Opinion
C. A. 4:21-2912-JFA-TER
03-14-2023
MICHAEL HATTEN, PLAINTIFF, v. UNITED STATES OF AMERICA, Defendant.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
This is a civil action filed pro se by Michael Hatten (“Plaintiff”/ “Hatten”) on September 10, 2021, under the Federal Tort Claims Act (FTCA). Plaintiff filed an amended complaint on October 15, 2021. (ECF No. 20).This matter is currently before the court on Defendant's Motion to Dismiss filed July 11, 2022. (ECF No. 48). As the Plaintiff is proceeding pro se, the court issued an order on or about June 13, 2022, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the Motion to Dismiss procedure and the possible consequences if he failed to respond adequately. Plaintiff filed a response in opposition on June 28, 2022. (ECF No. 51). Defendant filed additional attachments to the Motion to Dismiss on November 3, 2022. Plaintiff filed a response in opposition to the additional documents submitted by Defendants. (ECF No. 54). On January 10, 2023, the court issued an order giving the parties ten-days to file any supplemental briefs, arguments, or material with relation to the motion to dismiss for lack of jurisdiction pursuant to Rule 12(b)(1) with regard to the allegation of negligence on the part of the BOP/FCI Williamsburg for failing to adhere to its own Covid-19 response plans. (ECF No. 55). On January 23, 2023, Plaintiff filed a “Supplemental Memorandum Brief” generally repeating his previous arguments. (ECF No. 58).
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d),DSC. Because this is a dispositive motion, the report and recommendation is entered for review by the District Judge.
The United States filed the supplement to “inform the Court that in a suit also coming out of FCI Williamsburg with a largely identical complaint, the United States completed discovery on the discretionary function exception. See Sanford v. United States, 0:21-cv-02552-RMG, Dkt. Nos. 83, 85, 86, 96, and 97. In particular, the United States produced discovery related to the policies in place at times relevant to Hatten's complaint . . .” (ECF No. 53).
FACTS
The following facts are taken as true for purposes of this Motion to Dismiss by Defendant. This action arises out of the Federal Bureau of Prison's (“BOP”) response to the COVID-19 pandemic. Plaintiff is an inmate housed in the Federal Correctional Institution Williamsburg (“FCI Williamsburg”) in Salters, South Carolina. Plaintiff was denied his request for release to home confinement and later contracted COVID-19.Plaintiff unsuccessfully pursued his remedies by filing an Administrative Tort Claim which was denied on July 26, 2021. Plaintiff filed this action on September 10, 2021.
Defendant argues that this action should be dismissed for lack of jurisdiction due to the discretionary function exception to the FTCA.
STANDARD FOR MOTION TO DISMISS
This matter is before the court on Defendants' Motion to Dismiss pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure. Under Rule 12(b)(6) of the Fed.R.Civ.P., “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Lokhova v. Halper, 995 F.3d 134, 141 (4th Cir. 2021) quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). “Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we ‘are not bound to accept as true a legal conclusion couched as a factual allegation.' ” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
A motion to dismiss 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).
ALLEGATIONS
In the amended complaint, Plaintiff brings this action pursuant to the FTCA alleging that Defendant United States of America, through its employees at FCI Williamsburg, was negligent and breached a duty of care owed to him by failing to protect him from COVID-19. Specifically, Plaintiff raises claims of negligence against the Government for failing to protect him from COVID-19 by refusing to adhere to various statutes, regulations, and policies. Plaintiff asserts that the BOP had a duty to manage and regulate correctional institutions and provide protection; that the Attorney General issued a memorandum instructing BOP directors to increase the use of home confinement at institutions most affected by COVID-19; that the CDC issued findings for specific protective measures that should be implemented such as mask wearing and social distancing; and that he requested compassionate release/home confinement from the Warden because it was impracticable to follow the preventative guidelines while in confinement with cell mates in small cells but his request was denied.
