The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DISMISSING COMPLAINT, WITH /LEAVE TO AMEND
Plaintiff Thomas L. Davis, a federal prisoner proceeding pro se and in forma pauperis, filed this civil action on November 30, 2010. The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," Ashcroft v. Iqbal, __ U.S. __, __, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.
Plaintiff was transferred from United States Penitentiary-Florence to United States Penitentiary-Atwater in September or October 2009.*fn1 Plaintiff was placed in the Special Housing Unit at USP-Atwater on October 7, 2009, and on December 21, 2009, Plaintiff was "locked up" due to a threat against his life. (Doc. 1, Comp., court record p. 2.)
Plaintiff, a protective custody status inmate, alleges that his safety was endangered on September 14, 2010, when his personal and legal property was destroyed and he was set up to be killed by Lieutenants T. Miller and S. Putnam, Correctional Officer J. Campos, and other unidentified staff members. Plaintiff was forced into a cell with another inmate who was armed with a knife. The inmate sexually assaulted Plaintiff and stabbed him from behind approximately thirty-six times.
Plaintiff is suing the United States of America for negligence under the Federal Tort Claims Act (FTCA). 28 U.S.C. § 1346(b). Under the FTCA, which is a limited waiver of sovereign immunity, the United States may, under certain circumstances, be held liable for the tortious conduct of its employees. Ali v. Federal Bureau of Prisons, 552 U.S. 214, 217-18, 128 S.Ct. 831 (2008); Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 1018-19 (9th Cir. 2007); Vacek v. United States Postal Serv., 447 F.3d 1248, 1250 (9th Cir. 2006). The United States is not liable under the FTCA for constitutional tort claims. FDIC v. Meyer, 510 U.S. 471, 478, 114 S.Ct. 996 (1994); Cato v. United States, 70 F.3d 1103, 1111 (9th Cir. 1995). Rather, the FTCA authorizes tort actions against the United States if the United States, as a private person, would be liable to Plaintiff under California tort law. United States v. Olson, 546 U.S. 43, 44, 126 S.Ct. 510 (2005); Delta Savings Bank v. United States, 265 F.3d 1017, 1025 (9th Cir. 2001). Any duty owed to Plaintiff by the United States must be found in California tort law. Delta Saving Banks, 265 F.3d at 1025 (quotation marks omitted).
As a threshold matter, Plaintiff fails to allege he exhausted the administrative remedies in compliance with 28 U.S.C. § 2675(a). Exhaustion of the administrative remedies is a prerequisite to suit and is jurisdictional; and Plaintiff's failure to allege exhaustion bars his FTCA claim. McNeil v. U.S., 508 U.S. 106, 113, 113 S.Ct. 1980 (1993); Ibrahim v. Dep't of Homeland Sec., 538 F.3d 1250, 1258 (9th Cir. 2008); Alvarado, 509 F.3d at 1019; Vacek, 447 F.3d at 1250.