NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

SERGIO OROZCO-BARAJAS, :

: Civil Action No. 11-3628 (NLH)

Plaintiff, :

:

v. : OPINION

:

DONNA ZICKEFOOSE, et al., :

:

Defendants. :

:

APPEARANCES:

Sergio Orozco-Barajas

F.C.I. Fort Dix

P.O. Box 2000

Fort Dix, NJ 08640

Plaintiff pro se

Karen Helene Shelton, Esq.

Assistant U.S. Attorney

402 East State Street

Trenton, NJ 08608

and

Michael E. Campion

Assistant U.S. Attorney

970 Broad Street

Suite 700

Newark, NJ 07102

Counsel for Defendants

HILLMAN, District Judge

This case concerns Plaintiff Sergio Orozco-Barajas’s claims that the Defendants failed to 

provide constitutionally adequate medical care for a chronic leg injury while he was confined at 

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the Federal Correctional Institution at Fort Dix, New Jersey. Presently before the Court are the 

Motion [19] of the individually-named defendants, for summary judgment, as to the claim for 

damages, and to dismiss the claim for injunctive relief as moot, and the Motion [33] of the 

United States to dismiss, for lack of jurisdiction, the claim asserted under the Federal Tort 

Claims Act, 28 U.S.C. §§ 1346(b), 2401(b), 2671 et seq.1

I. BACKGROUND

This matter was opened to the Court in June 2011, when Plaintiff filed a Complaint [1] 

describing a chronic leg injury and alleging that various federal correctional officials and 

medical professionals had failed to properly treat the injury in at least three different federal 

correctional institutions over a period of several years. Plaintiff sought damages for the alleged 

denial of appropriate medical care and injunctive relief, in the form of an order to provide the 

care he alleged was necessary. See generally Bivens v. Six Unknown Named Agents of Federal 

Bureau of Narcotics, 403 U.S. 388 (1971); Carlson v. Green, 446 U.S. 14 (1980).

This Court screened the Complaint for dismissal, pursuant to 28 U.S.C. § 1915A and 42 

U.S.C. § 1997e, and in an Opinion and Order [5, 6] entered April 25, 2012, ordered that: 

(1) Plaintiff’s Eighth Amendment medical-care claim for damages could proceed as against 

Defendants Clinical Director Dr. Abigail Lopez de Lasalle, Assistant Health Services 

Administrator Ed Eichel, Mid-Level Practitioner Jose Ravago, Dr. Williams, and Dr. Samir 

Sulayman, (the “individually-named Defendants”), (2) Plaintiff’s Eighth Amendment claim for 

injunctive relief, in the form of an order for treatment, could proceed as against Defendant 

Warden Donna Zickefoose, and (3) all remaining claims would be dismissed. 

 1 Plaintiff’s pending Motion [24] for extension of time to respond to the Motion [19] for 

summary judgment will be dismissed as moot. Plaintiff filed his Response [25] on January 22, 

2013.

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On October 2, 2012, the individually-named Defendants filed a Motion [19] to dismiss 

the claim for injunctive relief as moot, arguing that Plaintiff had received the treatment he 

requested in his Complaint, and for summary judgment as to the Eighth Amendment claim for 

damages, arguing that the undisputed evidence demonstrates (1) that there is no evidence that 

Defendant Ed Eichel had any personal involvement in Plaintiff’s care or treatment decisions, and 

(2) that Plaintiff received timely and appropriate medical care for his leg injury. That Motion is 

supported by a Statement of Undisputed Material Facts, the Declaration of Dr. Abigail Lopez de 

Lasalle, with exhibits, and the Declaration of Ed Eichel.

Thereafter, on February 14, 2013, this Court entered an Order [28] granting Plaintiff’s 

Motion [20], dated November 1, 2012, to file an Amended Complaint. The Amended Complaint 

[29] restates the same claims against the existing individually-named Defendants and asserts a 

new claim, under the Federal Tort Claims Act, against the United States, arising out of the same 

factual allegations. 

On February 22, 2013, Plaintiff filed a Brief [25] in opposition to the pending Motion 

[19] for summary judgment. Plaintiff’s Brief is not supported by any counter-statement of 

undisputed material facts or other affidavits or exhibits. Instead, Plaintiff argues that the 

undisputed facts demonstrate that the individually-named Defendants were deliberately 

indifferent to his need for medical care. Plaintiff did not respond to the suggestion that his claim 

for injunctive relief had become moot. In their Reply Brief [32], the individually-named 

Defendants note that the claims against them remain unchanged in the Amended Complaint and 

they renew their arguments in favor of their pending Motion to dismiss and for summary 

judgment.

