Opinion
C. A. 5:21-CV-3249-JD-KDW
07-18-2022
Johnnie Henderson, Plaintiff, v. United States of America, and Ofc. Craig Snyder, Defendants
REPORT AND RECOMMENDATION
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE
Plaintiff Johnnie Lee Henderson is a former federal inmate who filed this action in federal court on October 5, 2021, pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1), et. seq., against Defendant United States of America (“United States” or the “Government”) as well as a claim pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) against Defendant Snyder. This matter is before the court on a Motion to Dismiss Plaintiff's Complaint filed by the United States on December 13, 2021. ECF No. 9. Plaintiff filed a Response to the Motion on January 26, 2022, ECF No. 16. The United States filed a Reply on February 16, 2022. ECF No. 19. This matter is 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 for the district judge's consideration.
I. Factual Background
As alleged in his Complaint, on May 30, 2019, Plaintiff was an inmate at FCI Edgefield housed in the Special Housing Unit (the “SHU”). ECF No. 1 at 3. Defendant Snyder was a federal correctional officer on duty in the SHU. Id. On that day, Plaintiff requested cleaning supplies to clean his cell. Id. Defendant Snyder brought a cup of cleaning chemicals to Plaintiff who stretched his hands through the serving/food box to retrieve the items from Defendant Snyder. Id. Defendant Snyder deliberately and willfully threw the cup of chemicals in Plaintiff's face and eyes, as well as slammed his hand in the serving/food box. Id. Plaintiff suffered pain and significant injury because of this interaction. Id. According to the Complaint, Defendant Snyder also turned the water to Plaintiff's cell off, thereby preventing Plaintiff from washing the chemicals from his eyes and causing additional pain and injury. Id.
According to the allegations in the Complaint, other correctional officers failed to intervene and respond in a timely manner. Id. at 4. Plaintiff was then transferred to Aiken Regional Medical Center, where he received treatment for chemosis, conjunctivitis to his eyes, visual impairment, bleeding and a contusion to his hand. Id. Plaintiff continued to suffer injuries as a result of this incident. Id. Plaintiff alleged Snyder deliberately and knowingly falsified an incident report in order to impede or obstruct the investigation. Id. Defendant Snyder was terminated, and criminal charges were filed as a result. Id. On February 24, 2020, Defendant Snyder pled guilty to an offense of “Deprivation of Rights Under Color of Law,” a violation of 18 U.S.C. § 242.
Plaintiff asserts two causes of action in his Complaint: (1) grossly negligent hiring, supervising and training against the United States pursuant to the Federal Tort Claims Act; and (2) a Bivens actions due to an alleged violation of his Eighth Amendment rights against Defendant Snyder. Plaintiff alleges that FCI Edgefield was grossly negligent in their failure to hire, supervise, and train correctional staff working at the prison. Id. Plaintiff further alleges that FCI administration and/or supervisors knew or should have known that Defendant Snyder had a propensity to harm inmates based on his prior actions and disciplinary history but failed to investigate or take appropriate action. Id.
II. Standard of Review
Defendant United States 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. United States, 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
A. Vicarious Liability Under the FTCA
Plaintiff brought suit against the United States under the Federal Tort Claims Act (the “FTCA”). The United States argues that Plaintiff's claims against the United States should be dismissed for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). Typically, the United States is immune from suit. However, the FTCA waives this immunity for “certain torts committed by federal employees.” FDIC v. Meyer, 510 U.S. 471, 475-76 (1994). Thus, the FTCA confers upon the district courts:
exclusive jurisdiction of civil actions on claims 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, 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). Under the FTCA, liability exists when the claimant establishes that the negligent or wrongful act or omission of a government employee occurred while the employee was acting with the scope or employment under circumstances imposing liability upon a private employer. The United States argues that it cannot be held vicariously liable under the FTCA for the acts of Defendant Snyder because he was not acting within the scope of his employment when he participated in the conduct complained of by Plaintiff. Def's. Br. at 13. In response, Plaintiff argues that Defendant Snyder's conduct was within the scope of employment because correctional officers are often faced with situations where they engage in scuffles with inmates and/or engage in conduct that might be considered “excessive force.” Pl's. Br. at 5-6.
