DLD-193                                                        NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                      No. 15-3578
                                      ___________

                                 RICHARD P. KAPLAN,

                                                   Appellant

                                            v.

    MR. EBERT, Warden, FCI Allenwood; MR. SCHRADER, Counselor, FCI Allenwood;
                   JOHN DOE, Visitation Officer, FCI Allenwood
                    ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                         (D.C. Civil Action No. 3-14-cv-00605)
                     District Judge: Honorable Malachy E. Mannion
                      ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
          Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                     March 24, 2016

       Before:   CHAGARES, GREENAWAY, JR. and SLOVITER1, Circuit Judges

                               (Opinion filed May 3, 2016)



1
  The Honorable Dolores K. Sloviter participated in the decision in this case. Judge
Sloviter assumed inactive status on April 4, 2016 after the submission date, but before the
filing of the opinion. This opinion is filed by a quorum of the panel pursuant to 28
U.S.C. § 46(d) and Third Circuit I.O.P. Chapter 12.
                                        _________

                                        OPINION*
                                        _________

PER CURIAM

       Federal prisoner Richard Kaplan appeals pro se from the District Court’s decision

granting summary judgment against him in this civil action brought pursuant to Bivens v.

Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the

Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680, and the Freedom

of Information Act (“FOIA”), 5 U.S.C. § 552. For the reasons that follow, we will

summarily affirm the District Court’s decision.

                                             I.

       Kaplan is currently serving a federal prison sentence for using an interstate

commerce facility and the mail in an attempt to commit a murder for hire, in violation of

18 U.S.C. § 1958. From May 2010 to February 2012, he was incarcerated at FCI

Allenwood Medium (“Allenwood”) in White Deer, Pennsylvania. In March 2014, he

filed a pro se complaint in the District Court against three Allenwood prison officials —

the warden, a counselor, and a John Doe “visitation officer.” Kaplan alleged, inter alia,

that he had been denied an attorney visit in August 2010, that the defendants had

conspired against him in several respects, that certain documents were not provided to


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                              2
him after he made requests under FOIA, and that he had been framed and falsely

imprisoned for the aforementioned murder-for-hire charge. In light of these allegations,

he sought $20 million from each defendant. Kaplan also asked the District Court to

“place criminal charges” against the defendants and conduct a criminal investigation into

the alleged conspiracy.

       The defendants filed a motion to dismiss the complaint and, in the alternative,

sought summary judgment. Kaplan opposed the motion. On October 1, 2015, the

District Court entered an opinion and order granting summary judgment in favor of the

defendants. In its 40-page opinion, the District Court liberally construed Kaplan’s

complaint as raising claims under Bivens, the FTCA, and FOIA. The District Court

concluded that each of Kaplan’s Bivens claims was untimely, barred by Heck v.

Humphrey, 512 U.S. 477 (1994),2 and/or relied on allegations that were insufficient for a

reasonable jury to return a verdict in his favor. The District Court further concluded that

his FTCA claim was untimely, and that his FOIA claims failed because he had not

properly exhausted his administrative remedies.

       Kaplan has timely appealed from the District Court’s judgment.

                                             II.


2
  In Heck, “the Supreme Court held that where success in a [42 U.S.C.] § 1983 action
would implicitly call into question the validity of conviction or duration of sentence, the
plaintiff must first achieve favorable termination of his available state or federal habeas
remedies to challenge the underlying conviction or sentence.” Williams v. Consovoy,
453 F.3d 173, 177 (3d Cir. 2006). “[T]he reasoning in Heck has been applied to bar
                                              3
       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise

plenary review over the District Court’s grant of summary judgment. See Lomando v.

United States, 667 F.3d 363, 371 (3d Cir. 2011).3 Summary judgment is appropriate

when “the movant 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). Although the

non-movant’s evidence “is to be believed, and all justifiable inferences are to be drawn in

his favor in determining whether a genuine factual question exists,” summary judgment

should be granted “unless there is sufficient evidence for a jury to reasonably find for the

nonmovant.” Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 826 (3d Cir. 2011)

(internal quotation marks omitted). We may affirm the District Court’s judgment on any

basis supported by the record, see Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011)

(per curiam), and we may take summary action if this appeal does not present a

substantial question, see 3d Cir. I.O.P. 10.6.

       Having reviewed the record, we conclude that the District Court did not err in

granting the defendants’ motion for summary judgment. For substantially the reasons


Bivens claims.” Lora-Pena v. FBI, 529 F.3d 503, 505 n.2 (3d Cir. 2008) (per curiam).
3
  We apply a different standard of review when “reviewing an order of a District Court
granting summary judgment in proceedings seeking disclosure under the FOIA.”
Abdelfattah v. U.S. Dep’t of Homeland Sec., 488 F.3d 178, 182 (3d Cir. 2007) (per
curiam); see id. (describing the two-tiered test for such claims). Kaplan’s complaint did
not appear to seek disclosure under FOIA; rather, to the extent that he sought relief for a
violation of FOIA, he asked for money damages. As explained later in this opinion, a
claim for money damages is not cognizable under FOIA, and we see no need to apply in
this case the test that governs claims that are properly brought under FOIA.
                                               4
provided by the District Court, we agree with its conclusion that Kaplan’s Bivens claims

fail. As for his FTCA claim, which concerned the alleged denial of an attorney visit in

2010, such a claim is properly brought against the United States, not federal

officials/employees. See, e.g., Harbury v. Hayden, 522 F.3d 413, 416 (D.C. Cir. 2008);

Kennedy v. U.S. Postal Serv., 145 F.3d 1077, 1078 (9th Cir. 1998) (per curiam); see also

Cestonaro v. United States, 211 F.3d 749, 753 (3d Cir. 2000) (“The express purpose of

the FTCA is to make the United States liable ‘in the same manner and to the same extent

as a private individual under like circumstances . . . .’”) (emphasis added) (quoting 28

U.S.C. § 2674). Even if Kaplan had amended his complaint so that his FTCA claim was

directed against the United States, that claim would still have failed. Indeed, as the

District Court explained, that claim was untimely and equitable tolling was not

warranted. Lastly, Kaplan’s FOIA claims were not cognizable for two reasons.4 First,

those claims may not be brought against federal officials/employees. See, e.g., Drake v.

Obama, 664 F.3d 774, 785-86 (9th Cir. 2011) (collecting cases). Second, money

damages — the relief that Kaplan sought here — are not available under FOIA. See, e.g.,

Cornucopia Inst. v. U.S. Dep’t of Agric., 560 F.3d 673, 675 n.1 (7th Cir. 2009); Johnson

v. City of Shorewood, 360 F.3d 810, 816 (8th Cir. 2004).




4
  As a result, we need not determine whether the District Court correctly concluded that
these claims fail for lack of exhaustion.
                                            5
      Because this appeal does not present a substantial question, we will summarily

affirm the District Court’s judgment. Kaplan’s motion for appointment of counsel is

denied, see Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993), as is his “Motion Directing

All Courts to Reverse Its Erroneous Decisions Based upon the Government Informant

John[]Garafalo Being a Government Agent not an Inmate which Requires Reversal.”




                                            6
