DRUMMOND v. HUTCHINSON et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KEITH DRUMMOND, 	) 	Civil Action No. 23-336
)
Plaintiff, 	)
) 	District Judge Marilyn J. Horan
v. 	) 	Magistrate Judge Kezia O. L. Taylor
)
WARDEN J. HUTCHINSON, et al., 	)
) 	ECF No. 24
Defendants. 	)
REPORT AND RECOMMENDATION
I. 	RECOMMENDATION
For the reasons that follow, it is respectfully recommended that Defendants’ Motion to
Dismiss, ECF No. 24, be GRANTED. 	Plaintiff’s Bivens claim against H.S.A. Walters; Doctor
Walt; P.A. Miller; and Nurse Krebbs, (“Medical Defendants”), should be dismissed with prejudice
as amendment would be futile.
It is further recommended that Plaintiff’s Eighth Amendment conditions claim asserted
against Warden J. Hutchinson, FCI McKean Facilities Department Head; Labenne, Ms. O’Clare;
Weseman, and C/O Galbraith, (“Corrections Defendants”), should be dismissed with prejudice
because Plaintiff failed to exhaust his administrative remedies. Additionally, the undersigned will
exercise the Court’s authority pursuant to Section 1915A and Section 1915(e)(2)(B)(ii) and sua
sponte dismiss the Compound Supervising Officer from this case due to Plaintiff’s failure to
exhaust his administrative remedies.
Finally, it is further recommended that to the extent Plaintiff is asserting an FTCA claim
related to the icy conditions of the sidewalk, the claim should be dismissed, albeit without
prejudice to Plaintiff filing an amended complaint against an appropriate Defendant. 	Plaintiff
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should be afforded twenty-one (21) days to file the amended complaint. Failure to timely file an
amended complaint should result in the dismissal of any potential FTCA claim, with prejudice.
II. 	REPORT
A. 	Procedural Background
Plaintiff Keith Drummond (“Plaintiff”) is a pro se federal prisoner currently housed at FCI-
McKean, where the events giving rise to this action occurred. As defendants, Plaintiff names Janet
Hutchinson, FCI-McKean Warden; Facilities Department Head; Trust Fund Supervisor Labenne;
Safety Department Supervisor Ms. O’Clare; Special Investigation Service (“S.I.S.”) Supervisor
Weseman; and C.O. Galbraith, (“Corrections Defendants”). Plaintiff also names Health Services
Administrator 	(“H.S.A.”) 	Walter; 	Dr. 	Walt; 	P.A. 	Miller; 	and 	Nurse 	Krebbs, 	(“Medical
Defendants”). ECF No. 16 ¶¶ 4-141; ECF No. 24.2 Plaintiff initiated this civil rights case, pursuant
to Bivens v. Six Unknown Named Agents, 403 U.S. 338 (1971), with the filing of a Complaint, but
due to his failure to include a Motion to Proceed in forma pauperis, the case was administratively
closed. 	ECF Nos. 1-5. 	After months of attempting to provide the Court with the necessary
documentation, Plaintiff finally submitted the required forms, was granted IFP status, and his
Complaint was docketed on August 27, 2024. 	ECF Nos. 6-13, 16. 	After seeking, and being
granted, extra time to respond, Defendants filed their Motion to Dismiss on March 11, 2025.3 ECF
1 “Compound Supervising Officer” is identified in paragraph 6; however, this defendant remains
unrepresented.
2 Counsel for Defendants included Defendants’ names in ECF No. 21, which, at times, differ from
how Plaintiff has identified them in his Complaint. 	For purposes of the instant Report and
Recommendation, Defendants will be referred to by the name and/or title as set forth by Plaintiff.
3 	Pursuant to the Order at ECF No. 26, the Court declined to convert Defendants’ Motion to
Dismiss to a Motion for Summary Judgment, and advised that the medical records attached to the
Motion would not be considered. ECF No. 26. Plaintiff was advised that his response should be
to Defendants’ arguments related to subject matter jurisdiction and failure to state a claim. Id.
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Nos. 21, 22, 24. Plaintiff filed his Response in Opposition on April 7, 2025, and soon thereafter
filed an amended document, entitled “Plaintiff’s Response to Government’s Memorandum in
Support.” ECF Nos. 29, 30.4 No replies having been filed, Defendants’ Motion to Dismiss is ripe
for review.