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Also on February 22, 2013, the United States filed its Motion [33] to dismiss the claim 

under the Federal Tort Claim Act (“FTCA”) for lack of jurisdiction. See Fed.R.Civ.P. Rule 

12(b)(1). More specifically, the United States asserts that Plaintiff failed to file his FTCA claim

within six months after denial of his administrative claim. See 28 U.S.C. §§ 2401(b), 2675. 

Plaintiff has not opposed the United States’ Motion to dismiss.

II. DISCUSSION

A. The Motion of the Individually-Named Defendants 

1. The Summary Judgment Standard

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, a district court shall grant 

summary judgment, as to any claim or defense, “if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 

Fed.R.Civ.P. 56(a). Summary judgment is appropriate where the Court is satisfied that the 

materials in the record, including depositions, documents, electronically stored information, 

affidavits or declarations, stipulations, admissions, or interrogatory answers, demonstrate that 

there is no genuine issue as to any material fact and that the moving party is entitled to a 

judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986).

An issue is “genuine” if it is supported by evidence such that a reasonable jury could 

return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

248 (1986). A fact is “material” if, under the governing substantive law, a dispute about the fact 

might affect the outcome of the suit. Id. In considering a motion for summary judgment, a 

district court may not make credibility determinations or engage in any weighing of the 

evidence; instead, the non-moving party's evidence “is to be believed and all justifiable 

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inferences are to be drawn in his favor.” Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d 

Cir.2004) (quoting Anderson, 477 U.S. at 255).

Initially, the moving party has the burden of demonstrating the absence of a genuine issue 

of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has 

met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts 

showing that there is a genuine issue for trial. Id. Thus, to withstand a properly supported 

motion for summary judgment, the nonmoving party must identify specific facts and affirmative 

evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256–57; 

Fed.R.Civ.P. Rule 56(c). A party opposing summary judgment must do more than just rest upon 

mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 

232 (3d Cir.2001).

Here, Plaintiff has failed to submit a counter-statement of material facts or otherwise to 

dispute the statement of material facts submitted by the individually-named Defendants. 

Accordingly, this Court will consider the facts, as presented by the individually-named 

Defendants, undisputed for purposes of considering the Motion [19] to dismiss and for summary 

judgment. See Fed.R.Civ.P. 56(e).

2. The Undisputed Facts Regarding Plaintiff’s Medical Care

Plaintiff transferred in to the Federal Correctional Institution at Fort Dix, New Jersey, on 

December 2, 2010, with a pre-existing injury to his left thigh. (Decl. of Abigail Lopez de 

Lasalle, Motion for Summary Judgment, Ex. 2 at ¶ 4.). Plaintiff had a history of femoral 

hardware placed in his left thigh due to a fracture from a gunshot wound thirteen years earlier; he 

had a history of drainage from that wound prior to his transfer. (Id., ¶¶ 4-6.)

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Plaintiff reported to Sick Call the next day, Friday, December 3, 2010, complaining of 

this draining wound and reporting that he had been prescribed antibiotics at his previous 

institution. (Id., ¶ 5.) Defendant Mid-Level Practitioner (“MLP”) Jose Ravago examined 

Plaintiff and noted a small open would with yellowish discharge. (Id.) MLP Ravago 

recommended that a culture be taken of the wound and instructed Plaintiff to return on Monday, 

December 6, 2010, for the culture. (Id.) At that time, Plaintiff did not report any pain. (Id. Ex. 1

at Page ID 139.) Plaintiff was counseled on Wound Care. (Id. Ex. 1 at Page ID 140.)

On December 6, 2010, Dr. Sulayman examined Plaintiff at the Chronic Care Clinic. (Id.

¶ 6.) He noted that Plaintiff had a fracture of his left femur due to a gunshot wound 

approximately thirteen years earlier. Dr. Sulayman noted that Plaintiff reported that he had

experienced drainage from the wound “off and on” and that he had slight drainage that day. (Id.

Ex. 1 at Page ID 142.) Dr. Sulayman took a culture of the wound, cleansed and covered the 

wound, and instructed Plaintiff to return daily for a dressing change. (Id.) He also ordered an 

x-ray of the left thigh. He deferred prescribing an antibiotic until the results of the wound culture 

were received in order to determine the appropriate course of treatment. (Id.) At this time, 

Plaintiff did not report any pain. (Id. Ex. 1 at Page ID 142.) Plaintiff was counseled on Access 

to Care. (Id. Ex. 1 at Page ID 145.)