While courts look to federal law to determine whether someone is a federal employee for purposes of the FTCA, the question of whether a federal employee was acting within the scope of his employment when a tort was committed, is governed by state law. see 28 U.S.C. § 1346(b)(1); Shumaker v. United States, 714 F.Supp. 154, 158 (M.D. N.C. 1988) (citing Horton v. United States, 622 F.2d 80, 82 (4th Cir. 1980)); Miller v. United States, 932 F.2d 301, 303 (4th Cir. 1991). In analyzing whether the United States is liable for Defendant Snyder's conduct, the undersigned must also consider state law respondeat superior principles. See Kerns v. United States, 585 F.3d 187, 194 (4th Cir. 2009) (“the underlying cause of action in an FTCA claim is derived from the applicable state law”).
Under South Carolina law, a servant is regarded as acting with this scope of employment if he or she is doing some act in furtherance of the master's business even if the employee exceeded his or her authority. Berkeley-Dorchester Ctys. Eco. Dev. Corp. v. U.S. Dept. of Health & Human Servs., 395 F.Supp.2d 317, 323 (D.S.C. 2005). Conversely, if a servant acts for his own independent purpose, wholly disconnected from the master's business, his conduct will fall outside the scope of employment. Crittenden v Thomas-Walker Co., Inc., 341 S.E.2d 385, 387, 288 S.C. 112 (S.C. Ct. App. 1986). This is true, no matter how short the time the relationship is temporarily suspended. Kase v. Ebert, 708 S.E.2d 456, 458, 392 S.C. 57 (S.C. Ct. App. 2011). Doubts as to whether a servant is acting withing the scope of employment are resolved against the master. S.C. State Budget & Control Bd., Div. of Gen. Servs., Ins. Rsrv. Fund v. Prince, 403 S.E.2d 643, 646-47, 304 S.C. 241 (1991). In Crittendon, the South Carolina Court of Appeals found that there was sufficient evidence to support a finding that a servant acted within the scope of employment, taking into consideration factors such as the fact that the assault occurred at the job site during normal working hours and the relationship between the servant and the individual he attacked arose solely from his position as an employee. Crittendon, 341 S.E.2d at 387.
The United States argues that Defendant Snyder's actions in assaulting Plaintiff by throwing chemicals in his face, slamming his hand in the cell door flap, and turning off the water to Plaintiff's cell all occurred outside the scope of Snyder's employment. The United States provides several reasons to support a finding that Defendant Snyder's actions were outside the scope of his employment. First, the United States argues that Snyder failed to follow Bureau of Prisons (“BOP”) policy when he assaulted Plaintiff. Second, the United States argues that Snyder stepped away from his position as a correctional officer and assaulted Plaintiff for his own personal reasons, for which he was later prosecuted. The United States does not argue that the allegations are not true; instead, the United States argues that, as a matter of law, the court should find Defendant Snyder acted outside his scope of employment. The United States cites to several cases to support the proposition that Defendant Snyder was outside the scope of employment based on the relevant case law. Plaintiff obviously disagrees.
The United States points out that while Plaintiff lists fifteen allegations under the FTCA for grossly negligent hiring, supervising and training, it is unclear whether he asserts each one separately or under the umbrella of one tort claim. In reviewing the Complaint, Plaintiff asserts he is “filing a cause of action against the Defendant United States for grossly negligent hiring, supervising, and training. ECF No. 1 at 2 (emphasis added). For the purposes of this motion, the characterization of the allegations is not dispositive.
The undersigned is unconvinced that cases involving sexual assault are applicable to the case at bar. While perhaps instructive, the cases cited involving sexual assault are distinguishable in that engaging in a sexual relationship clearly has no relationship to an individual's federal employment duties. For example, Lins v. United States, 847 Fed.Appx. 159 (4th Cir. 2021) involved a therapist engaging in a sexual relationship with her patient. The conduct in question was therefore an ongoing sexual relationship and some, but not all, of the conduct occurred during business hours at the therapist's office. Lins, 847 Fed.Appx. at 168. Moreover, Lins was analyzed under Maryland law, which requires an employee's actions be “authorized” by an employer to be within the scope of employment. Similarly, in Gainey v. Kingston Plantation, No. 4:06-3373-RBH, 2008 WL 706916, at *6 (D.S.C. 2008), the judge recommended finding, at the summary judgment stage, that an employee was outside the scope of his employment when he asked a hotel employee, who he had previously left a note to call him “for a good time,” to “take a break,” when he was wearing shirt, boxer shorts, and socks and then grabbed her arm and attempted to pull her into a hotel unit they were cleaning.