B. 	Factual Background
The following facts are accepted as true, for purposes of ruling on the pending motion, and
are viewed in a light most favorable to Plaintiff. On January 3, 2022, Plaintiff slipped and fell on
ice that had formed outside of the Commissary Building, after an inmate maintenance crew sprayed
water to clean up the sidewalks. ECF No. 16 ¶ 16. Plaintiff was not cautioned about the possibility
of ice accumulating outside of the Commissary as there was no signage or warnings of any kind
posted or otherwise provided to the inmates. 	Id. 	After getting up, and gathering his things,
Plaintiff began to make his way to his housing unit. Id. ¶ 18. Noticing that Plaintiff’s backside
was wet, an officer stationed at the “Shake-Down Shack” asked Plaintiff what happened, but after
hearing about Plaintiff’s fall and being told that Plaintiff was not okay, the officer did not help
Plaintiff get medical help, and instead directed him to his housing unit. Id. After arriving on his
housing unit, Plaintiff told his unit officer about his fall, the officer called the medical department
and permitted Plaintiff to go to there. Id.
Once in the medical department, Plaintiff claims that he “was informed that his blood
pressure was too high and he was not eligible to receive an injection to address his pain.” Id. ¶ 19.
Plaintiff was advised to take a hot shower and Tylenol, and if he did not feel better, to sign up for
sick call. Id. Plaintiff attempted to present to sick call, but was turned away and told that he would
4 Plaintiff submits that the document at ECF No. 29 was a rough draft of the filing docketed at
ECF No. 30. 	See ECF No. 30-1. 	Accordingly, per Plaintiff’s request, ECF No. 29 will not be
considered.
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need to send his “PA” a request. Id. ¶ 20. Plaintiff sent the request but was not scheduled to see
the PA until the following week, and when he arrived at the appointment, he was told that “[his]
visit was canceled for unknown reasons.” Id. No staff or officers inquired into his condition or
pain level. Id. Plaintiff claims that he sought treatment via request forms and electronic messages,
but because he was not properly treated – due to the health service department’s “complete lack of
competent, knowledgeable, and quality medical treatment and/or attention[;]” – he remained in
pain and discomfort for the next eighteen months. Id.
As a result of this fall, Plaintiff “suffered severe injury to his head, neck, and back; all of
which continue to cause debilitating pain and suffering to this day.” Id. ¶ 16. Plaintiff brings an
Eighth Amendment cruel and unusual punishment claim and seeks declaratory, injunctive, and
monetary relief. Id. ¶¶ 25-33.
C. 	Legal Standard
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of the complaint. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding
a Rule 12(b)(6) motion to dismiss, the court must accept as true all well-pled factual allegations in
the complaint and views them in a light most favorable to the plaintiff. See U.S. Express Lines
Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). 	Because Plaintiff is proceeding pro se, the
allegations in the complaint must be held to “less stringent standards than formal pleadings drafted
by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521 (1972). The “court[] generally consider[s]
only the allegations in the complaint, exhibits attached to the complaint, matters of public record,
and documents that form the basis of a claim” when considering a motion to dismiss. Lum v. Bank
of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004) (citing In re Burlington Coat Factory Sec. Litig., 114
F.3d 1410, 1426 (3d Cir. 1997)).
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In making its determination under Rule 12(b)(6), the court is not opining on whether the
plaintiff is likely to prevail on the merits; rather, the plaintiff must only present factual allegations
sufficient “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp.
235-36 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009). Furthermore, a complaint
should only be dismissed pursuant to Rule 12(b)(6) if it fails to allege “enough facts to state a
claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 (rejecting the traditional
Rule 12(b)(6) standard established in Conley v. Gibson, 355 U.S. 41, 78 (1957)).
While a complaint does not need detailed factual allegations to survive a motion to dismiss,
a complaint must provide more than labels and conclusions. See Twombly, 550 U.S. at 555. A
“formulaic recitation of the elements of a cause of action will not do.” 	Id. (citing Papasan v.
Allain, 478 U.S. 265, 286 (1986)). 	Moreover, a court need not accept inferences drawn by a
plaintiff if they are unsupported by the facts as explained in the complaint. See California Pub.
Emp. Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower
Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the court accept legal conclusions
disguised as factual allegations. 	See Twombly, 550 U.S. at 555; McTernan v. City of York,
Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to legal conclusions.”). Put another way,
in assessing a motion to dismiss, while the Court must view the factual allegations contained in
the pleading at issue as true, the Court is “not compelled to accept unwarranted inferences,
unsupported conclusions or legal conclusions disguised as factual allegations.” 	Baraka v.
