Opinion
C. A. 6:23-cv-06100-BHH-KFM
01-22-2024
Joe Dee Couch, Plaintiff, v. United States of America Defendant.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
The plaintiff, a federal prisoner proceeding pro se and in forma pauperis, brings this action pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b). Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B)(2), (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.
PROCEDURAL HISTORY
On July 11, 2023, the instant matter was opened secondary to receipt of a letter from the plaintiff in the United States District Court for the Southern District of Indiana (doc. 1). On September 20, 2023, the Honorable James Patrick Hanlon, United States District Judge for the Southern District of Indiana, entered an order providing the plaintiff a specific amount of time to submit documentation regarding payment of the filing fee in order to bring his case into proper form (doc. 8). Judge Hanlon then entered an order on October 4, 2023, dismissing the plaintiff's complaint for failure to state a claim and instructing the plaintiff to submit an amended complaint for the case to continue (doc. 11). The order also instructed the plaintiff to provide certain documentation regarding payment of the filing fee (id.). The plaintiff submitted what he indicated was an amended complaint on November 20, 2023, well after the deadline to respond had passed (doc. 14). On November 28, 2023, based on the amended complaint's indication that the plaintiff's claims arose while he was incarcerated at Williamsburg Federal Correctional Institution (“FCI Williamsburg”) in South Carolina, Judge Hanlon transferred the matter to the United States District Court for the District of South Carolina (doc. 15). The instant matter was then opened in this court.
On December 19, 2023, the undersigned issued an order informing the plaintiff that this case was not in proper form for service and instructing him that he was being provided one final opportunity to bring his case into proper form (doc. 24). Although the plaintiff submitted some documents that were not completed correctly, the plaintiff substantially complied with the court's order to bring his case into proper form. Nevertheless, upon review of the plaintiff's amended complaint, the undersigned recommends that it be dismissed.
ALLEGATIONS
The plaintiff is a federal prisoner in the custody of the Bureau of Prisons (“BOP”) and located at Florence Federal Correctional Institution (“Florence FCI”), but seeks damages based upon his time at FCI Williamsburg (doc. 14). The document submitted by the plaintiff that purports to be his amended complaint is a claim form 95 with various documents and news stories attached (docs. 14; 14-1). The plaintiff contends that the warden at FCI Williamsburg had an obligation to keep him safe from COVID-19, but breached that duty when he changed the screening process at FCI Williamsburg (doc. 14 at 1, 3). The plaintiff contends that due to the breach he contracted COVID-19, which has caused him to suffer long term “havoc” on his body and mind (id.). For relief, the plaintiff seeks five million dollars in money damages (id. at 1). The attachments to the plaintiff's amended complaint include news articles and various other documents discussing a COVID-19 outbreak at FCI Williamsburg during the end of 2020 and possibly during the summer of 2021 (see doc. 14-1).
STANDARD OF REVIEW
The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted,” is “frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Further, the plaintiff is a prisoner under the definition of 28 U.S.C. § 1915A(c) and “seeks redress from a governmental entity or officer or employee of a governmental entity.” Id. § 1915A(a). Thus, even if the plaintiff had prepaid the full filing fee, this court is charged with screening the plaintiff's lawsuit to identify cognizable claims or to dismiss the complaint if (1) it is frivolous, malicious, or fails to state a claim upon which relief may be granted, or (2) seeks monetary relief from a defendant who is immune from such relief. Id.
As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
DISCUSSION
As noted above, the plaintiff filed the instant action seeking damages under the FTCA from the defendant. However, the plaintiff's amended complaint is subject to summary dismissal. The FTCA sets forth situations in which the United States has waived the sovereign immunity it otherwise enjoys. 28 U.S.C. § 1346. The FTCA vests the district courts with:
exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, 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, 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). FTCA claims may only lie against the United States, the defendant named in this action. Hui v. Castaneda, 559 U.S. 799, 805-06 (2010). Additionally, because the plaintiff's amended complaint involves actions that purportedly occurred while the plaintiff was housed at FCI Williamsburg, a BOP facility located in South Carolina, the substantive law of South Carolina applies to his FTCA claims. Miller v. United States, 932 F.2d 301, 303 (4th Cir. 1991); Kerns v. United States, 585 F.3d 187, 194 (4th Cir. 2009).
