Keith Bryant Webb v. Desan, Warden

The Warden’s name is incorrectly spelled. It should be Warden DeRosa. We will1
refer to the defendant by his proper name.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-4795
________________
KEITH BRYANT WEBB,
Appellant
v.
DESAN, WARDEN;1
MOTLEY, WARDEN
____________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(E.D. Pa. Civ. No. 04-cv-01909)
District Judge: Honorable J. Curtis Joyner
_______________________________________
Submitted Under Third Circuit L.A.R. 34.1(a)
October 9, 2007
RENDELL, HARDIMAN AND COWEN, CIRCUIT JUDGES
(Filed: October 11, 2007)
_______________________
OPINION
_______________________
PER CURIAM
Keith Bryant Webb, a federal prisoner proceeding pro se, appeals an order of the

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Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 3882
(1971).
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United States District Court for the Eastern District of Pennsylvania dismissing his
Bivens complaint.2
Webb filed a complaint, which was amended and supplemented, alleging that in
March 2004, he was housed in the Special Housing Unit (SHU) at F.C.I. Fort Dix, New
Jersey, because he was experiencing psychological problems for which he was prescribed
medication by the prison psychologist. His status required that he be housed and given
recreation separately from other inmates, especially inmates Lomax and Edmond, with
whom he had had prior problems. Webb claims that on or about March 4, 2004,
Defendants Rayes and McKinnon handcuffed him from behind and placed him in the
recreation “cage” alone with inmates Lomax and Edmond, contrary to the Captain’s
written order to keep them away from him. According to Webb, the defendants removed
the handcuffs from Lomax and Edmond, who then punched and stomped Webb’s face
and head into the cement floor in the defendants’ presence. Webb could not defend
himself because he was handcuffed. He alleges that he lay unconscious on the floor for
an unknown period of time and then was able to maneuver himself to a standing position.
He states that he was in a dazed state and that he tried to escape by ramming his shoulder
into the recreation cage door, not knowing that defendants Nesbitt and Miller were in the
process of opening it. The opening door hit defendants Nesbit and Miller. Instead of

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We simply note here that where waivers of service of process are requested in3
accordance with Rule 4(d) of the Federal Rules of Civil Procedure, the defendants
arguably should accept service by mail in lieu of personal service absent good cause not
to, in order to avoid any possible sanctions. See Fed. R. Civ. P. 4(d).
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being taken immediately to the hospital for treatment of his head, neck, and eye injuries,
Webb was charged with “assault on staff” and placed in an isolation cell in the SHU. He
was transferred to a different facility where he was disciplined. Webb claimed that his
Eighth Amendment rights to adequate medical care and to be protected from assaults by
other inmates were violated. He also claims Due Process and Equal Protection violations
with respect to his transfer, disciplinary hearing and sanctions. He seeks damages.
Webb initially sued the defendants in their individual capacities. But he had
problems effecting proper service on the named defendants from 2004 through November
2005. The original Complaint named DeRosa and Motley. In May 2005, Webb amended
his Complaint adding five defendants. The Marshal’s Service, however, only served
DeRosa and Motley. The District Court intervened in July 2005, directing the Clerk to
forward the appropriate summonses to the Marshal’s Service. In November 2005, when
the defendants had not been served, the District Court ordered the Assistant United States
Attorney (AUSA) to provide Webb with information regarding the whereabouts of the
individual defendants. In a separate order, the District Court also granted the AUSA’s
motion challenging Webb’s service by mail of defendants DeRosa and Motley, and struck
Webb’s proof of service and his affidavit. Apparently, service of process was not3

