Opinion
C/A 5:21-01016-JFA-KDW
08-31-2021
Clint Edward Pickering, Plaintiff, v. United States of America, Defendant.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge.
Clint Edward Pickering, “Plaintiff, ” is a federal inmate currently housed at the United States Penitentiary in Victorville, California. Plaintiff brings this action alleging claims pursuant to the Federal Tort Claims Act (“FTCA”). This matter is before the court on Defendant's Motion to Dismiss, ECF No. 15, filed on June 25, 2021, and Defendant's Motion to Dismiss Plaintiff's Amended Complaint, ECF No. 17, filed on July 15, 2021. Plaintiff filed a Response to the most recent Motion to Dismiss on August 13, 2021, ECF No. 20, and on August 20, 2021, Defendant replied, ECF No. 21. These matters are now ripe for review.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Civil Rule 73.02(B)(2), D.S.C, which provides for all pretrial proceedings in certain types of matters be referred to a United States Magistrate Judge. Because Defendant's Motion is dispositive, the undersigned enters this Report (“R&R”) for the district judge's consideration.
I. Factual Background
Plaintiff initially filed this action on April 6, 2021, pursuant to the FTCA, see 28 U.S.C. § 2671 to § 2680. On June 25, 2021, Defendant filed a Motion to Dismiss, ECF No. 15, and on July 1, 2021, Plaintiff filed an Amended Complaint, ECF No. 16. In his Amended Complaint, Plaintiff maintains that he suffered personal injuries and resulting damages which were proximately caused by the gross negligence, negligence, and wrongful acts or omissions of employees of the United States Justice System, through the Federal Bureau of Prisons (“BOP”) at the Edgefield Federal Correctional Institute (“ECI”) in South Carolina. ECF No. 16.
The undersigned recommends dismissing the initial Motion to Dismiss, ECF No. 15, as moot. The more recent motion addresses the claims in Plaintiff's Amended Complaint and contains the same arguments as the initial Motion to Dismiss. See ECF No. 17.
Plaintiff maintains that while he was an inmate at ECI, on April 1, 2019, he requested to be placed in protective custody as he was fearful for his safety and life. See Id. at ¶ 7. Plaintiff alleges that two correctional officers, Lt. Curran and Lt. Strickland, refused to grant his request for protective custody, and he was forced back to his unit. Id. at ¶ 8. Plaintiff maintains that on April 2, 2019, the following morning, he informed Special Investigative Services of serious and credible threats that had been made against his life and safety if he was returned to General Population. Id. at ¶ 9. Plaintiff maintains he was placed back into general population on April 8, 2019, and that Special Investigative Services acted with gross negligence in this placement by ignoring credible threats against his life. Id. at ¶ 10. Plaintiff represents that at approximately 5:30 p.m. on April 9, 2019, he was violently attacked and assaulted by another inmate with some type of metal object such as a pipe or a padlock. Id. at ¶ 13.
Plaintiff maintains that he suffered from 9 facial fractures, a fractured jawbone in two places, multiple contusions, cuts and abrasions as a result of the attack. Id. at ¶ 14. Additionally, Plaintiff represents that he also suffered a deep cut on the cornea of his right eye, damage to his nose and teeth as well as a concussion. Id. Plaintiff alleges that immediately following the attack, he was sprayed with pepper spray; placed in mechanical restraints; and then placed in a Special Housing Unit where he was not given any type of timely treatment. Id. at ¶ 15. Plaintiff alleges that his request for medical attention was ignored, and he was administered medical attention from another inmate that was in the same unit. See Id. at ¶ 16. Mr. Pickering represents that he was finally administered medical treatment after 17 hours. Id. at ¶ 17. He maintains that had he been placed in protective custody when he first gave his request and been transferred to an appropriate hospital facility in a timely fashion, his severe pain and suffering would have been prevented. Id. at ¶ 18. Plaintiff alleges that as a direct and proximate result of the Defendant's failure to properly treat his medical emergency on April 9, 2019, the Plaintiff was forced to endure severe, conscious pain and suffering. Id. at ¶ 19.
