UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

_______________________________

 :

SHAHID ABDUL-MATEEN, :

 : Civil Action No. 

Plaintiff, : 11-4715 (NLH)

 :

v. : 

 :

FEDERAL BUREAU :

OF PRISONS et al., :

 : MEMORANDUM OPINION AND ORDER

Defendants. :

_______________________________: 

IT APPEARING THAT:

1. Initially, Plaintiff submitted for filing a civil complaint

(“Complaint”) unaccompanied by his filing fee or an in forma

pauperis application. See Docket Entry No. 1.

2. The Court, thus, denied Plaintiff in forma pauperis status

without prejudice. See Docket Entry No. 4.

3. In response, Plaintiff submitted his duly executed in forma

pauperis form. See Docket Entry No. 5.

4. The Court, therefore, will grant Plaintiff in forma pauperis

status and orders the Clerk to file the Complaint. At this

juncture, the Court is obligated, under § 1915(e)(2), to

screen the Complaint and dismiss those claims that are

frivolous, malicious, fail to state a claim, or seek

monetary relief from a defendant immune from such relief. 

5. In determining the sufficiency of a pro se complaint, the

Court must be mindful to construe it liberally in favor of

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Plaintiff. See Haines v. Kerner, 404 U.S. 519, 520-21

(1972); United States v. Day, 969 F.2d 39, 42 (3d Cir.

1992). The legal standard for dismissing a complaint for

failure to state a claim pursuant to § 1915(e)(2)(B) is

identical to the legal standard used when ruling on Fed. R.

Civ. P. 12(b)(6) motions. See Courteau v. United States,

287 F. App'x 159, 162 (3d Cir. 2008)); Allah v. Seiverling,

229 F.3d 220, 223 (3d Cir. 2000); Tourscher v. McCullough,

184 F.3d 236, 240 (3d Cir. 1999) (applying Fed. R. Civ. P.

12(b)(6) standard to dismissal for failure to state a claim

under § 1915(e)(2)(B)). The Court, thus, must accept all

factual allegations in a complaint as true and take them in

the light most favorable to Plaintiff. See Phillips v.

County of Allegheny, 515 F.3d 224, 229 (3d Cir.2008); accord

Erickson v. Pardus, 551 U.S. 89, 93 (2007). However, to

survive dismissal, the Complaint must contain sufficient

factual matter which plausibly alleges all required elements

of a cause of action. See Ashcroft v. Iqbal, 556 U.S. 662

(2009) (relying on Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 570 (2007)). 

6. Here, Plaintiff asserted claims under the Federal Tort

Claims Act (“FTCA”). The FTCA, codified in multiple 1

 The Complaint, in addition to asserting FTCA claims, 1

includes references to Bivens (a federal counterpart to Section

1983) and the New Jersey Tort Claim Act (“NJTCA”). However: (1)

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sections of Title 28, “operates as a limited waiver of the

United States's sovereign immunity.” White-Squire v. U.S.

Postal Service, 592 F.3d 453, 456 (3d Cir. 2010). Broadly

speaking, under the Act, the United States is liable “in the

same manner and to the same extent as a private individual

under like circumstances.” 28 U.S.C. § 2674. An FTCA

plaintiff may sue only the United States, may seek only

monetary damages, and may not recover for mental or

emotional damages in the absence of physical injury. See 28

U.S.C. § 1346(b)(providing jurisdiction for “civil actions

on claims against the United States, for money damages” and

providing that incarcerated felons may not bring actions

“for mental or emotional injury suffered while in custody

without a prior showing of physical injury”); CNA v. United

States, 535 F.3d 132, 138 n. 2 (3d Cir. 2008) (“The

Government is the only proper defendant in a case brought

under the FTCA”); Robinson v. Sherrod, 631 F.3d 839, 841

(7th Cir. 2011) (holding that the FTCA does not provide for

equitable relief). Federal constitutional violations are

not cognizable under the FTCA. See FDIC v. Meyer, 510 U.S.

