                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-30-2007

Amadi v. Fort Dix Health Ser
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3318




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"Amadi v. Fort Dix Health Ser" (2007). 2007 Decisions. Paper 165.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/165


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ALD-45                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 07-3318
                                     ___________

                         OKECHUKWU MUMMEE AMADI,
                                            Appellant

                                           v.

  FCI FORT DIX HEALTH SERVICES, East, Fort Dix, New Jersey; T CATLETT-
 RAMOS, Health Service Administrator; WARDEN ART BEELER; VALENZUELA,
M.D.; LUISA BASILE, MLP Supervisory Physician Assistant; ASSOCIATE WARDEN
  DARLENE ALEXANDER (AW); AUGUSTINE FEL, Assistant Health; MLP N.
        LORENZO, Physician Assistant; A. MANISCALCO, Officer on duty
                  ____________________________________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                             (D.C. Civil No. 04-cv-02712)
                     District Judge: Honorable Robert B. Kugler
                     ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   November 8, 2007

            Before: SLOVITER, FISHER and HARDIMAN, Circuit Judges

                              (Filed: November 30, 2007)
                                       _________

                                       OPINION
                                      _________

PER CURIAM

     Okechukwu Mummee Amadi appeals from the order of the United States District
Court for the District of New Jersey granting the defendants’ motion to dismiss for lack

of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2). Because we

conclude that the appeal lacks an arguable basis, we will dismiss it pursuant to 28 U.S.C.

§ 1915(e)(2)(B).

                                             I.

       This case arose out of an alleged incident from March 1997. At that time, Amadi

was incarcerated by the Bureau of Prisons (“BOP”) at FCI Fort Dix, New Jersey. Amadi

claimed that he was prescribed eye drops for an eye infection caused by working at the

institution’s textile facility. On March 30, 1997, Amadi went to Health Services to refill

the prescription, but the physician assistant allegedly gave him “carbamoxide” ear drops

instead of the prescribed medicine. After he applied the ear drops to his left eye, he

allegedly felt a severe burning pain. According to Amadi, the use of the ear drops

resulted in serious and permanent injuries to his eyes, and his medical condition has

continued to deteriorate due to willful neglect. Amadi left FCI Fort Dix in 2000, at which

time he was transferred the custody of Department of Homeland Security’s Immigration

and Customs Enforcement (“ICE”).

       Amadi’s initial complaint, executed on June 3, 2004 and received by the District

Court on June 7, 2004, named nine defendants. He paid his filing fee, but the District

Court ordered the United States Marshal’s Service (“USMS”) to serve defendants. On

March 21, 2005, Amadi filed an amended complaint, which expressly abandoned his

claims against four unserved individual defendants, including the physician assistant

                                             2
allegedly responsible for giving him the harmful medication. Therefore, the remaining

defendants in this case were FCI Fort Dix Health Services as well as four individual

defendants who were allegedly served by the USMS via certified mail: (1) T. Catlett-

Ramos; (3) Art Beeler; (4) Luisa Basile; and (5) Darlene Alexander (“Individual

Defendants”). Invoking, inter alia, the Bivens doctrine and 42 U.S.C. § 1983, Amadi

sought compensatory and punitive damages as well as injunctive and declaratory relief.

On December 22, 2005, the District Court denied his motion for default judgment, stating

that Amadi had failed to serve the United States Attorney and the Attorney General of the

United States pursuant to Federal Rule of Civil Procedure 4(i). Following this ruling,

Amadi served both individuals by certified mail.

       Defendants moved to dismiss pursuant to Federal Rules of Procedure 12(b)(1),

12(b)(2), and 12(b)(6). On November 15, 2006, the District Court granted the motion as

to FCI Fort Dix Health Services and denied it without prejudice as to the Individual

Defendants. Liberally construing the amended complaint to include a Federal Tort

Claims Act (“FTCA”) claim against the United States, the District Court found that it

lacked jurisdiction over such a claim because Amadi failed to file the requisite tort notice

with the BOP. Vacating its earlier order requiring the USMS to serve process, it directed

Amadi to “serve the named [Individual Defendants, in their individual capacities,] in this

action within 120 days in accordance with Federal Rule of Civil Procedure 4(m).”

(11/15/06 Order at 2.) Amadi then allegedly served the Individual Defendants by

certified mail, receiving back apparently executed return receipts.

                                             3
       Defendants moved again to dismiss pursuant to Rules 12(b)(1), 12(b)(2), and

12(b)(6) and, in the alternative, for summary judgment under Federal Rule of Civil

Procedure 56. The District Court granted the motion to dismiss pursuant Rule 12(b)(2)

on July 18, 2007. It found that Amadi failed to serve the Individual Defendants in their

individual capacities in a manner consistent with Federal Rule of Civil Procedure

4(i)(2)(B). Amadi accordingly filed a timely notice of appeal, and the Court granted his

request to proceed in forma pauperis. He has further requested that counsel be appointed.

                                             III.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Because

Amadi is proceeding in forma pauperis, we must review his appeal to determine whether

it should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). This Court dismisses an

appeal on such grounds if it “lacks an arguable basis in either law or in fact.” Neitzke v.

Williams, 490 U.S. 319, 325 (1989). Amadi’s appeal lacks such a basis.

       The District Court granted the defendants’ motion to dismiss as to the Individual

Defendants because Amadi allegedly failed to serve them in their individual capacities.

