Opinion
C. A. 0:22-1092-DCC-PJG
10-25-2022
Charles Christian Matt, Plaintiff, v. United States of America, Defendant.
ORDER AND REPORT AND RECOMMENDATION
PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE
Plaintiff Charles Christian Matt filed this action pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680, 1346(b). This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the Government's motion to dismiss. (ECF No. 7.) Matt filed a response in opposition to the motion (ECF No. 13), and the Government filed a reply (ECF No. 19). Having reviewed the record presented and the applicable law, the court finds that the Government's motion should be granted and this case dismissed.
BACKGROUND
The following allegations are taken as true for purposes of resolving the defendant's motion to dismiss. Matt was an inmate at the Federal Correctional Institution Edgefield of the Federal Bureau of Prisons (“BOP”) from December 2019 to March 2021. In 2020, inmates in the prison began trying to extort Matt by threatening to reveal that Matt had cooperated with federal prosecutors and testified against another inmate in a criminal prosecution if Matt did not pay the inmates. Revealing this information to other inmates would have labeled Matt as a “snitch” and exposed him to violent retribution by those inmates. Other inmates who were members of a gang threatened Matt by brandishing weapons.
Matt reported these threats to correctional officers who twice temporarily placed Matt in protective custody or administrative detention, but Matt was returned to the general population each time. On one occasion, Matt refused to return to his assigned cell out of fear of other inmates. Correctional officers required Matt to return to his cell and charged him with a disciplinary infraction. On June 24, 2020, Matt was assaulted by his roommate. The roommate was told by other inmates that Matt was a snitch and that Matt reported other inmates' threats and extortion to correctional officers. The assault caused severe injury to Matt, including broken bones in his skull and face and brain injuries.
Matt brings this action raising claims of negligence or gross negligence based on the following acts or omissions, quoted verbatim from Matt's Complaint:
a) Failing to place or maintain Plaintiff in protective custody after he reported other violent inmates were threatening his safety and life and extorting him and his family;
b) Failing to heed and respond to, or in otherwise ignoring or discounting, Plaintiff's reports that he was in danger from violent, threatening inmates;
c) Failing to properly and timely investigate Plaintiff's assertions and take appropriate actions to keep him safe, thereby placing him in jeopardy of retribution and assault and battery by other inmates;
d) Failed to properly and timely investigate and prevent inmates from extorting and blackmailing fellow inmates and their families, thereby placing Plaintiff in jeopardy of retribution and assault and battery by other inmates.
e) Failing to keep confidential non-public information about Plaintiff which prompted other inmates to threaten and seek retribution against Plaintiff, thereby placing him in jeopardy of retribution and assault and battery by other inmates;
f) Publicly belittling and deriding Plaintiff and his fears in front of other inmates, thereby placing him in jeopardy of retribution and assault and battery by other inmates;
g) Failing to conduct[] an investigation in a proper and timely manner, thereby placing Plaintiff in jeopardy of retribution and assault and battery by other inmates;
h) Failing to properly separate the threatening inmates from Plaintiff or otherwise take action against the threatening inmates to prevent the assault from occurring;
i) Failing to transfer Plaintiff to another unit, prison or facility for safekeeping;
j) Failing to provide a properly secured and reasonably safe environment;
k) Failing to properly investigate and review housing and cell assignments;
l) Failing to properly investigate, review and resolve potential threats to Plaintiff's safety and assaults and batteries on his person; or m) Otherwise failing to keep Plaintiff safe and protect him from violent or threatening inmates.(Compl., ECF No. 1 at 5-6.)
DISCUSSION
A. Rule 12(b)(1) Standard
Dismissal under Federal Rule of Civil Procedure 12(b)(1) examines whether the complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiff's burden to prove jurisdiction, and the court is to “regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
To resolve a jurisdictional challenge under Rule 12(b)(1), if the moving party contends that the complaint fails to allege facts upon which subject matter jurisdiction can be based, the court must assume that the facts alleged in the complaint are true. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). If the moving party contends the facts alleged are untrue, the court may resolve factual dispute by weighing evidence necessary to determine whether the court has jurisdiction. Id.