471, 477-78 (1994). Rather, the violations cognizable under

Plaintiff’s negligence-based claims are not cognizable in a

Bivens constitutional action; and (2) the NJTCA has no relevance

to Plaintiff’s claims since they rely on events which involved

only federal – rather than state - actors.

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the FTCA could be broadly qualified as federal counterparts

of a tort claim recognized by common law. 

7. A plaintiff suing under the Act must present the Government

with notice of the claim, including a “sum certain” demand

for monetary damages. See White-Squire, 592 F.3d at 457. 

Indeed, an FTCA action “shall not be instituted for any sum

in excess of the amount of the claim presented to the

federal agency.” See § 2675(b). Moreover, “the FTCA

clearly bars recovery of punitive damages against the U.S.” 

Michtavi v. United States, 2008 U.S. Dist. LEXIS 107897

(M.D. Pa. Oct. 14, 2008) (citing 28 U.S.C. § 2674 (“The

United States . . . shall not be liable for interest prior

to judgment or for punitive damages”).

8. Under New Jersey law, a negligence claim requires a

plaintiff to establish: (1) that the defendant owed the

plaintiff a particular duty relevant to the alleged injury;

(2) that defendant somehow breached that duty; and (3) that

the defendant's breach proximately caused the alleged

injury. See Keith v. Truck Stops Corp. of Am., 909 F.2d

743, 745 (3d Cir. 1990). In determining whether a duty

exists, the Supreme Court of New Jersey applies a two-step

analysis. See Olivo v. Owens-Illinois, Inc., 186 N.J. 394,

895 A.2d 1143, 1148-49 (N.J. 2006). First, a plaintiff must

establish that the defendant could foresee the harm to the

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plaintiff. See id. “Once the ability to foresee harm to a

particular individual has been established, . . .

considerations of fairness and policy govern whether the

imposition of a duty is warranted.” Id. at 1148. 

“[W]hether imposing a duty is fair involves ‘weighing, and

balancing several factors — the relationship between the

parties, the nature of the attendant risk, the opportunity

and ability to exercise care, and the public interest in the

proposed solution.’” Id. at 1149 (quoting Hopkins v. Fox &

Lazo Realtors, 132 N.J. 426 (N.J. 1993)).

9. The Complaint here asserts that, on August 17, 2010,

Plaintiff “suffered 2nd degree burns on his chest” and,

shortly thereafter, received due medical care. Docket Entry

No. 1, at 5. While the Complaint is based on the fact of

these burns, it is wholly silent as to the circumstances of

the burns. See generally, Docket Entry No. 1. However, the

exhibits attached to the Complaint indicate that,

immediately prior to suffering these burns, Plaintiff –

acting, apparently, on his own – “filled [a] bottle w[ith]

hot water to rinse [it and,] when [he was] shaking [the

bottle, the] hot water [bursted out and] burnt [his] chest.” 

Docket Entry No. 1-1, at 4. In other words, Plaintiff

asserts that he was negligent on his own and appears to base

his claim on a theory that the Government failed to protect

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him from his own negligent acts.

10. When Plaintiff filed his notice of claim asserting that he

was injured as a result of a wrong committed by the United

States, his claim was denied with the following explanation: 

You seek compensatory damages in the amount of

$20,000.00 for alleged negligence resulting in

your suffering a burn while housed at FCI Fairton

on August 17, 2010. After careful review of this

claim, [the Government] ha[s] decided not to offer

a settlement. Although you did suffer 2 degree

burns and were provided medical care and treatment

on a number of occasions, there is no verifiable

evidence or support for your claim you suffered

your injury as a result of the negligence of a

government employee. 

Id. at 5.

11. Here, Plaintiff presented a negligence claim to the United

States in the amount of $20,000, see id., but his Complaint

seeks $800,000 in compensatory damages and $1 in punitive

damages. As to Plaintiff’s claims for compensatory damages

in excess of $20,000 and his claim for punitive damages,

these claims will be stricken as violating the mandate of

the FTCA. Hence, only his claim for $20,000 remains. 

