Shemtov Michtavi v. UNITED STATES OF AMERICA On Appeal from the United States District Court for the…

BLD-300 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-2094
___________
SHEMTOV MICHTAVI,
Appellant
v.
UNITED STATES OF AMERICA
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 4:07-cv-00628)
District Judge: Honorable John E. Jones, III
____________________________________
Submitted Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
for Possible Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6
August 27, 2009
Before: MCKEE, FISHER and CHAGARES, Circuit Judges
Opinion filed: September 21, 2009
_________
OPINION
_________
PER CURIAM
Appellant Shemtov Michtavi seeks review of the order dismissing his second
amended complaint with prejudice. Because the appeal does not present a substantial

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The District Court stated that the dismissal was without prejudice to re-filing in the1
proper venue (i.e., the United States District Court for the Southern District of Florida).
However, the District Court declined to transfer the entire matter because it concluded
that the Middle District of Pennsylvania was the proper venue for Michtavi’s claims
against the LSCI-Allenwood officials.
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question, we will summarily affirm the District Court’s judgment. See 3d Cir. L.A.R.
27.4; I.O.P. 10.6.
I.
Michtavi, an Israeli citizen, is a federal prisoner currently serving a twenty-year
sentence at the Low Security Correctional Institution at Allenwood in White Deer,
Pennsylvania (“LSCI-Allenwood”). In April 2007, Michtavi filed a pro se civil action
against numerous named and unnamed defendants concerning his incarceration at LSCI-
Allenwood and a previous incarceration at the Federal Detention Center in Miami,
Florida. He purported to bring claims under the Federal Tort Claims Act (“FTCA”), 28
U.S.C. § 2401 et seq., the Racketeer Influenced and Corrupt Organizations Act (“RICO”),
18 U.S.C. § 1961 et seq., Bivens v. Six Unknown Named Agents of the Fed. Bureau of
Narcotics, 403 U.S. 388 (1971), and 42 U.S.C. §§ 1983, 1985, 1986, and 1988.
In May 2007, the District Court concluded that it lacked personal jurisdiction over
the Florida defendants and dismissed Michtavi’s claims against them. Because Michtavi1
also agreed to voluntary dismissal of fifty unnamed “John Doe” defendants, the District
Court dismissed without prejudice all of Michtavi’s claims except those against five
current and former LSCI-Allenwood employees: Miner, Babon, McArdle, Sheets, and

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Although Michtavi stated that he complained about the inmate plots and did not2
receive a satisfactory response, Michtavi also alleged that prison officials searched for
and eventually returned Michtavi’s legal documents to him, that the inmate who stole the
legal papers was placed into solitary confinement, and that the inmate who attempted to
frame Michtavi was transferred to a different prison.
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Nevil. Noting that the original complaint had focused primarily on the Florida claims, the
District Court directed Michtavi to file an amended complaint limited to his claims
against the LSCI-Allenwood officials.
Michtavi complied with the District Court’s order. In his amended complaint,
Michtavi alleged that several inmates at LSCI-Allenwood devised elaborate schemes to
steal his legal documents and money and to frame him for wrongdoing so they could
negotiate lesser sentences for themselves. Michtavi claimed that the prison officials
should have prevented the inmate plots, and that they failed to respond adequately when
Michtavi reported them. Michtavi also claimed that the officials falsely accused2
Michtavi of involvement in “some sort of wrongdoing” and conspired to “cover up” the
inmate plots. The prison officials’ actions with respect to these inmate plots allegedly
caused Michtavi to suffer “mental and emotional distress” resulting in the need to take the
prescription medication Prozac. Michtavi sought injunctive relief and compensatory and
punitive damages of more than thirty million dollars.
Because Michtavi had permission to proceed in forma pauperis (“IFP”), the
District Court reviewed the first amended complaint under the Prison Litigation Reform
Act of 1995 (“PLRA”), 28 U.S.C. § 1915. The District Court concluded that Michtavi

