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- 218 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 14

- 3077

___________ KENNETH MURCHISON,

Appellant v. WARDEN LEWISBURG USP; UNKNOWN MEMBERS OF THE SORT TEA M; PHYSICIANS ASSISTANT POTTER; DR. PIGOS; LT. SEBA; WARDEN THOMAS; LT. SHERMAN, Correction Officer; COUNSELOR METZGER; EMT MCCLINTOC

____________________________________ On Appeal from the United States District Court for the Middle District of Penns ylvania (D.C. Civil No. 3

- 11

- cv - 02285 ) District Judge: Honorable Matthew W. Brann

____________________________________ Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 May 28, 2015 Before: AMBRO, JORDAN and KRAUSE , Circuit Judges

(Opinion filed : June 5, 2015 )

_________ OPINION *

_________ PER CURIAM

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

Kenneth Murchison , an inmate proceeding pro se, appeals the District Court’s judgment dismissing the only claim remaining in his civil rights lawsuit and denying him leave to amend

. We will affirm. As we write primarily for the parties , who are familiar with this case, we need not recite the entire procedural or factual background. Murchison ’s operative complaint alleged causes of action “under the Federal Tort Claims Act” and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics , 403 U.S. 388 (1971), stemming from two incidents. In the first, Murchison alleged that prison staff sexually assaulted,
tortured , and then intentionally injured him by binding him too tightly in restraints , which
resulted in restricted blood flow . He also alleged that, while he was restrained, prison
staff “forcefully [and] willfully stabb[ed ] him with a diabetic lancet

. ” And in connec tion
with the first incident , Murchison alleged that prison staff retaliated against him by illegally reducing his pain medication. I n the second incident, Murchison alleged that prison staff , intentiona lly and with an intent to injure him, restrained him in a way that cut off blood circulation, and caused nerve damage, bruising, and scarring. Murchison
claimed th at these incidents violated his rights under the First and Eighth Amendments. The Magistrate Judge screened Murchison’s compla int as is require d under 28 U.S.C. § 1915A. The Magistrate Judge recommended dismissing any claim under the FTCA because Murchison did not name the United States as a defendant and, in addition, he only alleged constitutional tort claims. T he Magistrate Judge recommended3

dismissing the remaining claims, under Bivens , because Murchison failed to exhaust
them

. Murchison moved to amend his complaint to name the United States as a defendant. Without ruling on the motion, t he District Court adopted the Magistrate Judge’s r ecommendation and entered judgment against Murchison

. We affirmed the
dismissal of the constitutional claim s . However, because the District Court did not address Murchison’s motion to amend his complaint, we vacated in part and remanded to the District C ourt to grant Murchison leave to amend his FTCA claim unless the District Court found that amendment would be inequitable or futile. Murchison v. Warden Lewisburg USP , 566 F. App’x 147, 150 (3d Cir. 2014) On remand, the District Court determined that ame ndment would be futile because, while this case was pending on appeal, Murchison filed another complaint in which he alleged an FTCA claim that names the United States as a defendant for the
same torts. Moreover, Murchison’s complaint in this case alleg ed only constitutional tort claims, which are not cognizable under the FTCA. Accordingly, the District Court entered judgment against Murchison.
Murc h ison appealed. We have jurisdiction over his appeal pursuant to 28 U.S.C. § 1291 . We review for an abu se of discretion the District Court’s decision to deny Murchison an opportunity to amend his complaint

. See Lake v. Arnold , 232 F.3d 360,
373 (3d Cir. 2000). We may summarily affirm if the appeal presents no substantial questions. See 3d Cir. L.A.R. 27. 4; I.O.P. 10.6.4

T he District Court did not abuse its discretion in denyi ng as futile leave to amend Murchison’s FTCA claim

. Even if , as Murchison requested, the District Court permitted him to file a new complaint naming the proper defendant, his clai ms are only for
constitutional torts

— namely, violations of his First and Eighth Amendment rights

— which 

### are not cognizable under the FTCA. See Couden v. Duffy , 446 F.3d 483, 199 (3d Cir. 2006). Moreover, even if Murchison’s claims were framed in state tor t law , and

not as constitutional torts , his claims would not be cognizable under the FTCA because
h e allege d intentional torts only ; and intentional torts are not cognizable under the FTCA. 28 U.S.C. § 2680(h); see also Levin v. United States , 133 S.Ct. 1 224, 1228 (2013). In other words, amendment would have been futile because Murchison’s amended complaint would fail to state a claim under the FTCA. See In re Burlington Coat Factory Sec. Litig. , 11 4 F.3d 1410, 1434 (3d Cir. 1997) (defining futility )

. A ccordingly, we will
affirm the judgment of the District Court. Furthermore, we deny Murchison’s request “ to

re - asses [sic] and reconsider his changed or morfed [sic] financial obligations

. ”