2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-8-2014

Kenneth Murchison v. Warden Lewisburg USP

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-3790

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Recommended Citation

"Kenneth Murchison v. Warden Lewisburg USP" (2014). 2014 Decisions. Paper 480.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-3790

___________

KENNETH MURCHISON,

Appellant

v.

WARDEN LEWISBURG USP; UNKNOWN MEMBERS OF THE SORT TEAM; 

PHYSICIANS ASST. POTTER; DR. PIGOS; LT. SEBA; LT. SHERMAN; 

COUNSELOR METZGER; EMT MCCLINTOC

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 3-11-cv-02285)

District Judge: Honorable Matthew W. Brann

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

May 7, 2014

Before: CHAGARES, GARTH and SLOVITER, Circuit Judges

(Opinion filed: May 8, 2014)

___________

OPINION

___________

PER CURIAM

Kenneth Murchison, proceeding pro se and in forma pauperis, appeals from the 

United States District Court for the Middle District of Pennsylvania’s order dismissing 
2

his complaint in part and granting summary judgment in favor of Defendants in part. For 

the following reasons, we will affirm in part, vacate in part, and remand.

I.

In December 2011, Murchison filed a pro se civil complaint in the District Court. 

Murchison indicated in the caption of the complaint that he was bringing suit pursuant to 

Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 

(1971). Murchison named a variety of individuals as defendants, including officials at 

United States Penitentiary Lewisburg, where he was an inmate. In his complaint, 

Murchison alleged that during May 16-18, 2011, Defendants injured him through the use 

of excessive force, unlawful restraint, sexual assault, the denial of medical care, the 

denial of food and water, and torture. Murchison sought injunctive relief and damages. 

In January 2012, the Magistrate Judge issued a report and recommendation, which 

the District Court adopted, dismissing with prejudice Murchison’s claims for money 

damages against Defendants in their official capacities, dismissing with prejudice claims 

against certain individuals, and dismissing without prejudice constitutional claims against 

the remaining defendants. Murchison filed his first-amended complaint in April 2012. 

That complaint listed the remaining individual defendants and added as a defendant the 

Federal Bureau of Prisons (“BOP”). The complaint indicated in the caption that 

Murchison was bringing suit pursuant to Bivens. The claims raised in the complaint

related to the May 2011 incident, and Murchison indicated that all violations were 
3

asserted under the Eighth Amendment. However, Murchison referenced the “Tort Claim 

Act” and cited 28 U.S.C. § 501, which provides that the Department of Justice, of which 

the BOP is a part, is a U.S. executive department. In June 2012, the Magistrate Judge 

filed a report and recommendation, which the District Court adopted in part and rejected 

in part. As the Magistrate Judge recommended, the District Court ordered that the claims 

against the BOP be dismissed with prejudice because the BOP is not a proper defendant 

in a Bivens action. The Magistrate Judge also found that it would be futile to allow 

Murchison to amend his pleading as to the BOP. The District Court allowed Murchison’s 

claims against the remaining individual defendants to proceed.

After the filing of the June 2012 report and recommendation, but before the 

District Court partially adopted it, Murchison filed a second-amended complaint. In that 

complaint, Murchison removed the BOP from the list of defendants. In the caption, 

Murchison again indicated that he was bringing suit pursuant to Bivens, but he also 

indicated that he sought relief under the FTCA. The complaint focused on the May 2011 

incident and included for the first time claims related to a similar allegation of excessive 

force and retaliation that occurred on June 17, 2012. Murchison still sought injunctive 

relief and damages. 

Defendants filed a motion to dismiss pursuant to Rule 12(b) of the Federal Rules 

of Civil Procedure and, in the alternative, a motion for summary judgment pursuant to 

Rule 56 of the Federal Rules of Civil Procedure. In an August 2013 report and 
4

recommendation, the Magistrate Judge recommended dismissing any claim that 

Murchison attempted to raise under the FTCA because he did not name the United States 

as a defendant. The Magistrate Judge also recommended granting summary judgment in 

favor of Defendants as to the Bivens claims, concluding that Murchison failed to exhaust 

his administrative remedies. Over Murchison’s objections, which included a specific 

request for an opportunity to amend his complaint to add the United States as a 

defendant, the District Court adopted the report and recommendation, dismissed 

Murchison’s complaint as to his FTCA claims, and granted Defendants summary 

judgment as to the Bivens claims. Murchison timely appealed.

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and exercise plenary review 

over both the District Court’s dismissal order and the order granting summary judgment. 

See Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009); Allah v. Seiverling, 229 F.3d 

220, 223 (3d Cir. 2000). Because the District Court’s dismissal order did not indicate 

whether the dismissal was with or without prejudice, we treat it as an “adjudication on the 

merits.” Fed. R. Civ. P. 41(b). “To survive a motion to dismiss, a complaint must 

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is 

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Summary judgment is proper only when 
5

the record “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).

III.

A. Bivens Claims

The Prison Litigation Reform Act (“PLRA”) prohibits an inmate from bringing a 

civil rights suit alleging specific acts of unconstitutional conduct by prison officials “until 

such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). 

This requirement applies to federal prisoners, like Murchison, seeking relief through a 

Bivens action. See Nyhuis v. Reno, 204 F.3d 65, 68-70 (3d Cir. 2000). The record 

confirms that Murchison filed numerous requests for administrative remedies during the 

period between when he alleged his claims first arose and the filing of his complaint. 

However, none of the requests that Murchison properly submitted to the Central Office of 

the BOP, see 28 C.F.R. § 542.15(a), addressed the claims raised in his complaint.1

Accordingly, Murchison failed to exhaust his administrative remedies and the District 

Court properly granted summary judgment in favor of Defendants as to the Bivens

claims.

 

1 During the same time period, Murchison filed other administrative remedy requests 

with the Central Office, but they were rejected as improperly submitted. While it is not 

clear from the record whether those requests pertained to the claims raised in the 

complaint, it is inconsequential because those rejected requests cannot be used to satisfy 

the PLRA’s exhaustion requirement. See Woodford v. Ngo, 548 U.S. 81, 93 (2006); 

Spruill v. Gillis, 372 F.3d 218, 230-31 (3d Cir. 2004) (discussing the PLRA’s procedural 

default component).
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B. FTCA Claims

The only proper defendant in a suit pursuant to the FTCA is the United States. 

See King v. U.S. Dep’t of Veterans Affairs, 728 F.3d 410, 413 n.2 (5th Cir. 2013); CNA 

v. United States, 535 F.3d 132, 138 n.2 (3d Cir. 2008). Insofar as Murchison attempted 

to raise FTCA claims in his second-amended complaint, he failed to do so because only 

individuals were named as defendants. Accordingly, the District Court lacked subject 

matter jurisdiction over any claims raised under the FTCA and dismissal was appropriate. 

See Mars v. Hanberry, 752 F.2d 254, 255 (6th Cir. 1985) (“[T]he FTCA does not grant 

federal courts jurisdiction over actions against individual defendants such as federal 

employees.”).

In his objections to the August 2013 report and recommendation, Murchison stated 

that given the Magistrate Judge’s conclusion that his complaint failed to state an FTCA

claim, he should be allowed to “seek Leave to Amend His Complaint, and re-instate the 

United States as a Defendant.” In a case such as this, where a plaintiff has already 

amended his complaint once as a matter of course, the plaintiff may amend only with 

leave of court or consent from the opposing party, but “leave shall be freely given when 

justice so requires.” Fed. R. Civ. P. 15(a). The District Court did not address 

Murchison’s request and dismissed his FTCA claims. 

Generally, we review the denial of a request for leave to amend for abuse of 

discretion, “and there is none where pleading deficiencies would not have been remedied
7

by proposed amendments.” Kanter v. Barella, 489 F.3d 170, 181 (3d Cir. 2007). 

However, where, as here, the District Court did not determine whether leave to amend 

would have been futile our review is de novo. Great W. Mining & Mineral Co. v. Fox 

Rothschild LLP, 615 F.3d 159, 175 (3d Cir. 2010). “Dismissal without leave to amend is 

justified only on the grounds of bad faith, undue delay, prejudice or futility.” Alston v. 

Parker, 363 F.3d 229, 236 (3d Cir. 2004). “[E]ven when a plaintiff does not seek leave to 

amend, if a complaint is vulnerable to 12(b)(6) dismissal, a District Court must permit a 

curative amendment, unless an amendment would be inequitable or futile.” Id. at 235; 

see also Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000). Here, the District Court did 

not address Murchison’s request for leave to amend, and failed to either inform him that 

he had the opportunity to amend his complaint or determine that amendment would have 

been inequitable or futile. Given these circumstances, we will remand in order that the 

District Court grant Murchison leave to amend, unless an amendment would be 

inequitable or futile. 

IV.

For the foregoing reasons, we will affirm in part, vacate in part, and remand for 

further proceedings. Murchison’s motion for an extension of time to file a reply brief is 

granted.