Plaintiff in essence argues that Officer Snyder was acting within the scope of his employment in performing a task related to his job description when the alleged tort occurred. Plaintiff argues that the cases cited by the United States are all distinguishable from this case. Instead, Plaintiff argues that as stated in Lins v. United States, a case also relied upon by the United States, whether an employee's conduct is “reasonable” or “foreseeable” must be analyzed on a case-by-case basis, typically reserving such a question of fact for a jury. Further, Plaintiff argues that 28 U.S.C. § 2680(h) specifically permits actions by private citizens against “law enforcement” alleging battery or other intentional torts. However, the undersigned agrees with the United States that an employee must still be within his scope of employment, regardless of whether this proviso applies.
Essentially, the United States suggests that a federal correctional officer who assaults or batters an inmate while in his employ is likely functioning outside the scope of his employment. In Armstrong v. Food Lion, Inc., the court directed a verdict for an employer after finding that the petitioners failed to produce evidence that the employees were acting within the scope of employment when the employees attacked two patrons. 639 S.E.2d 50, 371 S.C. 271 (S.C. 2006). However, Armstrong is distinguishable because it was decided after the parties had the opportunity to present evidence, some of which included witness testimony that the employees had been “goofing off,” and further, that at least one employee had previously had a confrontation with one of the patrons. Armstrong, 639 S.E.2d at 52. In Hamilton v. Davis, analyzed at the summary judgment stage, the court reasoned that the employee “stepped away” from his employment when attacking an individual because the assault was clearly personal in nature and indulged in for the employee's own personal amusement. 389 S.E.2d 299, 300, 300 S.C. 411 (1990). At this stage in the litigation, similar evidence is not before the undersigned.
The undersigned is tasked with determining whether the Complaint alleges facts upon which subject matter jurisdiction can be based. Plaintiff has alleged that Officer Snyder threw a cup of cleaning chemicals in his face and slammed his hand in the prison cell flap while Officer Snyder was working as a federal correctional officer. Plaintiff alleged that he sought the cleaning supplies to clean his cell, and instead of handing Plaintiff the cleaning supplies, Defendant Snyder, who was on duty in the SHU, threw the chemicals in his face and injured Plaintiff's hand. This conduct occurred while at Defendant Snyder's place of employment and arose as a result of his relationship with Plaintiff; namely that Plaintiff was an inmate who Defendant Snyder was responsible for monitoring during the workday. Indeed, the Davis court pointed out that a distinguishing factor in cases where assaults were found to be within the scope of employment, the employee was in some way furthering the master's business. 389 S.E.2d at 299. It is conceivable that in the present case, Plaintiff may present evidence that Defendant Snyder's interaction with him was somehow connected to what he believed to be his job duties. Here, the undersigned recommends denying the United States' Motion to Dismiss on the grounds that the court is without subject matter jurisdiction to hear this case because Defendant Snyder was acting outside the scope of employment as required under the FTCA.
As to the United States' argument that Defendant Snyder was not acting pursuant to BOP policies and/or that his actions violated BOP policies, the undersigned does not find this argument to be dispositive, either. The United States generally provides several BOP policies outlining: (1) the appropriate conditions of confinement in the Special Housing Units (BOP Program Statement 5270.11); (2) the use of force and application of restraints (BOP Program Statement 5566.06); and (3) personal conduct (BOP Program Statement 3420.11). However, the undersigned does not agree with the United States' argument that the allegations in Plaintiff's Complaint conclusively demonstrate that his actions were in no way related to the BOP policies. Federal Rule of Civil Procedure 8(a) requires a short, plain statement of facts in the pleadings. Therefore, at this stage of the litigation, the undersigned recommends denying The United States' Motion to Dismiss on this ground.
While matters outside the pleadings are generally not considered on a 12(b)(6) motion, the court may consider matters of judicial notice without converting the motion into one for summary judgment. Hirtenstein v. Cempra, Inc., 348 F.Supp.3d 530, 549 (M.D. N.C. 2018).
B. The Discretionary Function Exception under the FTCA
The United States argues that the discretionary function exception under the FTCA bars any claims brought by Plaintiff. Plaintiff argues that 28 U.S.C. § 2680(h) specifically permits actions by private citizens against “law enforcement” alleging battery or other intentional torts. The undersigned is satisfied that, pursuant to § 2680(h), Defendant Snyder meets the definition of law enforcement officer. Still, the United States argues that the discretionary function exception, 28 U.S.C. § 2680(a), is applicable to this case.