In addition to alleging that the employees at FCI Williamsburg were negligent in failing to follow statutory directives related to compassionate release and Center for Disease Control (“CDC”) guidelines with regard to Covid-19, Plaintiff alleges negligence on the part of the BOP for failing to adhere to its own policies and procedures to protect inmates from Covid-19. Plaintiff claims that as a direct result, he contracted COVID-19. Specifically, Plaintiff alleges that the CDC, DOJ, and BOP “issued non-discretionary protective measures that every individual should implement or adhere to in an effort to prevent individuals from contracting or spreading COVID-19.” (ECF No. 20 at 3). Plaintiff asserts that he requested to be transferred to home confinement due to the inability to practice safe distancing within the prison or to follow the other preventative steps and due to FCI Williamsburg abandoning certain preventive measures. In particular, Plaintiff alleges that FCI Williamsburg abandoned preventive measures by not screening officers and staff outside the facility, allowing inmates who tested positive at other facilities to transfer into FCI Williamsburg, and allowing inmates to self-surrender to the facility even it they tested positive. Plaintiff alleges that inmates who tested positive at other facilities were placed in his cell block, that infected inmates were allowed to pass out meal trays, and that officers failed to properly wear protective gear including masks. Plaintiff contends that his cellmate contracted COVID-19 on December 23, 2020, and he later contracted COVID -19 due to the negligence of Defendant's employees and is suffering long-term effects of contracting the virus. He seeks compensatory damages in the amount of $300,000.00 for physical injury and symptoms related to COVID-19.
DISCUSSION
Applicable Law
The Defendant moves to dismiss this action on the grounds that the court lacks jurisdiction over this action due to the discretionary function exception to the FTCA. 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.”).
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. See Blanco, 982 F.3d at 214.
The court must undertake a two-step inquiry to determine whether the discretionary function exception forecloses a claim. See Sanders v. United States, 937 F.3d 316, 328 (4th Cir. 2019); United States v. Gaubert, 499 U.S. 315, 322 (1991); Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536 (1988) (establishing a two-prong test to determine whether the discretionary function exception applies-it “will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow,” but it will apply when “governmental actions and decisions [are] based on considerations of public policy”). 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. See United States v. Gaubert, 499 U.S. 315, 322 (1991). 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. See Gaubert, 499 U.S. at 322-23; Berkovitz, 486 U.S. at 536-37.
Negligence for Failure to Follow Statutory and CDC Guidelines
Plaintiff argues that he contracted COVID-19 because the Defendant was negligent in failing to follow mandatory statutory and CDC guidelines. Specifically, Plaintiff argues that “The United States (Brian K. Dobbs) had a non-discretionary duty to the plaintiff pursuant to 18 U.S.C. 4042 (duty of care)” (ECF No. 20 at 5).
18 USC § 4042-Duties of Bureau of Prisons provides in relevant part as follows:
(a) In general.--The Bureau of Prisons, under the direction of the Attorney General, shall
(1) have charge of the management and regulation of all Federal penal and correctional institutions;
(2) provide suitable quarters and provide for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the United States, or held as witnesses or otherwise;
(3) provide for the protection, instruction, and discipline of all persons charged with or convicted of offenses against the United States;18 U.S.C.A. § 4042 (West).
Defendant avers that with regard to 18 U.S.C. §4042(a), courts have historically and widely held this duty of care is discretionary. Defendant states that “although the BOP must care for all persons charged with or convicted of offenses against the United States pursuant to 18 U.S.C. §4042(a),the BOP retains the broad discretion regrading the implementation of those mandates.”
