GLD-154 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-4138

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RODERICK F. BAILEY,

Appellant

v.

U.S. MARSHALS SERVICE HEADQUARTERS; MR. RUSTIC, Warden

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 09-0349)

District Judge: Honorable Gary L. Lancaster

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Submitted on Appellant’s Motion to Reopen, Appellant’s Application to Proceed In 

Forma Pauperis, for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B), and for

Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

March 31, 2011

Before: AMBRO, CHAGARES and GREENBERG, Circuit Judges

(Opinion filed: April 8, 2011)

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OPINION

_________

PER CURIAM

Pro se appellant Roderick Bailey appeals the District Court’s orders granting the 

U.S. Marshals Service’s motion for summary judgment and Warden Rustic’s motion to 

dismiss. We have jurisdiction under 28 U.S.C. § 1291 and review the orders under a 
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plenary standard of review. See Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 

187, 190 (3d Cir. 2009) (motion to dismiss); State Auto Prop. & Cas. Ins. Co. v. Pro 

Design, P.C., 566 F.3d 86, 89 (3d Cir. 2009) (summary judgment). Because this appeal 

presents no substantial question, we will summarily affirm the District Court’s judgment. 

See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.1

In his complaint, Bailey alleged that while imprisoned in Allegheny County Jail 

(“the Jail”), he was attacked by a fellow inmate, Gerald Davis. According to Bailey, the 

Marshals Service, which apparently had arranged for Bailey to be held at Allegheny, and 

Rustic, the warden of the jail, were negligent in failing to protect him from the attack. 

Bailey sought money damages under the Federal Tort Claims Act (FTCA), 28 U.S.C. 

§§ 2671-2680.

The District Court assigned the case to a magistrate judge, and the Marshals 

Service filed a motion to dismiss or, in the alternative, for summary judgment. Bailey 

requested leave to amend the complaint, which the magistrate judge granted. However, 

Bailey then missed two deadlines the magistrate judge imposed for amendment. 

Ultimately, in lieu of filing an amended complaint, Bailey filed what appears to be a brief 

in opposition to the Marshals Service’s motion.

The magistrate judge then issued a report and recommendation concluding that 

Bailey’s action failed against the Marshals Service because it was not a proper defendant 

 

1 Bailey’s motion to reopen his appeal and motion to proceed in forma 

pauperis are GRANTED.
3

under the FTCA. The magistrate judge also noted that, while it had given Bailey several 

opportunities to amend his complaint, he had failed to do so. In any case, the magistrate 

judge stated, it would be futile for Bailey to amend his complaint to name the United 

States as a defendant. 

Soon thereafter, Rustic filed a motion to dismiss. While this motion was pending, 

and despite the terms of the magistrate judge’s report and recommendation, Bailey filed 

an amended complaint that added the United States as a party. The magistrate judge 

recommended that Rustic’s motion be granted; the District Court then approved and 

adopted both reports and recommendations and refused to allow Bailey to amend his 

complaint. Bailey appealed.

Most fundamentally, we agree with the District Court that Bailey’s claims against 

the Marshals Service and Rustic fail as a matter of law. It is well established that the 

United States is the only proper defendant in an action brought under the FTCA. See, 

e.g., McGuire v. Turnbo, 137 F.3d 321, 324 (5th Cir. 1998); Woods v. United States, 720 

F.2d 1451, 1452 n.1 (9th Cir. 1983). Indeed, Bailey does not seem to dispute this. 

We will also affirm the District Court’s order denying Bailey leave to amend his 

complaint. As an initial matter, the magistrate judge repeatedly invited Bailey to amend, 

and he repeatedly flouted the magistrate judge’s deadlines, without providing any 

explanation for his failure to comply. While he did eventually file an amended complaint 

after the magistrate judge had issued its report and recommendation, the District Court 

was not required to accept such a dilatory amendment. Cf. E. Minerals & Chems. Co. v. 
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Mahan, 225 F.3d 330, 340 (3d Cir. 2000); see also Murphy v. Eddie Murphy Prods., 611 

F.3d 322, 324 (7th Cir. 2010). 