On December 15, 2010, Plaintiff reported to Sick Call where MLP Ravago examined 

him. (Id. ¶ 7.) MLP Ravago noted that the results of the wound culture were pending. Plaintiff 

reported pain at a level of “4” on a ten-point scale; MLP Ravago prescribed Acetaminophen for 

pain control. (Id. Ex. 1 at Page ID 146.) In response to Plaintiff’s request, MLP Ravago made a 

consultation request for the Orthopedist to evaluate Plaintiff and make treatment 

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recommendations. (Id. ¶ 7.) Plaintiff was counseled on Access to Care and Wound Care. (Id.

Ex. 1 at Page ID 148.)

On January 3, 2011, Plaintiff reported to Sick Call complaining of pain, at the level of 

“4” on a ten-point scale, in his left thigh. (Id. ¶ 8 and Ex. 1 at Page ID 155). At that time, MLP 

Ravago prescribed Ibuprofen for pain and noted that the December 6, 2010, bacterial culture was 

negative, (skin flora isolated), meaning only normal microorganisms were present, and an 

antibiotic was not indicated. (Id.)

On January 5, 2011, Plaintiff reported to Sick Call reporting green pus coming out of his 

old surgical scar, through a one-centimeter opening. (Id. ¶ 9 and Ex. 1 at Page ID 159.) He 

experienced pain on touch, again at a Level “4,” (Id. Ex. 1 at Page ID 158), and an increase in 

temperature in the affected area; therefore, MLP Vicente Elias prescribed the antibiotic 

Levofloxacin and instructed Plaintiff to report to Sick Call if his condition worsened. (Id. Ex. 1 

at Page ID 160.)

On January 27, 2011, the Orthopedist Dr. Williams evaluated Plaintiff. (Lopez de 

Lasalle Decl., ¶ 10.) He diagnosed Plaintiff with chronic osteomyelitis (bone infection) of the 

left femur and recommended: (1) Sensitivity and Culture (already completed), (2) a 30-day 

course of the antibiotic Bactrim, and (3) follow-up with the Orthopedist in 30 days. (Id.) Also 

on January 27, 2011, an x-ray confirmed a fracture deformity of Plaintiff’s left femur, and 

revealed ballistic fragments, and lucencies around the metal rod and screws suggesting 

loosening. (Id. Ex. 1 at Page ID 163, 198.) The 30-day follow-up recommendation was 

approved by Dr. Lopez de Lasalle that same day. (Id. Ex. 1 at Page ID 164.)

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On February 1, 2011, Plaintiff reported to Sick Call for follow-up and MLP Ravago 

examined him. (Id. ¶ 11.) Plaintiff reported no new complaints and he reported no pain. (Id.

Ex. 1 at Page ID 166.)

On February 24, 2011, the Orthopedist Dr. Williams examined Plaintiff for follow-up. 

(Id. ¶ 12.) The Orthopedist recommended: (1) a CT scan of the left thigh to look for an abscess, 

(2) continue Bactrim indefinitely, and (3) return to Orthopedic clinic with results of CT scan.2

On March 31, 2011, Plaintiff reported to Sick Call complaining of swelling and pain at 

the level of “6.” (Id. ¶ 13 and Ex. 1 at Page ID 173.) MLP Ravago prescribed Ibuprofen for pain 

and requested that the CT scan be completed as soon as possible. (Id. Ex. 1 at Page ID 174). At 

7:20 p.m. that same evening, Plaintiff reported to Sick Call because he could not get his 

medication; the on-call physician prescribed one dose of Rocephin IM, Bactrim, and Motrin, to 

accommodate Plaintiff until his prescription could be filled the next day. (Id. Ex. 1 at Page ID 

177-79.) 

On April 11, 2011, Plaintiff reported to Sick Call for wound treatment and reported pain 

at the level of “7.” He also reported two new areas of possible infection. The new areas were 

not open or draining, but appeared to be red, swollen, and warm to the touch. (Id. Ex. 1 at Page 

ID 183-84.) Plaintiff was instructed to return the next morning, but there is no record reflecting 

that he complied with that instruction. (Id.) On April 15, 2011, Dr. Lopez de Lasalle re-wrote 

the consult request for the CT scan, as it needed to state “per Radiologist, with or without 

contrast as indicated.” (Id. Ex. 1 at Page 186.)

 2 On March 7, 2011, Plaintiff reported to Sick Call for an unrelated complaint. The records of 

that visit reflect that Plaintiff reported no pain at that time. (Decl. of Lopez de Lasalle, Ex.1 at 

Page ID 171.)

