United States District Court, D. New Jersey
Berroa, No. 62268-066 Plaintiff Pro se
Kristin L. Vassallo, Esq. U.S. Attorney's Office Counsel
L. HILLMAN, U.S.D.J.
Harry Berroa, a prisoner presently confined at the Federal
Correctional Institution at Fort Dix in Fort Dix, commenced
this civil rights action pursuant to the Federal Tort Claims
Act (“FTCA”) and Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971), seeking redress for an injury he sustained from
falling on a wet staircase. Presently before the Court is
Plaintiff's Motion to Amend, ECF No. 69, and his Proposed
Amended Complaint, ECF No. 62. For the reasons that follow,
the Court will deny the Motion.
initiated this civil action by Complaint against individual
Defendants Warden Donna Zickfoose, H.S.A. Ms. M. Baker, John
Chung, M.D., Ed Magallon, M.L.P., as well as FCI Fort Dix and
the United States of America. ECF No. 1. In the Complaint,
Plaintiff alleges that he sustained an injury to his finger
as a result of falling on a wet stairway. He also alleges
that the medical care he received was inadequate. The Court
screened the Complaint and allowed only the FTCA claim to
proceed against the United States because the Bivens
claim was time barred. See ECF Nos. 7 (opinion), 8
(order). Plaintiff has since attempted to file multiple
motions to amend and amended complaints. After the Court
ordered Plaintiff to file one comprehensive motion to amend
and proposed amended complaint, Plaintiff filed the Proposed
Amended Complaint, ECF No. 62, which the Court construed as
the instant Motion to Amend, ECF No. 69.
Proposed Amended Complaint, Plaintiff reasserts his
Bivens claims, arguing that they are timely because
the statute of limitations was tolled while he was exhausting
his administrative remedies. See ECF No. 62 at 6.
Plaintiff had previously attached his administrative remedy
forms and responses to his original Complaint. See
ECF No. 1.
filed an opposition to the Proposed Amended Complaint in
which they argue futility because Plaintiff would be unable
to sustain the proposed constitutional claims. ECF No. 44.
Specifically, Defendants argue, inter alia, that the statute
of limitations for the Bivens claims cannot be
tolled because Plaintiff's administrative grievances did
not involve the adequacy of his medical care and that
Plaintiff has thus failed to exhaust his administrative
Rule of Civil Procedure 15(a) permits the amendment of
pleadings by leave of court, and such leave “shall be
freely given when justice so requires.” Fed.R.Civ.P.
15(a). Whether to permit amendment is left to the discretion
of the trial court, and denial is proper when there is
“undue delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment,
futility of the amendment, etc.” Foman v.
Davis, 371 U.S. 178, 182 (1962); Great Western
Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d
159, 174 (3d Cir. 2010). If the causes of action in the
proposed amended complaint fail as a matter of law, leave to
amend should be denied as futile. Ryan v.
Collucio, 183 F.R.D. 420, 423 (D.N.J. 1998).
Court must deny the Motion to Amend, ECF No. 69, as amendment
would be futile because Plaintiff could not sustain a cause
of action for his constitutional claims pursuant to
the constitutional claims, Plaintiff has failed to exhaust
his administrative remedies as to the issues for which he
seeks relief--the adequacy of his medical care and the
condition of the wet floor on which he slipped. Plaintiff
attached to his initial Complaint his administrative
remedies, see ECF No. 1, and none of the grievance
forms reference or challenge the adequacy of the medical care
Plaintiff received as a result of his accident or the
condition of the stairway. The administrative remedy forms and
appeals filed by Plaintiff are limited only to
Plaintiff's desire to correct his medical records.
See ECF No. 1.
failure to exhaust his constitutional claims is fatal to
those claims in two ways. First, because Plaintiff never
filed an administrative remedy regarding the claims he raises
in his Proposed Amended Complaint, the statute of limitations
was never tolled. As the Court noted in its Opinion and Order
dated September 25, 2015, Plaintiff's constitutional
claims are time barred because they accrued on or around May
11, 2011, the date of Plaintiff's injury,  but Plaintiff did
not file his Complaint until August 1, 2013 - well after the
two-year statute of limitations had expired. See ECF
No. 7 at 7-8 (opinion). Although the statute of limitations
for a Bivens claim is tolled while an inmate
exhausts administrative remedies, such tolling only applies
to claims “based on the conduct challenged in the
[administrative] grievance.” Bullock v. Buck,
611 Fed.Appx. 744, 747 (3d Cir. 2015). Here, the only issue
for which Plaintiff requests a remedy in his administrative
grievances and appeals is to correct his medical records.
Thus, because those grievances ...