Plaintiff brings a single cause of action for negligence/gross negligence against Defendant. See Id. at ¶¶ 20-26. He alleges that Defendant, as well as its agents, servants, and/or employees, owed him a duty of due care to property classify and house and/or administratively segregate him to prevent life-threatening and preventable injuries, and to administer medical care with the degree of care and skill which is ordinarily employed by the profession generally, under similar conditions and in like surrounding circumstance. Id. at ¶ 21. Further, Plaintiff alleges: “The United States of America is strictly liable for the negligent acts of its employees and the staff of [ECI], who were acting within the scope of their employment/service, under the doctrine of Respondent Superior.” Id. at ¶ 24. Plaintiff seeks actual and consequential damages; a trial; costs and disbursements; and other and further relief the court deems just and proper. Id.
II. Standard of Review
Defendant has moved to dismiss this action based on Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. When a Rule 12(b)(1) motion challenge is raised to the factual basis for subject matter jurisdiction, the burden of proving subject matter jurisdiction is on the plaintiff. Richmond, Fredericksburg & Potomac R. Co. v. U.S., 945 F.2d 765, 768 (1991). “In determining whether jurisdiction exists, the district 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.” Id. The district court should apply the standard applicable to a motion for summary judgment, under which the nonmoving party must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists. Id. The moving party should prevail only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law. Id.
To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) (quoting Bell Alt. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This Court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Indeed, “[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support [the legal conclusion].” Young v. City of Mount Rainier, 238 F.3d 567, 577 (4th Cir. 2001). If matters outside the pleadings, such as affidavits, are considered by the court in connection with a Rule 12(b)(6) motion, then the motion to dismiss converts to a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Wilson-Cook Med., Inc. v. Wilson, 942 F.2d. 247, 251 (4th Cir. 1991).
III. Analysis of Discretionary Function Exception of the FTCA
Defendant argues that Plaintiff's FTCA claim must be dismissed for lack of subject matter jurisdiction because the actions of the BOP officials fall within the discretionary exception to the FTCA. ECF No. 17 at 5. Further, Defendant argues that the decision as to where and how to place and assign an inmate in housing is precisely the kind of decision shielded by the discretionary function exception. Id. at 8. Defendant maintains that the Fourth Circuit and courts nationwide have consistently found that this is exactly the type of claim barred by the discretionary function exception. Id. at 9. Finally, Defendant contends that Plaintiff's housing assignments are grounded in social, political, safety, and security concerns which are the very type of issues intended by 28 U.S.C. § 2680 to be left unregulated by tort law. Id. at 12.
In response, Plaintiff argues that his “claims of individual carelessness and laziness in response to actual notice of credible threat to his life are not shielded by the discretionary function exception.” ECF No. 20 at 2. Further, Plaintiff argues that he has alleged BOP employees failed to protect him despite specific notice of threats. Id. at 4. Plaintiff also argues that to the extent Defendant tries to cast his allegations as a complaint about housing assignment, that view of his allegations is too narrow. Id. at 5.
In the FTCA, Congress waived sovereign immunity for claims brought against the United States based on the negligence or wrongful acts or omissions of its employees committed within the scope of employment, accepting liability in the same manner and to the same extent as a private individual would have under like circumstances. 28 U.S.C. §§ 1346(b)(1), 2671-2680. This waiver, however, is circumscribed by numerous exceptions, including an exception for claims “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.” Id. § 2680(a); see McMellon v. United States, 387 F.3d 329, 335 (4th Cir. 2004) (the FTCA's waiver of immunity is subject to exceptions, including the discretionary function exception). Because waivers of sovereign immunity must be strictly construed, the plaintiff bears the burden of demonstrating jurisdiction and showing that none of the FTCA's exceptions apply. See Welch v. United States, 409 F.3d 646, 651 (4th Cir. 2005).
