2014 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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w . v i l l a no v a . e du/thir dc ir c uit_2014/480NOT 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. Bra nn

____________________________________ 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, procee ding pro se and in forma pauperis, appeals from the United States District Court for the Middle District of Pennsylvania’s order dismissing2

his complaint in part and granting su mmary judgment in favor of D efendants in part. For the following reasons, we w ill affirm in part, vacate in part, and remand.
I. In December 2011, Murchison filed a pro se civil co mplaint in the District Court. Murchison indicated in the caption of the complaint that he was bring ing suit pursuant to Bivens v. Six Unknown Named Age nts of the Fed. Bureau of Narcotics , 403 U.S. 388 (1971)

. Murchison named a variety of individuals as defendants , including officials at United States Penitent iary Lewisburg , where he was an inmate

. In his complaint, Murchison alleged that during May 16

- 18, 2011, Defendants injured him through the use of ex cessive force, unlawful restraint, sexual assault , the denial of m edical care, the denial of food and water, and torture . Murchison sought injun ctive relief and damages. In January 2012, t he Magistr ate 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, an d dismissing without prejudice constitutional claims against the remain ing defendants. Murchison filed his first

- amended complaint in April 2012. Tha t complaint listed the remaining in dividual defendants and added as a defendant the Fed eral Bureau of Pri son s (“BOP”). The complaint indicated in the caption that Murchison was bring ing suit pursuant to Bivens

. The clai ms raised in the complaint related to the May 2011 incident, and Murchison indicated that all violations were3

asserted under the Eighth Amen dment. However, Murchison referenced the “Tort Claim
Act ” and cited 28 U.S.C. § 501, which provides that the Department of Justice, of which th e BOP is a part, is a U.S. executive department. In June 2012, t he Magistrate Judge filed a report and recommen dation, which the District Court adopted in part and re jected in part. As t he Magistrate Jud g e recommended , the District Court ordered that the claims against the BOP be d ismissed 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 rep ort 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 bring i ng 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 and4

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 Magistrat e Judge also recommended granting summary judgment in fa vor 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 t o amend his complaint to add the United States as a defendant, the District Court adopted the report and recommendation, dismiss ed Murchison’s complaint as to his FTCA claims , and gr anted Defendants summary judgment as to the Bivens claims . Murchison time ly 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. Seiv erling , 229 F.3d 220, 223 (3 d 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 d ismiss, 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 when5

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 pr isoners, like Murchison, seeking relief through a Bivens action. See Nyhuis v. Reno , 204 F.3d 65, 68

- 7 0 (3d Cir. 2000). The record confirms that Murchison filed numerous requests for administrative remedies during the period between when he alleged his c laims 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), addr essed the claims raised in his complaint. 1 Accordingly, Murchison failed t o 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 ad ministrative 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 rejecte d 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).6

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 becaus e 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 De fendant.” In a case such as this , where a plaintiff has already amended his complaint once as a matter of course, the plaintiff may amend on ly 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 deficienc ies would not have been remedied7

by proposed amendments.” Kanter v. Barella , 489 F.3d 170, 181 (3d Cir. 2007).
However , where, as here, the Dis trict 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 o f bad faith, undue delay, prejudice or futility.” Alston v. Parker , 363 F.3d 22 9, 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 amend ment, unless an amendment would be inequitable or futile.” Id. at 235 ; see also Shane v. Fauver , 213 F.3d 113, 116 (3d Cir. 2000). He re, the District Court did

not address Murchison’s request for leave to amend , and failed to either inform him that he ha d 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 p art, vacate in part, and remand for further proceedings. Murchison’s motion for an extension of time to file a reply brief is granted.