United States District Court, D. New Jersey
GREGORY PAUL VIOLETTE, Plaintiff Pro Se
CARPENITO, United States Attorney By: KRISTIN LYNN VASSALLO,
Assistant United States Attorney Office of the U.S. Attorney
District of New Jersey Attorneys for Defendants Warden David
Ortiz, Department of Justice, and Federal Bureau of Prisons
B. SIMANDLE U.S. DISTRICT JUDGE
matter comes before the Court on a motion to dismiss filed by
defendants Warden David Ortiz, the Department of Justice, and
the Federal Bureau of Prisons (“BOP”). Motion to
Dismiss, Docket Entry 4. Plaintiff Gregory Violette opposes
the motion. Opposition, Docket Entry 6. For the reasons
stated below, the motion to dismiss in granted. Plaintiff
shall be given leave to amend his Eighth Amendment claims
against Warden Ortiz.
November 20, 2017, Plaintiff filed a complaint in the New
Jersey Superior Court, Law Division, Burlington County
alleging that he had been subjected to unconstitutional
conditions of confinement while incarcerated at FCI Fort Dix,
a federal prison operated by the BOP. Complaint, Docket Entry
1-1. He alleged that between September 2015 and September
2016, he “was made to live in an over capacity living
quarter's [sic].” Id. at ¶ 1.
According to the complaint:
Using the Federal BOP Program Statement dated June 30, 1997,
the square feet per person was 60 sq. ft. each. My room was
525 sq. ft. and that would give you a 8.75 inmate capacity
and the prison had me in with 11 other inmates making a total
of 12 inmates in my room making it over capacity by 3.25
Id. Plaintiff alleged this overcrowding put him
under “a lot of stress” and he “had a hard
time living because of the amount of inmates in [his]
room.” Id. ¶ 3(1). He specifically
alleged that the conditions “made my mental illness,
bi-polar and PTSD unbearable daily” and caused him to
be unable to sleep and eat. Id. ¶¶
United States removed the complaint to this Court on March 9,
2018 under 28 U.S.C. § 2679(d)(2) and 28 U.S.C.
§ 1346(b). Notice of Removal, Docket Entry 1. It
filed a motion to dismiss the complaint on March 23, 2018.
United States argues Plaintiff failed to file an
administrative tort claim, depriving this Court of
jurisdiction under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 1346(b),
2671-2680. Fed.R.Civ.P. 12(b)(1). It also argues Plaintiff
has failed to state a tort claim or an Eighth Amendment
violation. Fed.R.Civ.P. 12(b)(6). Plaintiff opposes the
motion by arguing he did file administrative remedies with
matter is now ripe for disposition.
STANDARD OF REVIEW
may move to dismiss a complaint for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1).
Because federal courts are courts of limited jurisdiction,
the party seeking to invoke the court's jurisdiction
bears the burden of proving the existence of subject matter
jurisdiction. See Kokkonen v. Guardian Life Ins.
Co., 511 U.S. 375, 377 (1994). The court's
jurisdiction may be challenged either facially (based on the
legal sufficiency of the claim) or factually (based on the
sufficiency of a jurisdictional ...