                                                              NOT PRECEDENTIAL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
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

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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

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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




                                                4
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).
                                             5
       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

                                             6
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.




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