Defendant argues that CDC guidance on protective measures, including social distancing, wearing masks, washing hands frequently, cleaning surfaces frequently, and avoiding group activities or gatherings fails as none of the general guidance, which was given to the public, was mandatory, much less directly applicable to correctional facilities. Defendant argues that throughout the COVID-19 pandemic, the CDC regularly updated its website with guidance for the public to prevent the spread of the disease, the guidance changed throughout the pandemic at various time, and the guidance is still changing and evolving with some previous guidance no longer available. (ECF 48 at 14). Further, Defendant asserts that while Plaintiff did not specifically raise it in his complaint, the CDC issued interim guidance specifically for correction and detention facilities on March 23, 2020, stating it was based on what was currently known about the disease as of that date. Defendant argues that this interim guidance explained that “it provide[d] ‘guidance' and ‘recommendations' for facilities to ‘consider' and which ‘may need to be adapted based on individual facilities.'” Defendant points to language in several interim guidelines that contain terms like “consider,” “if possible,” “encourage,” and “where security concerns allow,” demonstrating the guidance was non-binding and required considerable judgment and choice by government officials how to craft applicable COVID-19 policies for its facilities.
The negligence claim as it relates to prison officials failure to follow statutory and CDC guidelines has recently been raised by other plaintiffs housed in the FCI Williamsburg and addressed by courts in this district. See Farmer v. United States, No. 0:21-CV-2572-TMC, 2022 WL 3500363 (D.S.C. Aug. 18, 2022); Sanford v. United States, No. CV 0:21-2552-RMG, 2022 WL 1210717 (D.S.C. Apr. 25, 2022). In Sanford, the court found:
18 U.S.C. § 4042(a) provides the BOP's general duty to manage and safekeep facilities, but the BOP “retains discretion regarding the implementation” or the “broad directives” in § 4042(a). Rich v. United States, 811 F.3d 140, 145 (4th Cir. 2015). Legislation concerning an inmate's reduced sentence or in home confinement (such as § 3582(c), § 3624(c), and the CARES Act) similarly leave that decision to the BOP's discretion upon initial application from the inmate. See, e.g., § 3582(c)(2) (“The authority under this subsection may be used to place a prisoner in home confinement”); McCarson v. Reherman, No. 2:20-cv-1386-HMH-MGB, 2020 WL 2110770 (D.S.C. May 4, 2020)
(noting that the “CARES Act affords the BOP broad discretion during the COVID-19 pandemic”). The discretionary function exception to the FTCA therefore applies to Plaintiff's claim as it relates to prison officials' failure to adhere to statutory authority. Second, regarding the CDC's 2019 statements on measures such as social distancing, mask wearing and quarantining, because the agency's guidelines are advisory and do not mandate any particular conduct by the BOP, prison officials may in their discretion not adopt them as BOP policy.
The undersigned agrees Defendant's adherence to the CDC guidelines and the BOP general duties under 18 U.S.C. §4042 falls within the discretionary function exception to the FTCA. Therefore, Defendant's Motion to Dismiss as it relates to Plaintiff's negligence claims based on the general duties found in 18 USC §4042 and the regulations and guidelines by the CDC, should be granted as these claims are barred by the discretionary function exception to the FTCA.
Negligence on the Part of the BOP for Failing to Adhere to Covid-19 plans
Plaintiff alleges negligence on the part of the BOP for failing to adhere to its own plans/policies and procedures. Specifically, Plaintiff asserts that FCI Williamsburg abandoned its own plans/policies and procedures for preventive measures of screening officers and staff outside the facility, allowing inmates who tested positive at other facilities to transfer into FCI Williamsburg, and allowing inmates to self-surrender to the facility even it they tested positive. Plaintiff alleges that inmates who tested positive at other facilities were placed in his cell block, that infected inmates were allowed to pass out meal trays, and that officers failed to properly wear protective gear including masks. Plaintiff asserts that these plans/policies and procedures were mandatory and, therefore, the negligent officials lacked the discretion to disregard them.
Defendant argues that the discretionary function exception applies because the BOP's COVID-19 plans/policies and procedures and, therefore, the BOP officials' actions involved judgments and choices about the appropriate response to COVID-19 that were discretionary and involved policy judgments.