Liberally construed, the plaintiff seeks damages under the FTCA based upon his exposure to and contraction of COVID-19 while at FCI Williamsburg (doc. 14). The plaintiff alleges that he only contracted COVID-19 due to the Warden's negligence in changing the screening procedures at FCI Williamsburg (id.). However, while the FTCA allows a plaintiff to recover money damages for negligent or wrongful acts or omissions by federal employees, there are exceptions to the waiver of sovereign immunity, including for federal employees performing discretionary functions. See Williams v. United States, 50 F.3d 299, 308 (4th Cir. 1995) (recognizing that the discretionary function exception “insulates the United States from liability for its agents and employees' performance of duties involving discretionary decisions.”). The discretionary function exception involves a two-prong inquiry - first, whether the challenged conduct involved an element of judgment or choice and second whether the judgment exercised was based upon considerations of public policy. Peake v. United States, C/A No. 1:20-cv-01450-CMC-SVH, 2020 WL 7249875, at *4 (D.S.C. Sept. 14, 2020) (internal citations omitted), Report and Recommendation adopted by 2020 WL 6390664 (D.S.C. Nov. 2, 2020), aff'd 851 Fed.Appx. 441 (4th Cir. 2021). As noted by the Fourth Circuit Court of Appeals, the two-prong inquiry balances Congress' desire to allow redress of injuries suffered by individuals due to the negligence of government actors against the need to protect the government from being hobbled from doing its duty because of tort suits. Id. (quoting Baum v. United States, 986 F.2d 716, 720 (4th Cir. 1993)).
The plaintiff contends that the Warden at FCI Williamsburg owed him a duty to protect him from the COVID-19 pandemic and breached that duty when he changed the screening requirements at FCI Williamsburg (doc. 14). However, the plaintiff has not indicated that the warden was acting under mandatory direction from the BOP. Further, courts have routinely dismissed FTCA claims involving federal institutions' response to the COVID-19 pandemic - including other cases seeking relief based on the COVID-19 response at FCI Williamsburg specifically. See e.g., Fata v. United States, C/A No. 2:22-cv-04399-MGL-MGB, 2023 WL 8456142, at *5-6 (D.S.C. Aug. 15, 2023) (finding the discretionary function exception barred the plaintiff's COVID-19 claims involving the COVID-19 response at FCI Williamsburg), Report and Recommendation adopted by 2023 WL 8455256 (D.S.C. Dec. 6, 2023) (citing Hatten v. United States, C/A No. 4:21-cv-02912-JFA-TER, 2023 WL 2815335, at *6 (D.S.C. Jan. 24, 2023) (finding FTCA claim concerning response to COVID-19 barred by discretionary function exception, “Plaintiff has not presented evidence that would show that the memoranda or policies amounted to official policy that ‘[prescribes a course of action for an employee to follow'”) (quoting Gaubert, 499 U.S. at 322), Report and Recommendation adopted by, 2023 WL 2495870 (D.S.C. Mar. 14, 2023); Santiago v. United States, C/A No. 7:21-cv-00436, 2022 WL 790805, at *2 (W.D. Va. Mar. 14, 2022) (finding discretionary function exception applies to FTCA claim involving response to COVID-19 where plaintiff “has pointed to no federal statute, regulation, or policy that was binding on BOP or USP Lee officials”; noting that CDC guidance and 18 U.S.C. § 4042(a)(2) were not mandatory), appeal dismissed, 2022 WL 9721500 (4th Cir. July 8, 2022), and aff'd, 2023 WL 2610240 (4th Cir. Mar. 23, 2023)). The plaintiff's claim similarly fails on the second discretionary function inquiry because courts in this circuit have uniformly found that the conduct at issue (response to the COVID-19 pandemic by federal officials) involved public policy judgments. See Fata, 2023 WL 8456142, at *6 (internal citations omitted). As such, the discretionary function exception bars the plaintiff's FTCA claim and the instant matter is subject to summary dismissal.
RECOMMENDATION
The undersigned is of the opinion that the defects identified above cannot be cured by amending the amended complaint. Therefore, the undersigned recommends that the district court dismiss this action without prejudice, without leave to amend, and without issuance and service of process. See Britt v. DeJoy, 45 F.4th 790, 791 (4th Cir. 2022) (published) (noting that “when a district court dismisses a complaint or all claims without providing leave to amend . . . the order dismissing the complaint is final and appealable”).
The plaintiff is warned that if the United States District Judge assigned to this matter adopts this report and recommendation, the dismissal of this action for failure to state a claim could later be deemed a strike under the three-strikes rule. See Pitts v. South Carolina, 65 F.4th 141 (4th Cir. 2023).
The attention of the parties is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
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 committees 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 250 East North Street, Room 2300 Greenville, South Carolina 29601
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).