B. The Government's Motion
1. Failure to Exhaust
The Government argues that Matt failed to exhaust his administrative remedies for his claim that prison officers failed to keep information about Matt confidential, and therefore, the court lacks jurisdiction over that claim. The court agrees.
A plaintiff seeking to file an FTCA claim must first exhaust his administrative remedies. The exhaustion requirement is jurisdictional and may not be waived. See Plyler v. United States, 900 F.2d 41, 42 (4th Cir. 1990). Under 28 U.S.C. § 2675,
[a]n action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.
The claim must be presented to the appropriate agency by filing a Standard Form 95 or other written notification. 28 C.F.R. § 14.2(a). The plaintiff will be deemed to have properly presented his claim if the notice is sufficient to enable to agency to investigate the underlying incident and places a sum certain value on the claim. Ahmed v. United States, 30 F.3d 514, 516-17 (4th Cir. 1994); White v. United States, 907 F.Supp.2d 703, 705 (D.S.C. 2012).
Here, Matt pursued his administrative remedy by filing a Standard Form 95 with an attachment that included a bulleted list of ways in which Matt asserted that BOP officials were negligent. (Carter Aff., Attachment A, Mot. to Dismiss, ECF No. 7-1 at 3-6.) The list generally mirrors Matt's asserted bases in his Complaint for claiming that BOP officials were negligent- for instance, alleging that BOP officials failed to place Matt in protective custody, failed to investigate Matt's allegations that he was threatened, and failed to separate or otherwise protect Matt from inmate violence. (Id. at 6.) However, the list does not include any assertion that BOP officials failed to keep information about Matt confidential. All of Matt's assertions in the Standard Form 95 indicate that BOP officials' negligence was the result of failing to protect Matt from violent inmates who sought to extort or threaten Matt by outing him as a snitch. Nothing in the Standard Form 95 indicates that BOP officials themselves shared confidential information about Matt or that their sharing of confidential information was a proximate cause of Matt's injury.
Matt argues that while he did not explicitly make that assertion in his Standard Form 95, the claim is implicit in his assertion that correctional officers “belittled and derided Mr. Matt and his fears in public in front of other inmates, placing him in even greater jeopardy and increasing the likelihood of retribution and assault.” (Pl.'s Resp., ECF No. 13 at 18.) This assertion however does not refer to confidential information or officers sharing it. But even if the assertion could be construed to refer to confidential information that was shared by the officers, Matt did not include it in his descriptions of the ways in which BOP officials were purportedly negligent. That one assertion buried in paragraphs of facts does not provide adequate notice to the BOP that he sought to state a negligence claim based on that behavior. Consequently, Matt failed to exhaust his administrative remedies as to this claim because Matt's Standard Form 95 did not fairly put BOP on notice that sharing confidential information was a basis for his negligence claim. Therefore, the court lacks jurisdiction over Matt's negligence claim based on BOP officials' failure to keep information about Matt confidential.
Matt moves to stay this action because he filed a new administrative claim with the BOP that explicitly raises the claim that BOP officials failed to keep his information confidential. (ECF No. 14.) The motion is denied because the FTCA's exhaustion requirement is jurisdictional, and Plaintiff cannot cure the jurisdictional defect at this time. See Robles v. Beaufort Mem'l Hosp., 482 F.Supp.2d 700, 706 (D.S.C. 2007) (stating the court cannot stay the plaintiff's FTCA case pending exhaustion of her administrative remedies) (citing Plyler, 900 F.2d at 42); see also Sai v. Dep't of Homeland Sec., 99 F.Supp.3d 50, 63 (D.D.C. 2015) (“[T]he FTCA expressly contemplates that actions will be dismissed-rather than stayed-while a party seeks to exhaust a previously-unexhausted claim.”) (citing 28 U.S.C. § 2679(d)(5)).
2. Discretionary Function Exception
The Government argues that the court lacks jurisdiction over Matt's remaining claims because they are a barred by the discretionary function exception. The court agrees.
The FTCA provides for a limited waiver of the United States' sovereign immunity from suit by allowing a plaintiff to recover damages in a civil action for loss of property or personal injuries caused by the “negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1); see also Medina v. United States, 259 F.3d 220, 223 (4th Cir. 2001) (“The statute permits the United States to be held liable in tort in the same respect as a private person would be liable under the law of the place where the act occurred.”).
