, KRAUSE and NYGAARD, Circuit Judges

( F iled : November 3, 2016 )

___________ OPINION *

___________ PER CURIAM Akintoye Laoye is a citizen of Nigeria who , at all times relevant to this case , was under electronic surveillance by th e Department of Homeland Security, Immigration and

* Th is disposition is not an opinion of the full C ourt and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

Customs Enforcement (ICE). In August 2014, Laoye filed a pro se complaint and motion for leave to proceed in forma pauperis (IFP) in the United States District Court for the District of New Jersey. In th e complaint, Laoye alleged that he had been unable to undergo corrective jaw surgery in February 2014 because ICE had failed to respond to his requests to remove his electronic monitoring bracelet for the surgery

. Laoye named the
United States as the sole defendant and sought relief under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671

- 2680. Laoye also claimed that “the agents of ICE . . . ignored his fundamental rights under the [C]onstitution.” (Compl. 2, ECF No. 1.) In support of th e complaint, Laoye attached a letter from a doctor stating that he
could not wear his bracelet during the surgery. Laoye also attached a copy of two complaint s addressed to the Office of Inspector General as evidence that he had complied
with the notice r equirements of 28 U.S.C. § 2675(a). Lastly, he attached a February 2014
letter from a social worker stating that he is being treated for a nxiety and Post

- traumatic
Stress Disorder.
The District Court granted Laoye’s request to proceed IFP and screened the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)

. 1 Upon review, the District Court determined that Laoye had failed to plead sufficient facts to state a claim under the
FTCA. See id. § 1915(e)(2)(B)(ii). Specifically , the c ourt noted that Laoye had failed to identify either the individual ICE agents who advised him or the dates on which they

1 The District Court initially denied Laoye’s request to proceed IFP and dismissed the complaint, but Laoye later submitted a new IFP appli cation and motion to reopen. The3

spoke , and had failed to set forth sufficient facts in support of his alleged injuries

. The

c ourt further n oted that “it [was] not clear” whether he had complie d with the FTCA’s notice requirement

. See 28 U.S.C. § 2675(a) ; 28 C

. F

. R

. § 14.2(a)

. The District Court then considered whether to afford Laoye a chance to cure the
deficiencies in his complaint , but concluded that amend ment would be futile

. See Grayso n v. Mayview State Hosp. , 293 F.3d 103, 11 3

- 1 4 (3d Cir. 2002) ( holding that a
district court should not dismiss an IFP complaint without granting leave to amend unless “amendment would be inequitable or futile”). In reaching this conclusion , the court

not ed that “ the crux ” of Laoye’s c omplaint was that his constitutional rights had been violated, and constitutional claims are not cognizable under the FTCA. (Mem. Op. 4, ECF No. 5 (citing FDIC v. Meyer , 510 U.S. 471, 477 (1994).) For this reason , the
Distr ict Court dismissed the complaint without providing Laoye an opportunity to amend
it . Laoye now appeals from the District Court’s order. 2
W hile w e agree with the District Court that Laoye’s initial pro se pleading was
i nsufficient , we cannot agree that Laoye could not include additional factual allegations ,

name more defendants, or introduce new causes of action to cure the deficiencies therein

. See Grayson , 293 F.3d at 11 3

- 1 4 ; Shane v. Fauver , 213 F.3d 113, 116 (3d Cir. 2000)

. For example, although t he District Court correctly noted that constitutional claims are not

District Court reopened the matter and granted the IFP application. 2 We have jurisdiction under 28 U.S.C. § 1291 and exercise plenary review of the District Court’s dismissal of Laoye’s complaint under § 1915(e)(2)(B). See Allah v. Seiverling , 229 F.3d 220, 223 (3d Cir. 2000).4

cognizable under the FTCA, we see no reason why Laoye should not have been permitted
to add individual defendants and facts to state a claim under Bivens v. Six Unknown Fed. Narcotics Age nts , 403 U.S. 388 (1971)

. Similarly, Laoye’s allegations, if supported by additional facts, might state a plausible negligence claim under the FTCA. See 28 U.S.C. § 1346(b)(1). Lastly, given that it was unclear from Laoye’s pleading whether he had compl ied with the FTCA’s notice requirements, he should be permitted to amend his complaint to address this concern. Accordingly, we will vacate the District Co urt’s judgment and remand this matter for further proceedings consistent with this opinion.