The opinion of the court was delivered by: Honorable Joseph E. Irenas
IRENAS, Senior District Judge:
Plaintiff Michael Logan initiated this action pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346, alleging that he was falsely imprisoned in the Special Handling Unit ("SHU") of the Fairton Correctional Institution ("Fairton"). Pending before the Court is a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) by Defendants United States of America ("United States"), the Bureau of Prisons ("BOP") and its acting director, Thomas R. Kane (collectively "Defendants").
Plaintiff was sentenced to a 21-month term of imprisonment after he pled guilty to the unauthorized recording of motion pictures in a motion picture exhibition facility. (Compl. ¶ 5.) The BOP designated Plaintiff's place of confinement as Fairton and on January 6, 2009 his prison term commenced. (Id. ¶ 6.)
On April 7, 2009, Plaintiff was removed from the general population and placed in the SHU pending investigation of Plaintiff's suspected violation of BOP regulations regarding engagement in sexual acts with visitors. (Id. ¶ 8.) In a report dated April 22, 2009, the Unit Discipline Committee designated the charge against Plaintiff as "expunged" noting that "[a]lthough inmate admitted to the sanction, it was not witnessed by a staff member." (Id. ¶ 10; Defs' Moving Brief Ex. 3.)
The BOP Special Investigative Section ("SIS") at Fairton continued to investigate Plaintiff's contacts with camp visitors. SIS reviewed Plaintiff's telephone and email records and questioned Plaintiff and two other inmates. (Defs' Moving Brief Ex. 4.) On May 15, 2009, SIS completed a report concluding that Plaintiff had engaged in unauthorized sexual contact with a camp visitor. (Id. Ex. 4 at 12.) The report recommended that Plaintiff be considered for transfer to another federal facility that would be more conducive to his security needs. (Id.)
Following the filing of formal incident report and a hearing conducted by a disciplinary officer on May 28, 2009, the incident report was expunged. (Id. Ex. 5.) However, because the SIS investigation indicated that an unauthorized sexual act occurred and that this behavior was serious, Plaintiff's visiting privileges remained suspended and transfer to a more secure facility was recommended. (Id.) On July 8, 2009, Plaintiff was transferred to a low security facility in North Carolina. (Compl. ¶ 22.)
Plaintiff filed a Complaint in this action on December 13, 2011. Defendants filed a Motion to Dismiss for lack of subject matter jurisdiction on June 4, 2012.
Federal Rule of Civil Procedure 12(b)(1) provides that a court may dismiss a complaint for lack of subject matter jurisdiction. The federal government "as sovereign, is immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." U.S. v. Testan, 424 U.S. 392, 399 (1976)(internal quotations omitted); see also White-Squire v. U.S. Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010). Absent an express waiver of sovereign immunity, courts lack subject matter jurisdiction over claims against the federal government and its agencies. See FDIC v. Meyer, 510 U.S. 471, 475 (1994). Plaintiff bears the burden of showing an unequivocal waiver of sovereign immunity as a basis for a court's jurisdiction over its claims against government defendants. Global Fin. Corp. v. U.S., 67 Fed. Appx. 740, 742 (3d Cir. 2003).
In determining whether it has subject matter jurisdiction, the court may consider and weigh evidence outside the pleadings to resolve any factual issues bearing on jurisdiction. See Gould Elecs., Inc. v. U.S., 220 F.3d 169, 178 (3d Cir. 2000). In determining such jurisdictional questions, no presumptive truthfulness attaches to a petitioner's allegations, and the existence of disputed facts will not preclude the Court from evaluating for itself the merits of the jurisdictional claim. Mortensen v. First Fed. Sav. and Loan Assoc., 549 F.2d 884, 891 (3d Cir. 1997).
First, Defendants argue that Plaintiff's claim against the BOP and acting director Thomas Kane must be dismissed because the United States is the only proper party in an action pursuant to the FTCA. Because the United States is the only proper defendant in an action brought pursuant to the FTCA, CNA v. U.S., 535 F.3d 132, 138 n.2 (3d Cir. 2008), and a federal agency may not be sued in its own name, F.D.I.C. v. Meyer, ...