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raised only a bare and conclusory allegation of “some sort of agreement” among the
officials, which was insufficient to state a claim for civil conspiracy. The District Court
also concluded that Michtavi failed to allege the discriminatory animus necessary for a
conspiracy claim under 42 U.S.C. § 1985(3), or the predicate racketeering acts and injury
to business or property necessary for a civil RICO claim under 18 U.S.C. § 1962(c). In
addition, the District Court found that Michtavi failed to allege any personal involvement
by defendants Miner and Babon. Finally, the District Court concluded that Michtavi did
not raise allegations of cruel and unusual punishment rising to the level of an Eighth
Amendment violation. Accordingly, the District dismissed all of Michtavi’s claims
except one: a claim under the FTCA against the United States, in which Michtavi alleged
that the prison officials’ failure to adequately investigate the inmate plots caused him to
suffer emotional distress requiring him to take Prozac.
The Government moved to dismiss the remaining FTCA claim, arguing that the
District Court lacked jurisdiction because Michtavi failed to exhaust administrative
remedies and that Michtavi failed to state a claim upon which relief could be granted. The
District Court granted the motion on the grounds that it lacked subject matter jurisdiction.
See 28 U.S.C. § 2675(a) (FTCA administrative remedy exhaustion requirement); see also
42 U.S.C. § 1997e(a) (PLRA administrative remedy exhaustion requirement).
Specifically, because Michtavi filed his complaint in District Court before he received a
final administrative decision from the prison, he violated the strict requirement under the

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FTCA that exhaustion must be complete prior to instituting a civil action. See McNeil v.
United States, 508 U.S. 106, 112-13 (1993). Recognizing that the defect could be cured,
the District Court permitted Michtavi leave to amend.
Accordingly, Michtavi filed a second amended complaint limited to his FTCA
claim, in which he alleged, inter alia, that he properly exhausted his administrative
remedies. His other supporting allegations largely remained unchanged. The Government
once again moved to dismiss, arguing, inter alia, that Michtavi did not state a claim upon
which relief can be granted. On March 4, 2009, the District Court granted the
Government’s motion and dismissed the second amended complaint with prejudice.
Michtavi filed a timely appeal. He has been granted IFP status and has moved for
appointment of counsel.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Because
Michtavi is proceeding IFP, we must dismiss the appeal under 28 U.S.C. § 1915(e)(2)(B)
if it is legally frivolous. We may summarily affirm if the appeal presents no substantial
question. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
We exercise plenary review of the District Court’s order. See Angstadt v. Midd-
West Sch. Dist., 377 F.3d 338, 342 (3d Cir. 2004). Because we are reviewing the
dismissal of his claims, we take Michtavi’s allegations as true. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007); Estelle v. Gamble, 429 U.S. 97, 99 (1976). Michtavi

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Although Michtavi alleged that his mental injuries require medication (i.e., Prozac),3
the District Court concluded that the need to take medication does not necessarily lead to
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was required to allege sufficient factual matter to “state a claim to relief that is plausible
on its face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009), citing Twombly, 550 U.S. at
570.
A.
The FTCA provides that a prisoner such as Michtavi may not recover
compensatory damages for exclusively mental or emotional injuries without also showing
an accompanying physical injury. 28 U.S.C. § 1346(b)(2) (“No person convicted of a
felony who is incarcerated . . . while serving a sentence may bring a civil action against the
United States . . . for mental or emotional injury suffered while in custody without a prior
showing of physical injury.”). The PLRA similarly restricts a prisoner’s ability to recover
compensatory damages for solely mental or emotional injuries. 42 U.S.C. § 1997e(e) (“No
federal civil action may be brought by a prisoner confined in a jail, prison, or other
correctional facility, for mental or emotional injury suffered while in custody without a
prior showing of physical injury.”); see also Mitchell v. Horn, 318 F.3d 523, 533 (3d Cir.
2003). Accordingly, Michtavi could not proceed in the absence of some “prior showing of
physical injury.” See 28 U.S.C. § 1346(b)(2); 42 U.S.C. § 1997e(e).
Michtavi claimed injury in the form of “pain and suffering” and “mental and
emotional distress.” Although he amended his complaint twice, Michtavi never alleged a
physical injury or symptom of any kind. Even affording Michtavi’s pleadings the liberal3