As set forth above, Plaintiff bears the burden of demonstrating that the discretionary function exception does not apply to his claims. See Blanco Ayala, 982 F.3d at 214. If the discretionary function applies, then the claim is outside the limited waiver of immunity created by the FTCA and the district court is without subject matter to adjudicate it. Medina v. United States, 259 F.3d 220, 223-24 (4th Cir. 2001). The FTCA's limited waiver of sovereign immunity and its exceptions must be strictly construed in favor of the sovereign. Id. at 650-51; Lane v. Pena, 518 U.S. 187, 192 (1996). The discretionary function exception preserves sovereign immunity even if the Government was negligent, Blakey v. U.S.S. Iowa, 991 F.2d 148, 152 (4th Cir. 1993), and even if the government employee abused his or her discretion. 28 U.S.C. § 2680(a).
Plaintiff must plausibly allege “facts which would support a finding that the challenged actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory regime.” Gaubert, 499 U.S. at 325. Specifically, if the employee had discretion because no statute, regulation, or policy required a particular action, then the employee's conduct must be susceptible to an analysis involving social, economic, or political policy considerations. Gaubert, 499 U.S. at 322-23. The employee need not have conducted a policy analysis in connection with the challenged action or inaction for the exception to apply. Gaubert, 499 U.S. at 325. The court must analyze the conduct at issue objectively, with an inquiry as to whether the employee's decision is one where the court would expect inherent considerations of policy, rather than a subjective fact-based focus on the circumstances surrounding the employees' exercise of a particular discretionary function. Baum v. United States, 986 F.2d 716, 720-21 (4th Cir. 1993). When the employee is acting pursuant to a discretionary statute, regulation, or guideline, there is a strong presumption that the employee's conduct is grounded in the policies underlying that provision. Gaubert, 499 U.S. at 324; Bernaldes v. United States, 81 F.3d 428, 429 (4th Cir. 1996). In Clendening v. United States, 19 F.4th 421,434 (4th Cir. 2021), cert. denied, No. 21-1410, 2022 WL 16726024 (U.S. Nov. 7, 2022), the court held that “ ‘[t]he existence of some mandatory language does not eliminate discretion when the broader goals sought to be achieved necessarily involve an element of discretion.' Holbrook v. United States, 673 F.3d 341,348 (4th Cir. 2012) (quoting Miller v. United States, 163 F.3d 591, 595 (9th Cir. 1998)) (finding the directive that “[t]he [Federal Aviation] Administrator shall issue an airworthiness certificate when the Administrator finds that the aircraft conforms to its type certificate and, after inspection, is in condition for safe operation” could not be read to remove all discretionary ‘safety-related decisions' (citations omitted)).” Id. The Court further held that “[w]e have considered various statutes, public laws, and regulations containing some mandatory language, such as “shall,” but found discretion remained with the Government where the “general, sweeping language” of the text did not remove all relevant decisions from their control. Baum v. United States, 986 F.2d 716, 721-22 (4th Cir. 1993); see Holbrook, 673 F.3d at 348-49.” Id.
In support of its motion, Defendant cites to Sanford v. United States of America, 0:21-cv-2552-RMG where another inmate at FCI Williamsburg raised the dame claims. Defendants submit the same supporting evidence that was submitted in Sanford. The district judge adopted the report and recommendation in Sanford by order on December 2, 2022, which addressed basically the same argument and evidence submitted by the Defendant in this case. The court in Sanford held as follows:
In Defendant's supplement to the Motion to Dismiss, Defendant United States of America states that it filed the supplement to “inform the Court that in a suit also coming out of FCI Williamsburg with a largely identical complaint, the United States completed discovery on the discretionary function exception and produced discovery related to the policies in place at times relevant to Hatten's complaint and whether those policies were discretionary or mandatory.” (ECF No. 53 at 1). Defendant goes on to assert that in Sanford, the United States moved for summary judgment and the Magistrate Judge has recommended the District Court grant the United States' motion. Defendant asserts that “The United States is filing concurrently with this supplement the documents related to the policies in place at BOP and FCI Williamsburg provided to that court in support of the United States' motion.” (Id. at 2). Plaintiff filed a response in opposition to the Defendant's supplement arguing that the documents submitted “do indeed display clearly that the FCI Williamsburg and its staff were in fact under mandatory policies during the time the plaintiff was subjected to and contracted COVID-19 due to the United States negligent acts.” (ECF No. 54 at 3).