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On April 22, 2011, Plaintiff received the CT scan of his left thigh at St. Francis Medical 

Center, after which he returned to FCI Fort Dix without complication and without reporting any 

new complaints or pain. (Id. ¶ 14 and Ex. 1 at Page ID 189.) When he returned to FCI Fort Dix, 

Defendant Ed Eichel spoke with Plaintiff and reviewed the medical records to determine if 

Plaintiff was prescribed any medication or if any physical or housing restrictions were 

recommended by the outside medical professionals. (Motion [19], Decl. of Ed Eichel at ¶ 3.)3 

On the evening of April 30, 2011, Plaintiff complained of a “boil” behind his left knee, 

that he reported had been present for one to two weeks, and he was examined by his housing unit 

officer. (Decl. of Lopez de Lasalle ¶ 15.) The on-call physician was contacted and determined 

that Plaintiff should be evaluated by his Primary Care Physician during the day, as this was not 

an emergency. (Id.) On May 3, 2011, Plaintiff was seen by his primary care physician, at which 

time he reported being in no pain. The physician recommended a consult with an orthopedic 

surgeon for Plaintiff’s chronic osteomyelitis and released him to his unit with lower bunk and 

sedentary work restrictions. (Id. Ex. 1 at Page ID 197-202.)

On May 6, 2011, FCI Fort Dix medical staff received the CT scan report, which revealed 

an old fracture deformity of the midshaft of the left femur, showed no definite evidence of 

osteomyelitis, and showed fluid collections that could be related to prior injury or surgery; 

abscesses could not be completely excluded. (Id. ¶ 16.) Also on May 6, 2011, Clinical Director 

Dr. Lopez de Lasalle recommended a consultation for the General Surgeon based on the noneffectiveness of the antibiotics. (Id.) Also on May 6, Plaintiff reported to Sick Call, stating that 

he was experiencing pain at the level of “6,” due to the boil behind his knee, which was bleeding 

and draining pus; the nurse cleaned and dressed that wound. The old surgery scar had minimal 

 3 This record memorializing Plaintiff’s return from the hospital and release to his unit is the only 

record reflecting any participation by Defendant Ed Eichel in Plaintiff’s care.

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drainage at that time. Plaintiff was again given Bactrim and a pain reliever. (Id. Ex. 1 at Page 

ID 207, 210.) These prescriptions were renewed on May 24, 2011. (Id. Ex. 1 at Page ID 212.)

On May 26, 2011, the consulting Orthopedic Surgeon examined Plaintiff and diagnosed a 

chronic infection of the left femur. (Decl. of Lopez de Lasalle, ¶ 17.) He recommended Incision 

and Drainage (“I & D”) of the wound and debridement. (Id.) On June 2, 2011, FCI Fort Dix 

medical staff reviewed the Orthopedic Surgeon’s recommendations and submitted a request for 

approval of the procedure. (Id. ¶ 17 and Ex. 1 at Page ID 214-15.)

On June 9, 2011, Plaintiff was again seen by an orthopedic doctor. At that time, Plaintiff 

reported no pain. The Orthopedist noted two small draining wounds and recommended removal 

of the hardware, I & D of all the wounds, and long-term IV antibiotics. (Id. ¶ 18 and Ex. 1 Page 

ID 217.)

On June 13, 2011, the Clinical Director evaluated Plaintiff. (Id. ¶ 19.) The surgery 

request had been approved and was pending scheduling. In accordance with Plaintiff’s request, 

and to prevent worsening of his condition, the Clinical Director renewed Plaintiff’s Bactrim 

prescription. (Id.)

On June 29, 2011, Plaintiff was transported to a local hospital where he underwent 

removal of hardware, I & D, and initiation of IV antibiotics. (Id. ¶ 20.) Plaintiff’s treatment plan 

called for four to six weeks of IV antibiotics. (Id.) Plaintiff remained hospitalized. (Id. ¶ 22.) 

On July 5, 2011, Plaintiff’s case was discussed with the Clinical Director, Dr. Lopez de Lasalle, 

who made the decision to prepare a request for medical transfer of Plaintiff, based on the longterm IV antibiotic treatment plan. (Id. ¶ 21.) On July 11, 2011, the request for re-designation to 

the Federal Medical Center (FMC) Devens was approved and Plaintiff was released from the 

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hospital to FCI Fort Dix, where he remained in the medical department until his transfer to FMC 

Devens on July 13, 2011. (Id. ¶ 22.)