28 U.S.C. § 2680(h) defines “investigative or law enforcement officer” as any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.” Correctional officers are considered “law enforcement officers.” Coppola v. United States, 2018 WL 4677853, at *9 (N.D.W.Va. June 26, 2018).
Under the FTCA's intentional tort exception, 28 U.S.C. § 2680(h) the United States is not liable for the intentional torts of employees, unless the tort is committed by a law enforcement officer. However, if “the actions underlying intentional tort allegations described in § 2680(h), [are] authorized and implemented consistent with federal law and the Constitution of the United States, [such actions] may be considered discretionary functions under § 2680(a).” Reyes-Filiciano v. United States, No. 1:18-cv-76, 2019 WL 9077311, at *12 (N.D. W.Va. Dec. 19, 2019). According to the discretionary function exception, the FTCA will not apply to:
any 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). A plaintiff must overcome the discretionary function exception found in § 2680(a) before a court can consider the merits of an intentional tort claim against a corrections officer. Kaufman v. United States, 84 F.Supp.3d 519, 525 (S.D. W.Va. 2015). Thus, if a defendant shows that the tortious conduct involved a discretionary function, a plaintiff cannot maintain an FTCA claim. In other words, if this exception applies, then the claims fall outside of the limited waiver of immunity and the district court is without subject matter jurisdiction over these claims. Medina v. United States, 259 F.3d 220, 224 (4th Cir. 2001). A district court, in considering whether the intentional tort exception applies, must first determine whether a defendant was performing a discretionary function at the time the injuries occurred. See Medina v. United States, 259 F.3d 220, 26 (4th Cir. 2001) (concluding that a plaintiff who alleges an intentional tort against a law enforcement officer must first clear the discretionary function hurdle). The United States will not be held liable for claims based upon the exercise or performance or the failure of such to perform a discretionary function of duty on the part of the federal employee. See Williams v. United States, 5 F.3d 299, 308 (4th Cir. 1995).
The discretionary function applies even if the Government was negligent, and even if the government employee abused his discretion. See 28 U.S.C. § 2680(a); DeOrio v. United States, No:0:20-cv-4129-RMG, 2021 WL 3856207, at *2 (D.S.C. August 30, 2021). Further, the FTCA's limited waiver of sovereign of immunity and its exceptions must be strictly construed in favor of the sovereign. Welch v. United States, 408 F.3d 646, 650 (4th Cir. 2005). Plaintiff has the burden of showing that the FTCA waiver applies, and the statutory exception does not apply. Welch, 408 at 651. The United States argues that the discretionary function exception applies to both Plaintiff's claims for negligent hiring, training, and supervision, as well as to Plaintiff's claim for failure to protect, to the extent that claim is being brought against the United States. Def.'s Br. at 30; 40. By contrast, Plaintiff argues that the discretionary function should not apply because Defendant Snyder was specifically prohibited from his actions by BOP policy. Pl.'s Br. at 12.
With this backdrop in mind, the undersigned considers the application of the discretionary function exception to the facts of this case. Courts evaluating whether the discretionary function exception applies to a claim brought under the FTCA must engage in a two-prong inquiry: (1) whether the challenged conduct involved an element of judgment or choice; and (2) whether the judgment exercised was based upon considerations of public policy. United States v. Gaubert, 499 U.S. 315, 323-34 (1991); Berkovitz v. United States, 486 U.S. 531, 536 (1988). Here, Plaintiff has alleged that the United States was grossly negligent in hiring, supervising, and training employees, agents, detectives, and/or officers of FCI Edgefield. After considering argument made by the parties and the allegations in the record, the undersigned does not have sufficient factual evidence to determine whether Plaintiff's claims should be conclusively barred under the discretionary function exception. In considering the first prong, the undersigned does not have facts or evidence in the record to ascertain whether Defendant Snyder's conduct was a reaction to a disciplinary issue on the part of Plaintiff, such that the undersigned could consider whether an element of judgment or choice based on a policy occurred. Plaintiff asserts the position that the discretionary function does not apply, because Defendant Snyder had no discretion in carrying out a BOP policy relating to “use of force.” However, this argument assumes that Defendant Snyder's misconduct is related to a discretionary decision related to use of force. The undersigned simply does not have sufficient information to determine whether Defendant Snyder's conduct resulted from a situation that necessitated a judgment on the use of force.