McGreevey, 481 F.3d 187, 211 (3d Cir. 2007). 	Expounding on the Twombly and Iqbal line of
cases, the Third Circuit has articulated the following three-step approach:
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First, the court must “tak[e] note of the elements a plaintiff must
plead to state a claim.” Second, the court should identify allegations
that, “because they are no more than conclusions, are not entitled to
the assumption of truth.” 	Finally, “where there are well-pleaded
factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement for
relief.”
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v. Warminster
Twp., 629 F.3d 121, 130 (3d Cir. 2010)). 	This determination is “a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556
U.S. at 679.
“The Court has a statutory responsibility to review complaints filed by prisoners and by
those who have been granted leave to proceed IFP to determine if the complaint states a valid claim
for relief. 	See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A.” 	James v. Harry, No. 1:25-CV-00059,
2025 WL 1869476, at *1 (W.D. Pa. May 29, 2025), report and recommendation adopted, No.
1:25-CV-59, 2025 WL 1869256 (W.D. Pa. July 7, 2025). Under 28 U.S.C. § 1915(e)(2)(B)(ii),
the Court is required to dismiss an action, initiated by a plaintiff proceeding IFP, that (1) is
frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks
monetary relief from a defendant who is immune from such relief. Id. Section 1915A requires
the same undertaking, but is applicable only to prisoner plaintiffs. 	28 U.S.C. § 1915A(a). 	A
frivolous complaint is one which is either based on an indisputably meritless legal theory (such as
when a defendant enjoys immunity from suit) or based upon factual contentions which are clearly
baseless (such as when the factual scenario described is fanciful or delusional). 	Neitzke v.
Williams, 490 U.S. 319, 327 (1989). 	The determination of whether a complaint fails to state a
claim upon which relief may be granted is governed by the same standard applicable to motions
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to dismiss under Rule 12(b)(6). D’Agostino v. CECOM RDEC, 436 F. App’x 70, 72 (3d Cir. 2011)
(citing Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999)).
Finally, the Court recognizes that in a civil rights action, when dismissing a case for failure
to state a claim, a court must give the plaintiff an opportunity to amend a deficient complaint,
regardless of whether the plaintiff requests to do so, unless amendment would be inequitable or
futile. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir.
2007).
D. DISCUSSION
a. 	Immunity
Plaintiff brings his claims against Defendants in both their individual and official
capacities. ECF No. 16 ¶ 15. “An action against government officials in their official capacities
constitutes an action against the United States[.]” Lewal v. Ali, 289 F. App’x 515, 516 (3d Cir.
2008). Sovereign immunity bars constitutional claims under Bivens, absent an explicit wavier and
the United States has not waived its sovereign immunity for such claims. Webb v. Desan, 250 F.
App’x 468, 471 (3d Cir. 2007). 	Accordingly, it is respectfully recommended that any claims
brought against Defendants in their official capacities be dismissed with prejudice as amendment
would be futile.
b. 	Medical Defendants
Plaintiff brings an Eighth Amendment claim against Medical Defendants, for inadequate
medical care following his January 3rd slip and fall. ECF No. 16. To establish a Bivens claim, a
plaintiff must show “1) a person acting under color of law committed the conduct at issue and 2)
the conduct deprived the plaintiff of a right, privilege, or immunity protected by the U.S.
Constitution or laws of the United States.” Bivens, 403 U.S. at 395. Bivens provides a damages
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remedy for constitutional claims committed by federal officials in very limited situations. Egbert
v. Boule, 596 U.S. 482, 486 (2022) (Supreme Court precedent “made clear that, in all but the most
unusual circumstances, prescribing a cause of action is a job for Congress, not the courts[.]”).
The United States Supreme Court has only recognized an implied private action against
federal officials for constitutional violations in the following three circumstances: (1) in Bivens,
recognizing implied cause of action under the Fourth Amendment right against unreasonable
searches and seizures; (2) in Davis v. Passman, 442 U.S. 228 (1979) for an employment-based
gender discrimination claim under the Fifth Amendment Due Process Clause; and (3) in Carlson
v. Green, 446 U.S. 14 (1980) for claims brought by federal inmates against federal prison officials
for inadequate medical care under the Eighth Amendment Cruel and Unusual Punishments Clause.