At FMC Devens, Plaintiff received rehabilitation and physical therapy. (Id. ¶ 23.) At the 

completion of that therapy, on February 14, 2012, Plaintiff was transferred back to FCI Fort Dix. 

(Id. Ex. 2.) Plaintiff’s chronic osteomyelitis has resolved and he has not made any further 

complaints regarding this issue since his return to FCI Fort Dix. (Id. ¶ 23.) 

3. The Eighth Amendment Claim for Damages

The Eighth Amendment to the United States Constitution, applicable to the individual 

states through the Fourteenth Amendment, prohibits the states from inflicting “cruel and unusual 

punishments” on those convicted of crimes. Rhodes v. Chapman, 452 U.S. 337, 344-46 (1981). 

This proscription against cruel and unusual punishment requires that prison officials provide 

inmates with adequate medical care. Estelle v. Gamble, 429 U.S. 97, 103-04 (1976). In order to 

prevail on a claim for a violation of his right to adequate medical care, an inmate must 

demonstrate: (1) a serious medical need; and (2) behavior on the part of prison officials that 

constitutes deliberate indifference to that need. Id. at 106.

To satisfy the first prong of the Estelle inquiry, the inmate must demonstrate that his 

medical needs are serious. “Because society does not expect that prisoners will have unqualified 

access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment 

violation only if those needs are ‘serious.’” Hudson v. McMillian, 503 U.S. 1, 9 (1992). Serious 

medical needs include those that have been diagnosed by a physician as requiring treatment or 

that are so obvious that a lay person would recognize the necessity for doctor’s attention, and 

those conditions which, if untreated, would result in lifelong handicap or permanent loss. 

Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 

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1987), cert. denied, 486 U.S. 1006 (1988).

The second element of the Estelle test requires an inmate to show that prison officials 

acted with deliberate indifference to his serious medical need. “Deliberate indifference” is more 

than mere malpractice or negligence; it is a state of mind equivalent to reckless disregard of a 

known risk of harm. Farmer v. Brennan, 511 U.S. 825, 837-38 (1994). Furthermore, a 

prisoner’s subjective dissatisfaction with his medical care does not in itself indicate deliberate 

indifference. Andrews v. Camden County, 95 F.Supp.2d 217, 228 (D.N.J. 2000); Peterson v. 

Davis, 551 F.Supp. 137, 145 (D. Md. 1982), aff’d, 729 F.2d 1453 (4th Cir. 1984). Similarly, 

“mere disagreements over medical judgment do not state Eighth Amendment claims.” White v. 

Napoleon, 897 F.2d 103, 110 (3d Cir. 1990). “Courts will disavow any attempt to second-guess 

the propriety or adequacy of a particular course of treatment ... [which] remains a question of 

sound professional judgment. Implicit in this deference to prison medical authorities is the 

assumption that such informed judgment has, in fact, been made.” Inmates of Allegheny County 

Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (internal quotation and citation omitted). Even if 

a doctor’s judgment concerning the proper course of a prisoner’s treatment ultimately is shown 

to be mistaken, at most what would be proved is medical malpractice and not an Eighth 

Amendment violation. Estelle, 429 U.S. at 105-06; White, 897 F.2d at 110.

“Where prison authorities deny reasonable requests for medical treatment, however, and 

such denial exposes the inmate ‘to undue suffering or the threat of tangible residual injury,’ 

deliberate indifference is manifest. Similarly, where ‘knowledge of the need for medical care [is 

accompanied by the] ... intentional refusal to provide that care,’ the deliberate indifference 

standard has been met. ... Finally, deliberate indifference is demonstrated ‘[w]hen ... prison 

authorities prevent an inmate from receiving recommended treatment for serious medical needs 

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or deny access to a physician capable of evaluating the need for such treatment.” Monmouth 

County Corr. Inst. Inmates v. Lanzaro, 834 F.2d at 346 (citations omitted). “Short of absolute 

denial, ‘if necessary medical treatment [i]s ... delayed for non-medical reasons, a case of 

deliberate indifference has been made out.” Id. (citations omitted). “Deliberate indifference is 

also evident where prison officials erect arbitrary and burdensome procedures that ‘result[] in 

interminable delays and outright denials of medical care to suffering inmates.’” Id. at 347 

(citation omitted).