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the conclusion that the injuries are physical in nature. We agree.
In addition, to the extent Michtavi purported to seek punitive damages, recovery for4
alleged loss of property, and injunctive relief, such relief is not available under the FTCA.
See 28 U.S.C. §§ 2674 (no punitive damages); Molzof v. United States, 502 U.S. 301,
312 (1994) (same); 2680(c) (no property claims, except in certain circumstances not
applicable in Michtavi’s case); Hatahley v. United States, 351 U.S. 173, 182 (1956)
(district court does not possess power under FTCA to enjoin United States).
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construction to which they are entitled, see Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir.
2003), we conclude that Michtavi did not state a claim upon which relief can be granted
and dismissal was appropriate. See Fed. R. Civ. P. 12(b)(6).4
B.
Although not listed as separate counts in the second amended complaint, Michtavi
referred vaguely to the Eighth Amendment and to the existence of an alleged conspiracy.
Originally, in his first amended complaint, Michtavi attempted to raise Eighth Amendment
and conspiracy claims. The District Court dismissed them, concluding that Michtavi failed
to allege facts sufficient to sustain either claim. The District Court construed Michtavi’s
references in the second amended complaint as a request to reconsider the dismissal, and
held that Michtavi did not present grounds for reconsideration.
We review the District Court’s denial of reconsideration for abuse of discretion.
Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985). We exercise plenary review
over the initial dismissal of Michtavi’s Eighth Amendment and conspiracy claims. See
Fed. Kemper Ins. Co. v. Rauscher, 807 F.2d 345, 348 (3d Cir. 1986).
Under the Eighth Amendment, “[o]nly ‘unnecessary and wanton infliction of pain’

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or ‘deliberate indifference to the serious medical needs’ of prisoners are sufficiently
egregious to rise to the level of a constitutional violation.” White v. Napoleon, 897 F.2d
103, 108-09 (3d Cir. 1990) (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). “The
test of ‘cruel and unusual’ is a strict one which considers whether the infliction grossly
exceeds the legitimate need for force and violates the standards of contemporary society.”
Rhodes v. Robinson, 612 F.2d 766, 771 (3d Cir. 1979). We have reviewed Michtavi’s
pleadings to consider whether, at any time during the proceedings, he raised allegations
sufficient to sustain a claim that he suffered cruel and unusual punishment in violation of
the Constitution. We conclude that he did not.
Michtavi based his civil conspiracy claim upon the conclusory allegation that prison
officials agreed to act against him. Without more, the bare allegation of an agreement is
insufficient to sustain a conspiracy claim. See Abbott v. Latshaw, 164 F.3d 141, 148 (3d
Cir. 1998) (conclusory allegations of concerted action are insufficient for a § 1983
conspiracy claim); Rose v. Bartle, 871 F.2d 331, 366 (3d Cir. 1989) (allegations supporting
a conspiracy claim under civil RICO must be sufficiently specific). Dismissal was
therefore appropriate.
The second amended complaint failed to include any new allegation to support
Michtavi’s claims. As a result, the District Court did not abuse its discretion in deciding
that Michtavi’s vague references to the Eighth Amendment and to the existence of a
conspiracy did not provide a basis for reconsideration of the dismissal of those claims.

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III.
We have reviewed the record in this matter and conclude that there is no substantial
question to be presented on appeal. Accordingly, we will summarily affirm the judgment
of the District Court. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6. We deny the motion for
appointment of counsel as moot.
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