However, the FTCA does not waive the United States' sovereign immunity for
[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.28 U.S.C. § 2680(a). The purpose of this “discretionary function exception” is to protect the discretion of the executive branch to make policy judgments. Blanco Ayala v. United States, 982 F.3d 209, 214 (4th Cir. 2020); see also Wood v. United States, 845 F.3d 123, 128 (4th Cir. 2017) (“In short, the discretionary function exception is driven by separation of powers concerns, shielding decisions of a government entity made within the scope of any regulatory policy expressed in statute, regulation, or policy guidance, even when made negligently.”). The burden is on the plaintiff to establish that the discretionary function exception does not foreclose his claim. Blanco Ayala, 982 F.3d at 214 (quoting Seaside Farm, Inc. v. United States, 842 F.3d 853, 857 (4th Cir. 2016)).
To determine whether the discretionary function exception applies, the court must undertake a two-step inquiry. Sanders v. United States, 937 F.3d 316, 328 (4th Cir. 2019); Rich v. United States, 811 F.3d 140, 145 (4th Cir. 2015). First, the court must determine whether the nature of the defendant's actions is discretionary-that is, whether the actions involve an element of judgment or choice. United States v. Gaubert, 499 U.S. 315, 322 (1991); Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536 (1988). The action is not considered discretionary if “a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow” because “the employee has no rightful option but to adhere to the directive.” Id. Second, if the actions are discretionary, the court must then determine whether the defendant's decision was made based on considerations of public policy. Gaubert, 499 U.S. at 322-23; Berkovitz, 486 U.S. at 536-37.
Here, Matt's remaining claims-that BOP officials failed to properly investigate threats of violence and extortion, failed to put Matt in protective custody, and failed to otherwise protect him from threatening inmates-are precisely the type of actions that courts have consistently held are covered by the discretionary function exception. The United States Court of Appeals for the Fourth Circuit states:
Prison officials are afforded discretion in determining where to place inmates and whether to keep certain individuals or gangs separated from one another. Because these decisions invoke several policy considerations for prison administrators, they are precisely the kind of determinations that the discretionary function exception is intended to protect. We therefore hold that the discretionary function exception shields the prison officials from liability with respect to whether they should have separated [the plaintiff] from his attackers.Rich, 811 F.3d at 146; accord Cohen v. United States, 151 F.3d 1338, 1341 (11th Cir. 1998); see also Alfrey v. United States, 276 F.3d 557, 563-67 (9th Cir. 2002) (stating that the discretionary function exception covers prison officials' decisions about how to respond to a threat of inmate-on-inmate violence); Calderon v. United States, 123 F.3d 947, 949-51 (7th Cir. 1997) (same); and Peake v. United States, C/A No. 1:20-cv-1450-CMC, 2020 WL 6390664, at *2 (D.S.C. Nov. 2, 2020) (stating that general allegations that prison officials were negligent in failing to keep the plaintiff safe from attack by another inmate are covered by the discretionary function exception).
Importantly, Matt does not allege that any policy or regulation mandates that prison officials take any particular action when confronted with reports of inmates who threaten violence. Gaubert, 499 U.S. at 322. Matt points to policies regarding the sharing of confidential information by prison officials (Pl.'s Resp., ECF No. 13 at 13-16), but such policies would only apply, if at all, to Matt's claim that the court has already found is not exhausted. Matt also submitted an affidavit from his expert in the field of corrections, Roy T. Gravette, who swears that “BOP and its correctional staff are subject to various mandatory, non-discretionary duties regarding . . . housing, classification, protective custody, pre-assault threat assessment and the subsequent assault and investigation.” (Gravette Aff. ¶ 20, Pl.'s Resp., ECF No. 13-1 at 5.) However, Matt does not identify any such policies, as is his burden. See Ayala, 982 F.3d at 214. Consequently, Matt's remaining claims are barred the discretionary function exception.
RECOMMENDATION
Based on the foregoing, the court recommends that the Government's motion be granted and this case be dismissed.
In light of the court's recommendation, the defendant's motion to stay the deadlines in the court's scheduling order pending resolution of the motion to dismiss is granted. (ECF No. 22.)
The parties' attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.' ” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).