The determination of whether the discretionary function exception applies requires application of a two-step analysis. First, a court must determine whether the conduct in question “involves an element of judgment or choice.” Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531, 536, (1988). When a statute, regulation, or policy prescribes the employee's conduct, the conduct cannot be discretionary and thus is unprotected by the discretionary function exception. Id.; see also United States v. Gaubert, 499 U.S. 315, 322, (1991); Seaside Farm, Inc. v. United States, 842 F.3d 853, 858-59 (4th Cir. 2016). Second, when the challenged conduct is the product of judgment or choice, the court must still determine whether the decision made was “based on considerations of public policy.” Berkovitz, 486 U.S. at 537. This second step of the analysis is designed to prohibit courts from “second guessing” decisions “grounded in social, economic, and political policy through the medium of an action in tort.” Gaubert, 499 U.S. at 323, (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814 (1984)). And in this same vein, “when established government policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion.” Id. at 324. 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. Id.
In this case, Defendant challenges the district court's jurisdiction based on the discretionary function exception set forth in § 2680(a), and therefore Plaintiff has the burden of demonstrating that the exception does not apply. The undersigned finds that Plaintiff failed to meet his burden in this instance. In support of its Motion, Defendant relies on the South Carolina District Court case of Peake v. United States, No. 1:20-CV-1450-CMC, 2020 WL 6390664, at *1 (D.S.C. Nov. 2, 2020), a case containing a similar factual situation.
In Peake, a federal inmate alleged the United States was negligent in failing to protect him from an attack by his cellmate, and in “neglecting him” while he was in the Special Housing Unit (“SHU”). Id. There, the South Carolina District Court held the United States' Motion to Dismiss pursuant to Rules 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure should be granted for lack of subject matter jurisdiction based on the discretionary function exception to the FTCA. Id. Peake argued that his claims were based on the negligent acts of officials leading to his attack and not on his cell assignment. Id. There, plaintiff described “his efforts to change his cell before his cellmate attacked him, explaining he made officials aware of a safety issue with his cellmate but they did nothing in response, in violation of their duty to protect prisoners from unreasonable risk.” Id.
In its decision, the District Court noted Peake's argument that his claim was based on officials' negligent failure to keep him safe but found “this is still covered by § 4042(a)(2) [and] BOP officials therefore have discretion in how to carry out this directive, including discretion in housing determinations for inmates.” 2020 WL 6390664, at *2. Pursuant to 18 U.S.C. § 4042(a)(2), the BOP is charged with providing for, among other things, safekeeping and care of all persons charged with or convicted of offences against the United States. Id. The Fourth Circuit Court of Appeals (“Fourth Circuit”) case of Rich v. United States, 811 F.3d 140 (4th Cir. 2015), was relied upon in the Peake decision.
In Rich, a federal inmate brought suit against the United States pursuant to the FTCA after he was attacked in a recreation area or cage by other inmates. 811 F.3d at 142. In his complaint, Rich brought “one count of negligence asserting that the prison officials had failed to protect him from harm.” Id. Rich alleged that “the officials should have kept him separated from his attackers, and that the officials failed to screen, ‘wand,' or search the inmates properly prior to placing them in the recreation cage.” Id. In its review, the Fourth Circuit affirmed a district court's decision to grant the United States' Motion to Dismiss concluding that the discretionary function exception to the FTCA applied to the prison officials' decision not to separate Rich from his attackers. Id. However, the Rich court remanded for further discovery related to plaintiff's claim that prison officials did not perform the searches properly. Id.
