NOT PRECEDENTIAL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

(Filed: 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 the Department of Homeland Security, Immigration and 

 

* This disposition is not an opinion of the full Court 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 the 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 the 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 

complaints addressed to the Office of Inspector General as evidence that he had complied

with the notice requirements 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 anxiety 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 court 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 application and motion to reopen. The 
3

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

court further noted that “it [was] not clear” whether he had complied 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 amendment would be futile. See

Grayson v. Mayview State Hosp., 293 F.3d 103, 113-14 (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 

noted that “the crux” of Laoye’s complaint 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 

District Court dismissed the complaint without providing Laoye an opportunity to amend 

it. Laoye now appeals from the District Court’s order.2

While we agree with the District Court that Laoye’s initial pro se pleading was 

insufficient, 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 113-14; Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000). 

For example, although the 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 Agents, 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 

complied with the FTCA’s notice requirements, he should be permitted to amend his 

complaint to address this concern. 

Accordingly, we will vacate the District Court’s judgment and remand this matter 

for further proceedings consistent with this opinion.