See Ziglar v. Abbasi, 582 U.S. 120, 131 (2017) (“These three cases—Bivens, Davis, and Carlson—
represent the only instances in which the Court has approved of an implied damages remedy under
the Constitution itself.”). 	Since Bivens, the Supreme Court “has consistently refused to expand
Bivens actions beyond these three specific contexts.” Mack v. Yost, 968 F.3d 311, 318 (3d Cir.
2020). Just this year, our Court wrote:
“To preserve the separation of powers, the Court has ‘consistently
rebuffed’ efforts to extend Bivens further. ... That makes sense. The
Constitution entrusts Congress, not the courts, with the power to
create new federal causes of action and remedies.” Dongarra v.
Smith, 27 F.4th 174, 180 (3d Cir. 2022) (omitting internal citation);
see also Egbert, 596 U.S. at 491 (stating, “recognizing a cause of
action under Bivens remedy is ‘a disfavored’ judicial activity.”)
(quoting Ziglar, 582 U.S. at 135); Xi v. Haugen, 68 F.4th 824, 832
(3d Cir. 2023) (“In the fifty-two years since Bivens was decided,
however, the Supreme Court has pulled back the reins to what
appears to be a full stop and no farther.”).
Walker v. United States, No. 3:23-CV-00220, 2025 WL 1159971, at *8 (W.D. Pa. Feb. 10, 2025),
report and recommendation adopted, No. 3:23-CV-220, 2025 WL 1303867 (W.D. Pa. May 6,
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2025) (Haines, J.). Consistent with this guidance, “‘the Supreme Court has set forth a two-step
inquiry to determine the availability of Bivens remedies in a particular case.’ Kalu, 113 F.4th at
326. ‘First, we ask whether the case presents a new Bivens context—i.e., whether the case is
different in a meaningful way from previous Bivens cases decided by the Supreme Court.’ Id.
(cleaned up).” Muniz v. United States, No. 24-1028, 2025 WL 2394632, at *3 (3d Cir. Aug. 13,
2025). Recently, the Third Circuit Court of Appeals explained:
While the Court has not outlined “an exhaustive list of differences
that are meaningful enough to make a given context a new one,”
factors to be considered include:
the rank of the officers involved; the constitutional right at
issue; the generality or specificity of the official action; the
extent of judicial guidance as to how an officer should
respond to the problem or emergency to be confronted; the
statutory or other legal mandate under which the officer was
operating; the risk of disruptive intrusion by the Judiciary
into the functioning of other branches; or the presence of
potential special factors that previous Bivens cases did not
consider.
Kalu v. Spaulding, 113 F.4th 311, 326 (3d Cir. 2024). If a new context exists, “‘we proceed to the
second step of the inquiry and ask whether there are ‘special factors counselling hesitation’ in
extending Bivens.’ Id. (quoting Abbasi, 582 U.S. at 136, 137 S.Ct. 1843).” 	Muniz, 2025 WL
2394632, at *4. 	In other words, “a Bivens remedy is unavailable if there are ‘special factors’
indicating that the Judiciary is at least arguably less equipped than Congress to weigh the costs
and benefits of allowing a damages action to proceed.” Egbert, 596 U.S. at 483 (cleaned up). “If
there is even a single reason to pause before applying Bivens in a new context, a court may not
recognize a Bivens remedy.” Id. at 491 (cleaned up). In Egbert, the Supreme Court explained that
“[w]hile Bivens and this case do involve similar allegations of excessive force and thus arguably
present “almost parallel circumstances” or a similar “mechanism of injury,” Ziglar, 582 U. S., at
––––, 137 S.Ct., at 1859, these superficial similarities are not enough to support the judicial
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creation of a cause of action.” Egbert, 596 U.S. at 495. The Court reiterated that, when presented
with a Bivens inquiry, “a court must ask “[m]ore broadly” if there is any reason to think that
“judicial intrusion” into a given field might be “harmful” or “inappropriate.” If so, or even if there
is the “potential” for such consequences, a court cannot afford a plaintiff a Bivens remedy.” Id. at
496 (cleaned up).
Plaintiff argues that his deliberate indifference claim falls within the Bivens context
established in Carlson. 	There, a deceased inmate’s family sued prison officials after they
disregarded a treating physician’s recommendation and kept the prisoner in a facility that was ill
equipped to address the prisoner’s asthma. 	Carlson, 446 U.S. at 16 n.1. 	Following a medical
emergency, the prison officials “failed to give him competent medical attention for eight hours
after an asthmatic attack, administered contraindicated drugs which made his attack more severe,
attempted to use a respirator known to be inoperative which further impeded his breathing, and
delayed for too long a time his transfer to an outside hospital.” Id. 	Consequently, the prisoner
died. Id.