See, e.g., Fed. R. Civ. P. 4(i)(2)(B) (stating service of process requirements for “an officer

or employee of the United States sued in an individual capacity”). Although the District

Court’s service of process ruling was arguably incorrect with respect to two of the

Individual Defendants,1 we find that the dismissal was nevertheless proper based on the


   1
     As the District Court correctly noted, Federal Rule of Civil Procedure 4(i)(2)(B)
requires a plaintiff to serve a federal employee named in his or her individual capacity “in

                                              4
statute-of-limitations grounds also raised by defendants. See, e.g., Erie Telecomms. v.

City of Erie, 853 F.2d 1084, 1089 & n.10 (3d Cir. 1988) (stating that Court may affirm

correct decision on grounds different than those used by district court). Specifically,

Amadi’s constitutional and tort claims against the Individual Defendants were barred by

the applicable, two-year statute of limitations. See, e.g., N.J. Stat. Ann. § 2A:14-2(a);

Napier v. Thirty or More Unidentified Fed. Agents, 855 F.2d 1080, 1087 & n.3 (3d Cir.

1988). His claims arose out of an alleged incident from March 1997, which was more

than seven years before he executed and filed his initial complaint in District Court.

       In the District Court, Amadi claimed that the statute of limitations itself was tolled.

However, the “continuing violation” doctrine did not save his otherwise untimely claims

because the alleged March 1997 incident constituted a discrete and independently

actionable act, thereby immediately triggering the limitations period. See, e.g., O’Connor

v. City of Newark, 440 F.3d 125, 129 (3d Cir. 2006) (“If the allegations in [plaintiff’s]

complaint are discrete, then each gave rise to a cause of action at the time it occurred.

That cause of action persisted for two years and then lapsed.”). Furthermore, the more



the manner prescribed by [Federal Rule of Civil Procedure] Rule 4(e).” The District
Court found that Amadi failed to serve the Individual Defendants pursuant to Rule 4(e),
stating that this rule does “not permit service by certified mail.” (7/18/07 Opinion at 4.)
However, neither the District Court nor the parties mentioned that Rule 4(e)(1) expressly
authorizes service “pursuant to the law of the state . . . in which service is effected.” Both
Catlett-Ramos and Beeler were “served” in North Carolina, and North Carolina law
apparently permits service of process “[b]y mailing a copy of the summons and of the
complaint, registered or certified mail, return receipt requested, addressed to the party to
be served, and delivering to the addressee.” N.C. Gen. Stat. § 1A-1, R. 4(j)(1)(c).

                                              5
recent misconduct alleged by Amadi did not implicate the Individual Defendants because

he has had no contact with either them or FCI Fort Dix since his transfer to ICE custody

in 2000. Amadi’s alleged attempts to exhaust administrative remedies under Prison

Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), and unsuccessful requests for

compensation under Inmate Compensation Act (“IACA”), 18 U.S.C. § 4126, likewise

failed to toll the limitations period. Specifically, his grievances and appeals filed

pursuant to the BOP’s administrative remedy scheme were apparently resolved by June

2000, but he nevertheless did not commence his civil action for another four years.

       In addition to precluding his claims against the Individual Defendants, the statute

of limitations also barred any claims by Amadi against either FCI Fort Dix Health

Services or the United States. Furthermore, the District Court correctly found that no

Bivens-type cause of action for alleged constitutional violations was available against a

federal agency.2 See, e.g., F.D.I.C. v. Meyer, 510 U.S. 471, 477-86 (1994). The

sovereign immunity doctrine precludes a federal court from exercising jurisdiction over

an FTCA claim against the United States unless the plaintiff presents a notice of tort

claim to the relevant federal agency within two years of the underlying claim’s accrual.

See, e.g., 28 U.S.C. §§ 2401(b), 2675(a); Deutsch v. United States, 67 F.3d 1080, 1091

(3d Cir. 1995). Amadi never submitted even an untimely notice of tort claim to the BOP.



   2
     A constitutional claim for damages under Bivens may be maintained only against
individual federal agents or employees. See, e.g., Meyer, 510 U.S. at 483-86.


                                              6
His alleged efforts to exhaust his administrative remedies as required by the PLRA and to

obtain compensation under the IACA did not constitute compliance with this fundamental

jurisdictional requirement. Therefore, the District Court, liberally construing Amadi’s

amended complaint as containing an FTCA claim against the United States, properly

found that it lacked jurisdiction to hear such a claim.

       Finally, the District Court properly denied Amadi’s motion for default judgment.

At the very least, such a motion was premature given that he had yet to serve the United

States as required by Federal Rule of Civil Procedure 4(i). A default judgment would

also have clearly been inappropriate given the lack of merit of his underlying claims.3

                                             III.

       Accordingly, because Amadi’s appeal lacks any arguable basis, we will dismiss it

pursuant to § 1915(e)(2)(B). We likewise deny his motion for appointment of counsel.

See, e.g., Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993) (stating that, in deciding

whether to appoint counsel, court must first determine if case has arguable merit).




   3
     The District Court also was correct that 42 U.S.C. § 1983, cited by Amadi, had no
applicability to claims against a federal agency and federal employees. See, e.g., Brown
v. Philip Morris, Inc., 250 F.3d 789, 800 (3d Cir. 2001).

                                              7