Here, Plaintiff argues that the individually-named Defendants were deliberately 

indifferent to his serious medical needs because they “refused to open and drain these 

abscesses,” instead “persisting in an easy but ineffective course of action and treatment with 

antibiotics medications.” (Opposition Brief [25] at 4.) Plaintiff alleges that the medical staff at 

FCI Fort Dix knew or should have known that “prompt surgical removal” of the hardware in his 

leg was a necessary treatment.

Contrary to Plaintiff’s characterization of events, the undisputed facts demonstrate that 

the medical staff at FCI Fort Dix proceeded with an evaluation of the need for surgical treatment 

on a parallel course with their treatment of the chronic infection with antibiotics. A request for 

consultation with an Orthopedist was made within two weeks of Plaintiff’s transfer in to FCI 

Fort Dix. FCI Fort Dix medical staff complied with the suggestion for an x-ray and CT scan to 

aid in diagnosis of the cause for Plaintiff’s draining wound. FCI Fort Dix medical staff timely 

reviewed the recommendation for surgery and requested approval. Nor did the medical staff 

ignore Plaintiff’s intermittent reports of moderate pain, promptly responding to such reports with 

prescriptions for pain medication. All that Plaintiff has demonstrated is his personal

disagreement about the time it should have taken the FCI Fort Dix medical staff to determine that 

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surgery was necessary, which is insufficient to state a claim for an Eighth Amendment violation. 

There is nothing in the record to suggest that a timetable of approximately six months is an 

unreasonably long period of time to pursue an antibiotic course of treatment, order diagnostic 

tests, schedule consultations with specialists, and schedule surgery for Plaintiff’s condition, 

especially as Plaintiff’s infection and pain were medically managed during that period. Plaintiff 

has failed to demonstrate that there is a genuine issue regarding “deliberate indifference” in the 

course of treatment pursued by the individually-named Defendants. Their motion for summary 

judgment will be granted. 

4. The Eighth Amendment Claim for Injunctive Relief

Plaintiff’s claim for injunctive relief, in the form of an order for treatment, has become 

moot.

It is axiomatic that “federal courts are without power to decide questions that cannot 

affect the rights of litigants in the case before them.” North Carolina v. Rice, 404 U.S. 244, 246 

(1971). This inability to decide moot cases derives from the requirement of Article III of the 

U.S. Constitution under which the exercise of judicial power depends upon the existence of a 

“case or controversy.” DeFunis v. Odegaard, 416 U.S. 312 (1974) (citations omitted).

Where an inmate seeks injunctive relief in the form of an order compelling medical 

treatment, the claim is mooted by the delivery of the requested medical care during the pendency 

of the litigation. See, e.g., Williamson v. Correctional Medical Services, Inc., No. 07-4425, 304 

Fed.Appx. 36, 37 (3d Cir. Dec. 23, 2008) (claim for order compelling knee surgery and dental 

care); McKeithan v. Iannuzzi, Civil Action No. 10-1751, 2012 WL 2308620, *5 (M.D. Pa. June 

18, 2012) (request for treatment of ingrown toenail). Accordingly, the claim for injunctive relief 

will be dismissed as moot.

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B. The Motion to Dismiss the Claim under the Federal Tort Claims Act

The United States has moved for dismissal of the claim under the Federal Tort Claim Act, 

arguing that Plaintiff’s failure to timely file the claim deprives this Court of jurisdiction.

1. Rule 12(b)(1) Standard

As the Third Circuit has held, “[f]ederal courts are courts of limited jurisdiction, and 

when there is a question as to our authority to hear a dispute, ‘it is incumbent upon the courts to 

resolve such doubts, one way or the other, before proceeding to a disposition on the merits.’” 

Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 418 (3d Cir.2010) (citing Carlsberg Res. 

Corp. v. Cambria Sav. & Loan Ass'n., 554 F.2d 1254, 1256 (3d Cir.1977)). 

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges the 

existence of a federal court's subject matter jurisdiction. “When subject matter jurisdiction is 

challenged under Rule 12(b)(1), the plaintiff must bear the burden of persuasion.” Symczyk v. 

Genesis HealthCare Corp., 656 F.3d 189, 191 n. 4 (3d Cir.2011) (citing Kehr Packages, Inc. v. 

Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.1991)).

A motion to dismiss for lack of subject matter jurisdiction may either (1) “attack the 

complaint on its face” or (2) “attack the existence of subject matter jurisdiction in fact, quite 

apart from any pleadings.” Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d 

Cir.1977). “The defendant may facially challenge subject matter jurisdiction by arguing that the 

complaint, on its face, does not allege sufficient grounds to establish subject matter jurisdiction.” 