However, as for the substance of this claim, Plaintiff’s

claim must be dismissed for failure to state a claim since

nowhere in the Complaint does Plaintiff allege that a

federal employee: a) breached a duty due to Plaintiff by

acting negligently and b) proximately caused Plaintiff’s

burns. See Iqbal, 129 S. Ct. at 1949. 

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12. When dismissing a case brought by a pro se plaintiff, the

Court must decide whether the dismissal will be with

prejudice or without prejudice to leave to amend. See

Grayson v. Mayview State Hospital, 293 F.3d 103, 110-11 (3d

Cir. 2002); Shane v. Fauver, 213 F.3d 113, 117 (3d Cir.

2000). When it is apparent that leave to amend would be

futile, such dismissal should be with prejudice. Here,

Plaintiff’s exhibits from the underlying agency proceedings

(and his Complaint’s silence as to the circumstances of

Plaintiff’s burns) strongly militate in favor of dismissal

with prejudice. However, out of an abundance of caution,

the Court will presume the possibility, however remote, that

Plaintiff may be able to cure the deficiencies of his

pleading.

IT IS, therefore, on this 8th day of June ,

2012,

ORDERED that the Clerk shall reopen this matter by making a

new and separate entry on the docket reading “CIVIL CASE

REOPENED”: and it is further

ORDERED that Plaintiff's application to proceed in forma

pauperis is granted, and the Clerk shall file the Complaint

without prepayment of the filing fee; and it is further

ORDERED that, pursuant to 28 U.S.C. § 1915(b), the Clerk

shall serve this Memorandum Opinion and Order upon the United

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States Attorney for the District of New Jersey and upon the

Warden of Plaintiff’s current place of confinement; and it is

further

ORDERED that Plaintiff is assessed a filing fee of $350.00

which shall be deducted from his prison account pursuant to 28

U.S.C. § 1915(b)(2) in the manner set forth below, regardless of

the outcome of the litigation; and it is further

ORDERED that, pursuant to 28 U.S.C. § 1915(b)(1)(A),

Plaintiff is assessed an initial partial filing fee equal to 20%

of the average monthly deposits to the Plaintiff's prison account

for the six month period immediately preceding the filing of the

Complaint; when funds exist, the New Jersey Department of

Corrections shall deduct said initial fee from Plaintiff’s prison

account and forward it to the Clerk; and it is further

ORDERED that, pursuant to 28 U.S.C. § 1915(b)(2), until the

$350.00 filing fee is paid, each subsequent month that the amount

in Plaintiff's prison account exceeds $10.00, the Bureau of

Prisons shall assess, deduct from the Plaintiff's account, and

forward to the Clerk payments equal to 20% of the preceding

month's income credited to Plaintiff's prison account, with each

payment referencing the docket number of this action; and it is

further

ORDERED that Plaintiff’s claims for punitive damages and for

compensatory damages in excess of $20,000 are stricken from the

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docket; and it is further

ORDERED that the Clerk shall terminate the “Federal Bureau

of Prisons et al.” as Defendant in this matter; and it is further

ORDERED that the Clerk shall add the “United States of

America” as Defendant in this matter; and it is further

ORDERED that the Complaint is dismissed. Such dismissal is

without prejudice; and it is further

ORDERED that the Clerk shall administratively terminate this

matter by making a new and separate entry on the docket reading

“CIVIL CASE ADMINISTRATIVELY TERMINATED”; and it is further

ORDERED that Plaintiff may have this matter reopened in the

event Plaintiff files, within thirty days from the date of entry

of this Memorandum Opinion and Order, Plaintiff’s amended

complaint stating, clearly and concisely, the facts underlying

Plaintiff’s allegations that an agent of the United States

breached a duty of care by acting negligently and proximately

causing Plaintiff’s burns, thus showing, with the degree of

plausibility required by Iqbal, the elements of the tort asserted

by Plaintiff; and it is finally

ORDERED that the Clerk shall serve this Memorandum Opinion

and Order upon Plaintiff by regular U.S. mail and shall include

in the said mailing a blank civil complaint form.

 s/ Noel L. Hillman 

NOEL L. HILLMAN, U.S.D.J.

At Camden, New Jersey 

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