On appeal, Rich argued that officials had a non-discretionary duty to maintain and monitor his prison files and the files of other inmates. Id. at 143-44. He argued that if officials had taken certain security measures, they would have known about his history and conflict with a particular white supremacy group and his need to be separated from it. Id. at 144. In its analysis of whether the discretionary function exception applied to plaintiff's claim that he should have been separated from his attackers, the Fourth Circuit first considered “whether the challenged governmental conduct involves an element of judgment or choice and, if so, whether that judgment was based on considerations of public policy.” Id. at 145. Citing both to sections of the United States Code and to the Code of Federal Regulations, the Rich court concluded that the first prong of the discretionary function was satisfied, noting discretion was evident in the regulations regarding the proper handling and review of Central Inmate Monitoring Files. Id.
The Fourth Circuit similarly concluded, under the second prong of the discretionary exception test, that considerations of public policy are implicated in the discretion given to prison officials in their decisions about the separation of prisoners. Id. at 145-46. Specifically, the court reasoned:
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 Rich from his attackers.Id. at 146. However, as indicated above, the court reached a different conclusion regarding
Rich's allegations that the prison officials did not search his attackers properly before placing them in the recreation cage. Id. Plaintiff relies on this section of the Rich opinion in arguing against dismissal. See ECF No. 20 at 3.
In opposition to Defendant's Motion, Plaintiff acknowledges that the alleged grossly negligent conduct of BOP employees involved an element of choice. Id. However, Plaintiff argues that grossly negligent acts of carelessness and laziness by specific employees do not advance the purposes of the regulatory scheme governing the BOP and that the conduct challenged here is not the type that can logically be said to be grounded in the public policy of a regulatory scheme. Id. Plaintiff then cites to the section of the Rich decision that discusses whether federal officials failed to conduct proper contraband patdowns. Id. at 3-4. There, the Rich court explained:
The Second Circuit has acknowledged that discretionary conduct cannot be grounded in a policy decision when that conduct is marked by individual
carelessness or laziness. See Coulthurst v. United States, 214 F.3d 106 (2d Cir. 2000) (concluding that the discretionary function exception would not apply to a prison official's inspection of faulty weight equipment that caused plaintiff's injuries if that inspection was performed in a “carelessly inattentive” manner). The fact that a nine-inch-long knife was recovered at the scene of Rich's attack, in spite of the prison officials' averments that each performed the required searches properly, at least suggests the possibility of careless inattention. In that case, the prison officials would not be shielded by the discretionary function exception because no policy considerations would be implicated.811 F.3d at 147.
The undersigned does not find the cases of Peake or Rich distinguishable from the case at hand. Both cases concerned the alleged negligent failure to protect inmates where prison officials were made aware of threats prior to the plaintiffs' attacks. Here, Plaintiff attempts to reconcile the Rich holding, specifically concerning the negligent or lazy manner in which prison officials conducted patdowns, with the allegations here. However, the Amended Complaint in this action concerns whether Plaintiff was negligently refused protective custody; wrongly forced to remain in his unit; and placed into the General Population in spite of serious and credible threats. See ECF No. 16 at ¶¶ 7-11. Under these set of allegations, the Fourth Circuit and this district have held that the discretionary function exception applies to the United States' waiver of immunity. Accordingly, the undersigned recommends granting Defendant's Motion to Dismiss due to lack of subject matter jurisdiction.
Plaintiff argues that grounds two through four of Defendant's Motion to Dismiss are moot following the amendment of his Complaint. ECF No. 20 at 5-6. Plaintiff represents that he does not contend any delay in his medical treatment exacerbated his condition or resulted in additional medical complications, and he expressly states that he “does not intend to pursue a liability claim for medical negligence and has removed allegations regarding delay in medical care from the [A]mended [C]omplaint.” Id. at 5. Based on Plaintiff's amendments and concessions, it is unnecessary to address whether he exhausted claims other than his cause of action for failure to protect pursuant to the FTCA.
IV. Conclusion and Recommendation
Based on the foregoing, it is recommended that Defendants' Motion to Dismiss, ECF No. 17, be granted and this action be dismissed.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”