D.G. v. Somerset Hills School Dist., 559 F.Supp.2d 484, 491 (D.N.J.2008). On a facial attack, 

“the court must consider the allegations of the complaint as true.” Mortensen, 549 F.2d at 891. 

“A defendant can also attack subject matter jurisdiction by factually challenging the 

jurisdictional allegations set forth in the complaint.” D.G., 559 F.Supp.2d at 491.

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Upon a factual attack, by contrast, the court need not presume the truth of the allegations 

and “is free to weigh the evidence and satisfy itself as to the existence of its power to hear the 

case.” Mortensen, 549 F.2d at 891. Moreover, when considering a factual challenge to the 

Court's jurisdiction under Rule 12(b)(1), the Court is “not confined to the allegations in the 

complaint ... and can look beyond the pleadings to decide factual matters relating to jurisdiction.” 

Cestonaro v. U.S., 211 F.3d 749, 752 (3d Cir.2000) (citing Mortensen, 549 F.2d at 891). The 

defendant may factually attack subject matter jurisdiction at any stage in the litigation, including 

before the answer has been filed. D.G., 559 F.Supp.2d at 491.

2. The Federal Tort Claims Act

The United States has sovereign immunity except where it consents to be sued. United 

States v. Mitchell, 463 U.S. 206, 212 (1983). In the absence of such a waiver of immunity, 

Plaintiff cannot proceed in an action for damages against the United States. See FDIC v. Meyer, 

510 U.S. 471, 484-87 (1994). The Federal Tort Claims Act constitutes a limited waiver of the 

sovereign immunity of the United States. 28 U.S.C. § 2679(b)(1). The FTCA gives a district 

court exclusive jurisdiction over civil actions 

[1] against the United States, [2] for money damages, ... [3] for injury or loss of 

property, ... [4] caused by the negligent or wrongful act or omission of any 

employee of the Government [5] while acting within the scope of his office or 

employment, [6] under circumstances where the United States, if a private person, 

would be liable to the claimant in accordance with the law of the place where the 

act or omission occurred.

Deutsch v. United States, 67 F.3d 1080, 1091 (3d Cir. 1995) (quoting 28 U.S.C. § 1346(b)); see 

also Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 477 (1994); United States v. Muniz, 374 

U.S. 150 (1963). However, a district court lacks jurisdiction over a federal tort claim unless the 

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claimant has first exhausted administrative remedies. See 28 U.S.C. § 2675(a); see also McNeil 

v. United States, 508 U.S. 106 (1993); Deutsch, 67 F.3d at 1091.4 

In addition, an inmate must file his FTCA action in the district court within six months of 

the date that the notice of final denial of the claim is mailed to him by the agency. 28 U.S.C. 

§ 2401(b) (“A tort claim against the United States shall be forever barred ... unless action is 

begun within six months after the date of mailing, by certified or registered mail, of notice of 

final denial of the claim by the agency to which it was presented.”). The FTCA statute of 

limitations, however, is not jurisdictional; in appropriate circumstances, for example, the 

doctrine of equitable tolling can apply to actions asserted under it. Santos ex rel. Beato v. U.S., 

559 F.3d 189, 194-95 (3d Cir. 2009). Instead, “untimeliness ‘is an affirmative defense which the 

defendant has the burden of establishing.’” Royster v. U.S., No. 10-2000, 475 Fed.Appx. 417, 

419-20 (3d Cir. March 30, 2012) (quoting Hughes v. United States, 263 F.3d 272, 278 (3d Cir. 

2001) (citations and internal quotation marks omitted)).

3. Analysis

Here, the United States asks this Court to look beyond the pleading, attaching to its 

Motion the Declaration of Legal Assistant Tara Moran, a copy of Petitioner’s administrative 

Claim for damages arising out of the alleged failure to properly treat his leg injury, and the 

December 9, 2011, Letter denying his claim, which was sent to Plaintiff by certified mail. 

 4 To exhaust administrative remedies before the Bureau of Prisons ("BOP"), a federal inmate 

must submit his tort claim for a sum certain to the BOP’s Regional Office in the region where the 

claim occurred. 28 C.F.R. § 543.31(b). The Regional Counsel is authorized to deny the claim, 

propose to the claimant a settlement, or forward the claim with recommendations to the Office of 

General Counsel. 28 C.F.R. § 543.31(d). The General Counsel is required to consider the merits 

of a claim that has not been denied or settled by Regional Counsel. 28 C.F.R. § 543.31(e). 