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The Appellees explain that Webb filed an appeal before the AUSA could provide4
Webb with information regarding the defendants’ whereabouts pursuant to the District
Court’s order. See Appellate Brief at 10. Webb’s appeal was from the order striking the
returns of service for defendants DeRosa and Motley. Contrary to the Appellees’
assertions, the pendency of the interlocutory appeal did not automatically stay the case,
see e.g. 28 U.S.C.A. § 1292(b), and it had no effect on the standing District Court order
directing the AUSA to provide certain information to Webb.
Webb amended his Complaint several times. We will refer to the amended and5
supplemented Complaint simply as the “Amended Complaint.”
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attempted on any of the defendants after November 15, 2005.4
In April 2006, Webb filed a motion seeking to have his Amended and
Supplemented Complaint be deemed a suit against the United States Bureau of Prisons
(BOP) and asked the District Court to deem the BOP as having been properly served.5
The defendants, in their official capacities, filed a motion to dismiss (to which Webb
responded), claiming that the Bivens claims against the defendants in their official
capacities were barred by the doctrine of sovereign immunity and that Webb failed to
exhaust his administrative remedies under 42 U.S.C. § 1997e and under the Federal Tort
Claims Act. In November 2006, the District Court granted Webb’s motion and partially
granted the defendants’ motion to dismiss. The District Court dismissed with prejudice
Webb’s Amended Complaint against the BOP, the United States, and all named
individuals in their official capacities. Although the District Court had deemed Webb’s
Amended Complaint as naming the defendants solely in their official capacities, the
District Court denied the motion to dismiss as to all of the named defendants in their
individual capacities, noting that it was not clear whether Webb had abandoned these

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We construe Webb’s “response to the LD letter,” filed in this Court on December 11,6
2006, as a timely filed notice of appeal from the District Court’s December order.
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claims or whether the defendants were properly personally served. Webb timely
appealed. In December 2006, pursuant to a telephone status conference with the parties,
the District Court entered an order dismissing the matter in its entirety with prejudice and
without explanation.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the order6
dismissing Webb’s action is plenary. See Gould Elecs., Inc. v. United States, 220 F.3d
169, 176 (3d Cir. 2000); Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). Because the
District Court’s order did not reveal the grounds for dismissal of the defendants in their
individual capacities and it appeared from the docket that the individuals had not yet been
served, we directed the parties to address, among any other issues they wished to raise in
their briefs, whether the District Court dismissed the Amended Complaint with prejudice
for failure to effect service of process and, if so, whether the District Court erred in doing
so given the documented problems with effecting service that appeared not to be
attributable to Webb. The parties have responded and the matter is ripe for disposition.
With admirable forthrightness, Webb states in his Supplemental Brief that “the
issue of service of process is no longer an issue in the instant case.” He admits that he
abandoned his Bivens claims against the defendants in their individual capacities and that
he sought to sue “the Bureau of Prisons/United States of America and seven of the

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defendants in their official capacities....” According to Webb’s representations, the
District Court correctly deemed his Amended Complaint as having been filed against the
defendants in their official capacities only. Thus, the sole issue before us is whether the
District Court properly dismissed the Amended Complaint with prejudice as to the
defendants in their official capacities. We conclude that the Amended Complaint was
properly dismissed. An action against prison officials in their official capacities
constitutes an action against the United States and Bivens claims against the United States
are barred by sovereign immunity, absent an explicit waiver. See Corr. Servs. Corp. v.
Malesko, 534 U.S. 61, 72 (2001); F.D.I.C. v. Meyer, 510 U.S. 471, 486 n. 11 (1994);
Jaffee v. United States, 592 F.2d 712, 717 (3d Cir. 1979). Thus, we conclude that the
District Court correctly dismissed with prejudice Webb’s Bivens claims for damages.
Moreover, to the extent that Webb seeks relief under the Federal Tort Claims Act
(FTCA), 28 U.S.C. §§ 2671-2680, his constitutional tort claims against the United States
fail as a matter of law. See F.D.I.C., 510 U.S. at 477-78. State law provides the source of
substantive liability under the FTCA. Id. at 478. Because federal law is the source of
liability for the deprivation of a federal constitutional right, the United States is not liable
under § 1346(b) for constitutional tort claims. See id. at 477-78.
We have thoroughly reviewed Webb’s remaining arguments in his brief and reply
and we find them to be meritless. Accordingly, we will affirm the judgment of the
District Court.

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