Hoffenberg v. United States Ex Rel. Federal Bureau of Prisons , 504 F. App'x 81 ( 2012 )

ALD-034 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-3283
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STEVEN JUDE HOFFENBERG, acting in (7) Seven
TFC Restitution Court Orders, Multi Billion Dollar Plaintiff Constructive Trusts,
That Must Re-Pay Major State Pension Funds(s), including Over 200,000 Plaintiff
Restitution Investors(s) in Securities, Under Mandated Federal Circuit Law,
Appellant
v.
UNITED STATES OF AMERICA, On behalf of, the Federal Bureau of Prisons,
B.O.P, in Non-Stop Tort Obstruction Violation(s), Contaminated Entire Time
Frame Stopping the Plaintiff Restitution Repayment(s)
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 1:10-cv-02788)
District Judge: Honorable Jerome B. Simandle
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
November 8, 2012
Before: SLOVITER, VANASKIE and WEIS, Circuit Judges
(Opinion filed: November 15, 2012)
_________
OPINION
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PER CURIAM.
Steven Jude Hoffenberg, a federal inmate currently incarcerated at FCI Fort Dix in
Fort Dix, New Jersey and proceeding pro se, appeals from an order of the United States
District Court for the District of New Jersey dismissing with prejudice his medical
malpractice claim pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-
2680. Because this appeal does not present a substantial question, we will summarily
affirm the District Court‟s order. See 3d Cir. L.A.R 27.4; I.O.P. 10.6.
Because we primarily write for the parties, we need only recite the facts necessary
for our discussion. On June 1, 2010, Hoffenberg filed a complaint in the District Court
alleging the following claims: (1) prison officials were violating his right to access the
courts by obstructing his ability to speak with attorneys by telephone and by seizing legal
documents; (2) he should not have been placed in solitary confinement because of a false
incident report; (3) medical negligence; (4) retaliation for his cooperation in an
investigation; and (5) interference with his restitution payments and violations of
constructive trust law related to those payments.
On July 12, 2010, the District Court ordered that the Clerk of Court
administratively terminate Hoffenberg‟s complaint as duplicative of his suit in
Hoffenberg v. Grondolsky, D.N.J. Civ. No. 1:09-cv-04784. Hoffenberg appealed to this
Court, and we vacated the dismissal order and remanded for further proceedings in the
District Court. Hoffenberg v. U.S. ex rel. Fed. Bureau of Prisons, 430 F. App‟x 91 (3d
Cir. June 9, 2011). After reopening Hoffenberg‟s complaint, the District Court dismissed
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without prejudice his claim regarding medical malpractice and dismissed with prejudice
all of Hoffenberg‟s other claims. Hoffenberg was given leave to file an amended
complaint that only made reference to his medical malpractice claim pursuant to the
FTCA, and the District Court warned him that any pleading failing to comply with that
requirement would be stricken.
Hoffenberg filed a motion to amend his complaint, to which was attached his
amended complaint, and a motion to change venue on February 10, 2012. On July 27,
2012, after determining that it lacked jurisdiction over Hoffenberg‟s medical malpractice
claim, the District Court dismissed Hoffenberg‟s claim with prejudice and denied both
motions. Hoffenberg timely filed a notice of appeal, and subsequently filed a motion for
summary remand in this Court.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and exercise
plenary review over the District Court‟s sua sponte dismissal of Hoffenberg‟s complaint.
See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). The legal standard for
dismissing a complaint for failure to state a claim pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) is the same as that for dismissal pursuant to Federal Rule of Civil
Procedure 12(b)(6). See id. To survive dismissal, “a complaint must contain sufficient
factual matter, accepted as true, to „state a claim to relief that is plausible on its face.‟”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). This Court affirms a dismissal for failure to state a claim
“only if, accepting all factual allegations as true and construing the complaint in the light
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most favorable to the plaintiff, we determine that the plaintiff is not entitled to relief
under any reasonable reading of the complaint.” McGovern v. City of Philadelphia, 554
F.3d 114, 115 (3d Cir. 2009). We may summarily affirm on any basis supported by the
record. Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).
For substantially the same reasons provided by the District Court, we agree with
the dismissal of Hoffenberg‟s FTCA claim. Before instituting an FTCA action in court, a
claimant must first present the claim to the appropriate federal agency. 28 U.S.C. §
2675(a). “The requirements that a claimant timely present a claim, do so in writing, and
request a sum certain are jurisdictional prerequisites to suit under the FTCA.” Deutsch v.
United States, 67 F.3d 1080, 1091 (3d Cir. 1995). Under the FTCA, the plaintiff has the
burden of establishing that a proper administrative claim has been presented. See Livera
v. First Nat‟l State Bank, 879 F.2d 1186, 1195 (3d Cir. 1989).
In his amended complaint, Hoffenberg states that he has filed over 1,400 claim
notices with the Bureau of Prisons (“BOP”) regarding his medical claims, including his
medical malpractice claim. To support this assertion, he attached a letter, dated June 29,
2009, informing him that his administrative tort claim of June 4, 2009 was forwarded to
the BOP from the Department of Justice. Hoffenberg restates this argument in his motion
for summary remand. However, because this letter does not provide specifics regarding
the June 4, 2009 claim, we cannot discern by this letter alone whether Hoffenberg
actually submitted a claim notice for his medical malpractice claim.
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Even assuming that this letter referenced Hoffenberg‟s medical malpractice claim
notice, he has failed to allege a “sum certain amount for injuries or losses alleged to have
occurred by reason of the incident.” White-Squire v. U.S. Postal Service, 592 F.3d 453,
456 (3d Cir. 2010); see also Adams v. United States, 615 F.2d 284, 292 n.17 (5th Cir.
1980) (the “sum certain” requirement “anticipates that the claim will be for a definite
amount”). Here, Hoffenberg‟s demand for $20 billion is not specific to his medical
malpractice claim; rather, it encompasses his other claims previously dismissed by the
District Court. Accordingly, because Hoffenberg has failed to meet his burden of
demonstrating that the District Court had jurisdiction, his medical malpractice claim was
properly dismissed.
For the foregoing reasons, no substantial question is presented and we will affirm
the judgment of the District Court.1 See 3d Cir. L.A.R 27.4; I.O.P. 10.6. We deny
Hoffenberg‟s motion for summary remand.
1
We also will affirm the District Court‟s denial of Hoffenberg‟s motions to amend his
complaint and to change venue.
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