Agency action is final upon either (1) the denial of a claim by Regional Counsel or General 

Counsel, or (2) their failure to finally dispose of the claim within six months from the date of 

filing. 28 C.F.R. § 543.31(f), (g). Here, there is no dispute that Plaintiff properly exhausted his 

administrative remedies.

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(Motion, Decl. of Tara Moran, Exs. 1, 2.) The Letter denying Petitioner’s claim contains the 

advice that, “If you are dissatisfied with this decision, you may bring an action against the United 

States in an appropriate United States District Court within six (6) months of the date of this 

memorandum.” (Id. Ex. 2.)5 The United States argues that Plaintiff’s proposed amended 

complaint, [20] in which he first asserted an FTCA claim against the United States, and which 

was submitted to the Court on November 1, 2012, is untimely and deprives this Court of 

jurisdiction to hear the FTCA claim.

As noted above, however, the suggestion of untimeliness does not go to the issue of

jurisdiction. Accordingly, the motion to dismiss for lack of jurisdiction will be denied. 

Nevertheless, the suggestion of untimeliness constitutes the assertion of an affirmative defense, 

which the United States bears the burden of proving, and which requires this Court to apply a 

summary judgment standard in order to consider the government’s affidavit and exhibits and to 

decide the issue. See Hughes v. U.S., 263 F.3d 272, 278 (3d Cir. 2001); Fed.R.Civ.P. 12(d).

The Tara Moran affidavit and exhibits establish that Plaintiff was sent proper notice of 

the denial of his administrative claim, by certified mail, on December 9, 2011, giving him until 

June 9, 2012, to file his FTCA claim in the appropriate federal district court. Plaintiff had the 

opportunity to respond, but he has not opposed the Motion to dismiss and has presented no 

argument or evidence suggesting any basis for equitable tolling.6

 Indeed, there is no issue as to 

 5 Plaintiff first requested leave to amend the Complaint to assert an FTCA claim by Motion [11] 

dated June 21, 2012. By Order [14] entered August 13, 2012, this Court ordered Plaintiff to 

submit the proposed amended complaint within 14 days thereafter. Plaintiff did not submit the 

proposed amended complaint [20] until November 1, 2012.

6 The Court of Appeals for the Third Circuit has identified three principal situations in which 

equitable tolling might be appropriate: “(1) the defendant has actively misled the plaintiff 

respecting the cause of action; (2) the plaintiff has in some extraordinary way been prevented 

from asserting his rights, or (3) the plaintiff has raised the precise statutory claim but has 

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the authenticity of the December 9, 2011, Letter, as Plaintiff attached a copy of the same Letter 

to his first Motion [11] for leave to amend, to establish exhaustion of administrative remedies. 

As the undisputed evidence shows that Plaintiff did not mail his motion to amend, attaching a 

copy of his proposed amended complaint first asserting the FTCA claim, until November 1, 

2012,7 the FTCA claim is untimely and will be dismissed with prejudice on that basis.8

III. CONCLUSION

For the reasons set forth above, the Motion for summary judgment will be granted, the 

Motion to dismiss as moot the Eighth Amendment claim for injunctive relief will be granted, and 

the FTCA claim will be dismissed with prejudice as untimely. An appropriate order follows.

At Camden, New Jersey s/ Noel L. Hillman 

Noel L. Hillman

United States District Judge

Dated: May 14, 2013

 

mistakenly done so in the wrong forum.” Sch. Dist. of Allentown v. Marshall, 657 F.2d 16, 20 

(3d Cir. 1981) (quotations and citations omitted). The circumstances to justify equitable tolling, 

however, must be extraordinary and “do not extend to what is a garden-variety claim of 

excusable neglect.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990); see also Hedges 

v. United States, 404 F.3d 744, 751 (3d Cir. 2005) (“Equitable tolling is an extraordinary remedy 

which should be extended only sparingly.”).

The Court notes that Plaintiff alleged, in his second Motion [20] to amend, that the fellow 

inmate who had been assisting him was no longer housed in the same institution, that Plaintiff 

had tried to obtain help from an outside lawyer, and that he later found another fellow inmate to 

assist him. These facts do not rise to the level of “extraordinary” circumstances sufficient to 

justify equitable tolling.

7 This Court will deem the Amended Complaint filed as of the date the Motion to amend was 

mailed. See Houston v. Lack, 487 U.S. 266 (1988); Burns v. Morton, 134 F.3d 109 (3d Cir. 

1998).

8 The same result would obtain with respect to Plaintiff’s first Motion for leave to amend, which 

was dated June 21, 2012, after expiration of the June 9, 2012, six-month FTCA limitations 

deadline.

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