Here, Plaintiff slipped on ice, and as a result, avers that he “suffered severe injury to his
head, neck, and back; all of which continue to cause debilitating pain and suffering to this day.”
ECF No. 16 ¶ 16. According to his own submissions, Plaintiff was evaluated by medical staff the
same day. 	ECF No. 16-1 at 5, 7. 	Plaintiff was scheduled to be seen several times thereafter;
however, due to the prison being on lockdown, his appointments needed to be rescheduled. Id. at
21. Nevertheless, Plaintiff’s requests to health services were responded to in a timely manner, and
when he advised the medical staff that he was out of Tylenol, the prescription was refilled. Id. at
18-29, 31. Additionally, as evidenced in the exhibits included with Plaintiff’s Complaint, Plaintiff
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also received additional medical care, both within FCI-McKean as well as outside facilities, where
he underwent imaging, including an MRI. See ECF No. 16-2.
Undoubtedly, Plaintiff’s deliberate indifference claim regarding the injuries he suffered
from a slip and fall is distinct from the claims presented in Carlson. 	As such, Plaintiff’s case
presents a new context, and the analysis proceeds to determining whether “there are special factors
counselling hesitation in extending Bivens.” 	Muniz, 2025 WL 2394632, at *4 (cleaned up).
Indeed, “[a]ny special factor—even one—suffices to foreclose a new Bivens cause of action. If
there is a single reason to pause, then we may not recognize a Bivens remedy.” 	Fisher v.
Hollingsworth, 115 F.4th 197, 207 (3d Cir. 2024) (internal citations omitted). Because there exists
“the presence of potential special factors that previous Bivens cases did not consider,” Ziglar, 582
U.S. at 136, Plaintiff’s Bivens claim must fail. Specifically, the existence of BOP’s administrative
remedy program precludes a Bivens remedy. Fisher, 115 F.4th at 208. “An alternative remedy
need not be as effective as an individual damages remedy to foreclose a Bivens extension.” Id.
(internal citations omitted).
Accordingly, since it is undisputed that an administrative remedy program existed at FCI-
McKean at all relevant times, and Plaintiff availed himself of it, see ECF No. 16-1 at 1-17, it is
respectfully recommended that Plaintiff’s Bivens claim against the Medical Defendants be
dismissed. This dismissal should be with prejudice because any attempt to amend this deliberate
indifference claim would be futile.5
5 	Having recommended dismissal of Plaintiff’s Bivens claim, the Court need not address the
plausibility of Plaintiff’s Eighth Amendment deliberate indifference claim nor Defendants’
qualified immunity argument.
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c. 	Corrections Defendants
Defendants submit that if Plaintiff’s Complaint is read to include an Eighth Amendment
claim related to the unsafe condition of the sidewalk, the claim fails because Plaintiff failed to
exhaust his administrative remedies. ECF No. 25 at 17-19.
The Federal Bureau of Prisons (“BOP”) has a four-step administrative-remedies process
federal inmates must complete to satisfy the Prison Litigation Reform Act’s (“PLRA”), 42 U.S.C.
§1997(e)(a) exhaustion requirement. 	See 28 C.F.R. §§ 542.10-542.19. 	First, the prisoner must
informally present an issue of concern to the staff for collaborative resolution. See 28 C.F.R. §
542.13(a). 	Second, if the prisoner is dissatisfied with the informal resolution of the issue, the
prisoner must submit a formal, written Administrative Remedy Request (“ARR”) on a BP–9 form
for resolution by the Warden within 20 days following the date on which the basis for the Request
occurred. See 28 C.F.R. § 542.14. Third, if the prisoner is unsatisfied with the Warden’s response,
the prisoner may submit an appeal on a BP–10 form to the Regional Director within 20 days from
the date that the Warden signed the response. See 28 C.F.R. § 542.15. Fourth, and final, if the
prisoner is not satisfied with the Regional Director’s response, then the prisoner may submit a final
appeal on a BP-11 form to the General Counsel at the Central Office of Appeals within 30 calendar
days of the Regional Director’s signed response. See id.
