Opinion
C/A 21-2572-TMC-PJG
05-16-2023
Josand Farmer, Plaintiff, v. United State of America, Brian K. Dobbs, Defendant.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, MAGISTRATE JUDGE
Plaintiff Josand Farmer, a self-represented federal prisoner, 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 parties' cross motions for summary judgment. (ECF Nos. 91 & 97.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Farmer of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the defendant's motion. (ECF No. 100.) The motions are fully briefed. (ECF Nos. 104 & 106.) Having reviewed the record presented and the applicable law, the court finds that the Government's motion should be granted (ECF No. 85), Farmer's motion should be denied (ECF No. 83), and this case should be dismissed for lack of subject matter jurisdiction.
BACKGROUND
The following facts are either undisputed or are taken in the light most favorable to the plaintiff, to the extent they find support in the record. This matter arises out of the Federal Bureau of Prison's (“BOP's”) response to the COVID-19 pandemic. Farmer is an inmate in the Federal Correctional Institution (“FCI”) Williamsburg in Salters, South Carolina. Farmer contracted COVID-19 around December 22, 2020, which caused and continues to cause Farmer serious physical injury.
Farmer filed this action on August 11, 2021, raising claims of negligence against the Government for failing to protect him from COVID-19 by refusing to adhere to various statutes, regulations, and policies. The court previously granted the Government's motion to dismiss Farmer's negligence claims that were based on the BOP's failure to comply with statutes related to the BOP's general duty to manage prisons and care for inmates, 18 U.S.C. § 4042(a); statutes related to compassionate release or home confinement, 18 U.S.C. § 3582(c) (compassionate release or reduction of sentence) and 18 U.S.C. § 3624(c) (home confinement); and regulations and guidelines promulgated by the Centers For Disease Control, finding that such claims were barred by the discretionary function exception to the FTCA. (Order, ECF No. 81 at 7-8.)
However, Farmer also claimed that the BOP was negligent for failing to adhere to its own policies and procedures meant to protect inmates from COVID-19, citing memoranda from the BOP establishing “Action Plans” for federal prisons on how to manage the COVID-19 pandemic. For example, Farmer alleged that prison officers were tested after entering the prison, rather than outside the prison. Farmer also alleged that incoming inmates who tested positive before entering the prison were placed on Farmer's cell block. Farmer further alleged that quarantine procedures were not followed for inmates who returned from hospitalization for non-COVID reasons. As to these allegations, the court concluded that the record before the court at that time was not sufficient to address the issue because the court was unable to determine from the memoranda and policies alone whether the policies prescribed specific conduct for BOP officials to follow. Therefore, the court denied the Government's motion as to Farmer's claims based on the BOP's failure to follow its own policies and procedures without prejudice to raise the issue again on a more developed record. (Id. at 11.)
DISCUSSION
A. Summary Judgment
Summary judgment is appropriate only if the moving party “shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). Rule 56 mandates entry of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding whether there is a genuine issue of material fact, the evidence of the nonmoving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(c), (e); Celotex Corp., 477 U.S. at 322. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Erickson v. Pardus, 551 U.S. 89 (2007), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. The Discretionary Function Exception
The Government argues that despite having the opportunity to conduct discovery on the issue of whether the discretionary function exception applies to his claims that the BOP was negligent in failing to adhere to its own COVID-19 policies and procedures, Farmer has failed to meet his burden of showing that the discretionary function exception does not apply and that his claim falls within the FTCA's waiver of immunity. The court agrees.
In light of the court's recommendation, the court need not address the Government's argument that Farmer's claims are barred by the FTCA's quarantine exception. See 28 U.S.C. § 2680(f).
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.”). Crucially, the burden is on the plaintiff to establish that the discretionary function exception does not foreclose his claim and deprive the court of subject matter jurisdiction. Blanco Ayala, 982 F.3d at 214 (quoting Indem. Ins. Co. of N. Am. v. United States, 569 F.3d 175, 180 (4th Cir. 2009); 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.” Gaubert, 499 U.S. at 322. Second, if the actions are discretionary, the court must then determine whether the defendant's decision was made based on considerations of public policy. Id. at 322-23; Berkovitz, 486 U.S. at 536-37.
Here, the Government argues that the discretionary function exception applies because the BOP's COVID-19 policies and procedures, taken as a whole, gave BOP officials discretionary authority to meet the broader goals of COVID-19 mitigation; therefore, the BOP officials' actions involved policy judgments. Farmer argues the BOP policies and procedures were mandatory, and therefore the purportedly negligent officials lacked the discretion to disregard those policies.
Farmer bears the burden of demonstrating that the discretionary function exception does not apply to his claims. See Blanco Ayala, 982 F.3d at 214. Despite having availed himself of the opportunity to conduct discovery on this issue, Farmer fails to identify any evidence that shows that the BOP's COVID-19 policies and procedures were mandatory. Farmer attaches more than two hundred pages of documents produced in discovery that he claims shows that FCI Williamsburg officials were under mandatory direction from the BOP. (Pl.'s Mot. Summ. J., ECF No. 9-10.) However, Farmer fails to explain what about the policies shows that the BOP officials' duties were mandatory. As the court found in its previous Report and Recommendation, the memoranda and policies issued by the BOP do not establish whether the protective measures described within them are mandatory policies, mere guidance, or something else. The memoranda and policies from BOP provide no context for the court to determine whether they were mandatory. Farmer fails to put forth evidence that shows the policies and procedures imposed mandatory duties on BOP officials, and it is his burden to show that the discretionary function exception does not apply to his claims. See Blanco Ayala, 982 F.3d at 214. Consequently, the court concludes that the discretionary function exception bars Farmer's negligence claim in this case.
The court notes that it is the parties' responsibility to explain what evidence supports their claims and cite to relevant portions of the record. Attaching documents and asking the court to search through them to find evidence is not sufficient to support a motion for summary judgment. Fed.R.Civ.P. 56(c)(1).
RECOMMENDATION
Based on the foregoing, the court recommends that the Government's motion be granted (ECF No. 97), Farmer's motion be denied (ECF No. 91), and this case be dismissed for lack of subject matter jurisdiction.
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).