We likewise agree with the District Court that it would have been futile for Bailey 

to amend his complaint to name the United States. The Marshals Service labeled its 

motion a “motion to dismiss or, in the alternative, for summary judgment,” and thus 

notified Bailey that the motion could be considered under Rule 56 of the Federal Rules of 

Civil Procedure. See Hilfirty v. Shipman, 91 F.3d 573, 579-80 (3d Cir. 1996). Bailey 

then had several months to amend his complaint, request discovery, or file an affidavit 

under Rule 56(f). He did none of these things and instead filed a brief in response that 

did not dispute the Marshals Service’s evidence but insisted that he was entitled to 

maintain his action because he had suffered a serious injury. In these circumstances, we 

perceive no error in the District Court’s decision to treat the Marshals Service’s motion as 

seeking summary judgment and to evaluate futility under a summary-judgment standard. 

See Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007) (“Leave to amend a 

complaint is futile when the complaint as amended would still be properly dismissed or 

be immediately subject to summary judgment for the defendant.”); Johnson v. Am.

Airlines, 834 F.2d 721, 724 (9th Cir. 1987). 

Under that standard, it would have been futile for Bailey to amend his complaint 

to name the United States. An action may be brought under the FTCA only if the alleged 

tortfeasor is an employee of the United States; suits against independent contractors are 

not viable. See Norman v. United States, 111 F.3d 356, 357 (3d Cir. 1997). The alleged 
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tortfeasor is deemed an employee of the United States, and not a contractor, if “the 

government has the power to control the detailed physical performance of the [actor].” 

Id. at 357 (internal quotation marks omitted).

Here, the Marshals Service proffered an “Intergovernmental Service Agreement 

Schedule,” which sets forth the terms of the relationship between the Marshals Service 

and the Jail, through which the Marshals Service would pay for the Jail to “provide 

custody, care, and safekeeping of federal prisons.” While the agreement requires the Jail 

to adhere to certain standards and permits the Marshals Service periodically to inspect the 

Jail’s operations, it does not empower the Marshals Service to supervise the day-to-day 

performance of Jail employees.2 Therefore, the Jail’s employees were contractors, and 

the United States could not be liable under the FTCA for their actions. See Logue v. 

United States, 412 U.S. 521, 530 (1973) (relying on similar agreement to conclude that 

jail employees were independent contractors under the FTCA). It would thus have been 

futile for Bailey to amend his complaint.

Finally, Bailey argues that the District Court should have reframed his action as 

arising under 42 U.S.C. § 1983 or Bivens v. Six Unknown Agents of Federal Bureau of 

Narcotics, 403 U.S. 388 (1971). He made this argument for the first time in his 

objections to the magistrate judge’s second report and recommendation, and thus may 

well have waived it. See Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996). Even 

 

2

Indeed, there seems to be no factual dispute as to this arrangement: Bailey 

has “acknowledge[d] that Defendant[’s] responsibility to the protection of Plaintiff are 

defined as stated within the Intergovernmental Service Agreement.” 
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assuming that the argument is not waived, we conclude that such a claim would be futile. 

To maintain an action under § 1983 or Bivens, Bailey must plead that the prison official 

acted with deliberate indifference to his health or safety. See, e.g., Farmer v. Brennan, 

511 U.S. 825, 838 (1994). Bailey has given no indication that he can sustain such a 

claim; to the contrary, his complaint repeatedly accuses the defendants of “negligence,” 

which is manifestly insufficient. See, e.g., County of Sacramento v. Lewis, 523 U.S. 833, 

849 (1998). 

We have thoroughly considered Bailey’s remaining arguments and find them 

meritless. Having granted his motions to reopen and to proceed in forma pauperis, see

supra note 1, we will therefore summarily affirm the District Court’s order granting 

summary judgment to all defendants. See 3d Cir. L.A.R. 27.4; I.O.P. 10.