The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Keenan Hurt is incarcerated by the Bureau of Prisons ("BOP"). He complains here that BOP has negligently housed him and thereby caused him harm. He names the United States and, sued in their individual capacities, Harley Lappin, Director, BOP, and Joyce K. Conley, former Assistant Director, BOP (collectively the "Government Defendants"). The Government Defendants move to dismiss, which Mr. Hurt opposes. The case must be dismissed due to lack of jurisdiction, as its single count is premature because Mr. Hurt has not exhausted his administrative remedies. If construed as an attempt to bring an action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Complaint must be dismissed for failure to state a claim.
Mr. Hurt alleges that he was a cooperating witness who worked undercover for several federal law enforcement agencies prior to his incarceration. After his cover was blown in 2001, Mr. Hurt alleges that he was shot by members of the Grape Street Crip Gang ("Gang"), who were arrested and prosecuted. He says high-ranking members of the Gang have threatened him and his family and that he needs to be incarcerated in an institution with only government informants or cooperators.
Mr. Hurt alleges that BOP has negligently housed him so that he continues to be assaulted or placed in threatening situations in which he must assault others in order to survive. He contends that when he was first incarcerated at BOP in 2003, he was placed at the United States Penitentiary ("USP") in Allenwood, Pennsylvania, in the same unit with a member of the Gang for one year. This Gang member allegedly read Mr. Hurt's Presentence Investigation Report and learned that Mr. Hurt had cooperated with prosecutors. When the Gang member shared this information with other Gang members at Allenwood, Mr. Hurt was immediately in danger. Hearing that the Gang was planning to stab him, Mr. Hurt threw a cup of hot water at a Gang member. That person then put a combination lock into a sock and beat Mr. Hurt with it repeatedly. Both Mr. Hurt and the Gang member were placed in the Special Housing Unit ("SHU"). Upon his release back into the general prison population and throughout the time he was in Allenwood, Mr. Hurt averaged two fights a week to protect himself, which he never reported because he feared the consequences of giving information to the correctional staff.
Mr. Hurt was transferred to USP Beaumont in 2006, where he requested protective custody but was placed in the general population first. He contends that Gang members asked him for a copy of his Presentence Investigation Report to find out if he had cooperated with prosecutors. Mr. Hurt says that he obtained a knife and reported it to a correctional officer so he could be placed in the SHU. He wanted to be transferred to the SHU in order to protect himself from violence. He believed that it would appear to other inmates that he was placed in SHU for disciplinary reasons.
After Mr. Hurt was transferred from SHU back to the general prison population, a Gang member allegedly stabbed him, but Mr. Hurt did not report it. He obtained another knife and officials sent him back to SHU. Mr. Hurt also reports that his cellmate stabbed him, and he was forced to assault his cellmate because he feared for his life.
Mr. Hurt was transferred to USP Atwater in 2008, where he was assaulted with an iron wrench because he was a government informant. He has filed a civil suit in the Eastern District of California over this incident. He contends that his efforts to utilize the BOP's administrative remedy program have been unsuccessful because the staff have not been cooperative, answered his complaints in a timely manner, and have refused him necessary materials to file requests.
Mr. Hurt filed this case on May 4, 2009. The Complaint asserts a single claim of negligence by BOP but the word "Bivens" appears next to the case caption which may be construed as an attempt to seek relief pursuant to Bivens, 403 U.S. 388.
A. Motion to Dismiss for Lack of Subject Matter Jurisdiction
When reviewing a motion to dismiss for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1), a court must review the complaint liberally, granting the plaintiff the benefit of all inferences that can be derived from the facts alleged. Barr v. Clinton, 370 F. 3d 1196, 1199 (D.C. Cir. 2004). To determine whether it has jurisdiction over the claim, a court may consider materials outside the pleadings. Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1107 (D.C. Cir. 2005). No action of the parties can confer subject matter jurisdiction on a federal court because subject matter jurisdiction is an Article III and a statutory requirement. Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003). The party claiming subject matter jurisdiction bears the burden of demonstrating that such jurisdiction exists. Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008).
B. Motion to Dismiss for Failure to State a Claim
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly stated a claim. Federal Rule of Civil Procedure 8(a) requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). A complaint must be sufficient "to give a defendant fair notice of what the... claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). Although a complaint does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. The facts alleged "must be enough to raise a right to relief above the speculative level." Id. Rule 8(a) requires an actual showing and not just a blanket assertion of a right to relief. Id. at 555 n.3. "[A] complaint needs some information about the circumstances giving rise to the claims." Aktieselskabet Af 21. Nov. 2001 v. Fame Jeans, Inc., 525 F.3d 8, 16 n.4 (D.C. Cir. 2008) (emphasis in original). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is "plausible on its face." Twombly, 550 U.S. at 570. When a plaintiff pleads ...