Here, Defendants do not take issue with whether or not Plaintiff followed the necessary
steps in order to properly exhaust. 	Rather, they submit that based on the grievance documents
attached to Plaintiff’s Complaint, his ARR does not relate to the condition of the sidewalk that
resulted in his injuries. ECF No. 25 at 19 citing ECF No. 16-1 at 2-38. While Plaintiff describes
the icy condition of the sidewalk in his submissions, the concerns raised in the ARR pertain to the
medical care that Plaintiff claims to have been denied. Id. “[W]here a prisoner’s failure to exhaust
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under the PLRA is “apparent from the face of the complaint,” a district court may dismiss it on
that basis. Ray v. Kertes, 285 F.3d 287, 297 (3d Cir. 2002).” Talley v. Clark, 111 F.4th 255, 264
(3d Cir. 2024). 	Here, it is apparent from the face of the Complaint, which includes Plaintiff’s
ARR, that his “issue of concern” was the lack of proper medical care, and not the conduct of any
particular individual that resulted in the icy conditions of the sidewalk. 	As such, to the extent
Plaintiff is attempting to assert a constitutional claim that relates to the condition of the sidewalk,
it is respectfully recommended that the claim be dismissed for his failure to exhaust.6
Assuming, arguendo, that Plaintiff exhausted his administrative remedies, the asserted
Eighth Amendment claim against Corrections Defendants would nevertheless fail because it
presents a new Bivens context, and a special factor –the existence (and Plaintiff’s uncontested
utilization) of the BOP administrative process – counsels against an extension of the Bivens
remedy to this new context. See Section b., supra.
Albeit not clearly articulated in his Complaint, it appears that Plaintiff may be asserting a
negligence claim against Corrections Defendants relative to the icy conditions of the sidewalk that
resulted in his fall. ECF No. 16 ¶ 17; ECF No. 16-1 at 33; ECF No. 30 at 1, 3, 4. The Federal Tort
Claims Act (“FTCA”), 28 U.S.C. § 1346, authorizes suits against the United States “for injury or
loss of property, or personal injury or death caused by the negligent or wrongful act or omission
of any employee of the Government while acting within the scope of his office or employment,
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.” Id. § 1346(b)(1). “It
is well-settled that the only proper defendant for claims brought under the FTCA is the United
6 The dismissal of this claim would apply with equal force to the Compound Supervising Officer.
As such, the undersigned will exercise the Court’s authority pursuant to Section 1915A and Section
1915(e)(2)(B)(ii) and sua sponte dismiss this defendant from this case.
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States of America, and not a federal agency sued in its own name or individual federal employees
sued in their official capacities.” Dalessio v. U.S. Dep’t of Hous. & Urb. Dev., 528 F. Supp. 3d
341, 344 (E.D. Pa. 2021) (citing Bailey v. U.S. Marshals Serv. Headquarters, 426 F. App’x 44,
45-46 (3d Cir. 2011); CNA v. United States, 535 F.3d 132, 138 n.2 (3d Cir. 2008)). 	Here, the
United States is not a defendant and it is therefore respectfully recommended that Plaintiff’s
negligence claim, to the extent one is asserted, be dismissed. 	The dismissal should be without
prejudice to Plaintiff filing an amended complaint against an appropriate Defendant.
III. 	CONCLUSION
For the foregoing reasons, it is respectfully recommended that Defendants’ Motion to
Dismiss, ECF No. 24, be GRANTED. Plaintiff’s Bivens claim against Medical Defendants should
be dismissed with prejudice as amendment would be futile. 	It is further recommended that
Plaintiff’s Eighth Amendment conditions claim asserted against Corrections Defendants should be
dismissed with prejudice because Plaintiff failed to exhaust his administrative remedies.
Finally, it is recommended that to the extent Plaintiff is asserting an FTCA claim related
to the icy conditions of the sidewalk, the claim should be dismissed, albeit without prejudice to
Plaintiff filing an amended complaint against an appropriate Defendant. 	Plaintiff should be
afforded twenty-one (21) days to file the amended complaint. Failure to timely file an amended
complaint should result in the dismissal of any potential FTCA claim, with prejudice.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule
72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of
service of a copy of this Report and Recommendation to file objections. Any party opposing the
objections shall have fourteen (14) days from the date of service of objections to respond thereto.
Failure to file timely objections will constitute a waiver of any appellate rights.
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Dated: November 18, 2025.
BY THE COURT
/s/ Kezia O. L. Taylor_________________
KEZIA O. L. TAYLOR
United States Magistrate Judge
KEITH DRUMMOND
2460 DAWNLIGHT
COLUMBUS, OH 43211
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