The report and recommendation in Sanford v. United States of America, concludes that the “memoranda submitted describe themselves as ‘guidance,' ‘general principles,' or ‘recommended approaches.' On the other hand, the policies also use mandatory language to describe the guidance, principles, or approaches. But Plaintiff does not present any evidence that would show that these memoranda or policies amounted to official policy that ‘prescribes a course of action for an employee to follow.' Gaubert, 499 U.S. at 322. The only evidence in the record is the memoranda and policies themselves, which are ambiguous and provide no context for the court to determine whether they amounted to a mandate or just guidance. Therefore, Plaintiff fails to show the BOP officials' actions were not discretionary and did not involve an element of judgment or choice based on considerations of public policy. Id.” Sanford v. United States of America, 0:21-cv-2552-RMG-PJG, ECF No. 97 at 7. This report and recommendation was adopted by the court on December 2, 2022.
. . . the evidence regarding the BOP's COVID-19 policies does not suggest there was a mandatory course of action to be followed. And Plaintiff does not provide or point to any additional information in his objection. Thus, Plaintiff's negligence claim based on the BOP's alleged failure to follow its own COVID-19 protocols is barred by the discretionary function exception.Sanford v. United States of America, 0:21-cv-2552-RMG , ECF No. 103 at 5.
The undersigned has reviewed the voluminous evidence submitted, including the policies and memorandums. They include descriptive terms indicating guidance, recommendations, general principles, and recommended approaches, but they do contain mandatory language to describe the guidance, recommendations, principals, and approaches. Here, Plaintiff has not presented evidence that would show that the memoranda or policies amounted to official policy that “[p]rescribes a course of action for an employee to follow.” See Gaubert, 499 U.S. at 322. The memorandum and policies contain ambiguity and provide no context for the court to make a determination as to whether the policies are mandatory or just guidance. Clearly, it is Plaintiff's burden to show otherwise. This court agrees with the analysis in the Sanford case and finds that the same analysis applies to this case. See also, Santiago v. United States, No. 7:21CV00436, 2022 WL 790805, at *3 (W.D. Va. Mar. 14, 2022), appeal dismissed, No. 22-6416, 2022 WL 9721500 (4th Cir. July 8, 2022) (. . .the development and implementation of safety protocols in federal prisons is unquestionably based on considerations of public policy. Federal prisons have limited space and resources, so social distancing is not always possible. . . hand sanitizer can pose their own safety concerns, as they can be used by inmates as weapons or drugs. The BOP must balance its duty to protect inmates from COVID-19 with its duty to protect inmates from each other, to safeguard staff, and to protect the public. “Prison administrators ... should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.”) (internal citations omitted). Therefore, as Plaintiff fails his burden, his negligence claim based on the BOP's failure to follow its own COVID-19 protocol is barred by the discretionary function exception and Defendant's Motion to Dismiss for lack of jurisdiction should be granted.
Based on this recommendation, the court need not address the Defendant's argument that the claims are barred by the FTCA quarantine exception as set forth in 28 U.S.C. 2680(f).
RECOMMENDATION
Based on the above reasoning, it is RECOMMENDED that Defendant's Motion to Dismiss (ECF No. 48) be granted and this action dismissed for lack of jurisdiction.
The parties' attention is directed to the important notice on the next page.