The Fourth Circuit routinely holds that decisions regarding the hiring, supervision, and retention of employees are protected under the discretionary function to the FTCA. See generally Suter v. United States, 441 F.3d 306, 312 n.6 (4th Cir. 2006); LeRose v. United States, 285 Fed.Appx. 93, 97 (4th Cir. 2008). However, the discretionary function is not a categorical bar to bringing suit under the FTCA for claims sounding in negligent hiring, supervision and retention. Lins v. United States, 847 Fed.Appx. 159, 165 (4th Cir. 2021).
At least one court in the Fourth Circuit found that if there is material dispute of fact as to whether correctional officers acted reasonably in response to an inmate's inappropriate behavior, i.e. utilized a constitutionally excessive amount of force, these actions are not protected under the discretionary function exception. Saucedo-Gonzalez v. United States, No. 7:07-cv-00073, 2007 WL 2319854, at *6-7 (W.D. Va. Aug. 13, 2007).
Plaintiff's later assertion that the exception should not apply when an inmate, who did not pose a threat, was nonetheless inexplicably harmed by a correctional officer is more to the point. In fact, as alleged in the Complaint, the facts as alleged suggest Defendant Snyder was not carrying out a regulatory duty or function, but instead engaged in criminal conduct. While courts routinely find the discretionary function applies, in cases involving egregious misconduct by federal agents, the bar has not been applied. Burgess v. Watson, No. 1:12-cv-810, 2014 WL 4540256, at *4 (M.D. N.C. Sept. 11, 2014); see Limone v. United States, 271 F.Supp.2d 345, 354 (D. Mass. 2003) (explaining that conduct cannot be “discretionary” if it violates the constitution, federal laws, or established agency policies). Defendant Snyder's conduct, as alleged in the Complaint, is more closely aligned with egregious misconduct than a judgment call related to a prison policy. For these reasons, the undersigned is unable to make a conclusive assessment regarding whether the discretionary function applies to the facts in the Complaint. Accordingly, the undersigned recommends finding that there is insufficient evidence or facts upon which to determine whether the discretionary function applies under the applicable standard for considering a motion to dismiss the Complaint.
C. Failure to State a Claim under the FTCA
The FTCA allows federal prisoners to bring suit due to the negligence of governmental employees. 28 U.S.C. § 1346(b)(1). State law applies to the analysis of a tort claim. 28 U.S.C. §1346(b)(1); see also Pendergrass v. United States, No. 0:11-cv-2706-PMD-PJG, 2014 WL 518842, at *2 (D.S.C. Feb. 12, 2013). In South Carolina, a plaintiff must establish the following to support a negligence claim: (1) a defendant owed a duty to plaintiff; (2) defendant breached that duty by performing a negligent act or omission; and (3) the plaintiff incurred damages proximately resulting from the breach. Florida Auto Auction of Orlando, Inc. v. United States., 74 F.3d 498, 502 (4th Cir. 1996). The duty of care owed by the BOP to federal prisoners is fixed by statute. Under 18 U.S.C. § 4042, the BOP must provide for the protection of inmates. The United States concedes that prison officials have a duty to provide reasonable care to prisoners. Def.'s Br. at 18.
Instead, the United States argues that Plaintiff has failed to state a claim of negligence under theories of failure to protect or failure to hire, train and supervise Defendant Snyder and other correctional staff. In response, Plaintiff first clarifies that he is not alleging stand alone causes of action for Eighth Amendment failure to protect or failure to render medical aid claims. Pl.'s Br. at 2, n 1. Further, Plaintiff summarily alleges that whether the duty owed by the Government was breached is not properly determined at this stage in the proceedings. Pl.'s Br. at 2, n 1. Prior to analyzing whether Plaintiff has sufficiently alleged these claims pursuant to Federal Rule of Civil Procedure 12(b)(6), the undersigned notes that Plaintiff's claim against the United States under the FTCA is for gross negligence. Generally, to state a claim for gross negligence, a plaintiff must plead the same elements as one would for a negligence claim. In re Blackbaud, Inc., Customer Data Breach Litigation, 567 F.Supp.3d 667, 682 (D.S.C. 2021). The distinguishing factor is that negligence is the failure to exercise due care, while gross negligence is the failure to exercise slight care. Id. The United States does not appear to challenge the fact that Plaintiff brought a cause of action for gross negligence.
1. Negligent Hiring, Supervision and Training
The United States argues that Plaintiff failed to state a viable negligence claim under a theory of failure to hire, train and supervise Defendant Snyder and other correctional staff. Rule 8(a) of the Federal Rules of Civil Procedure governs the pleading requirements in federal court. All that is required of a complainant is a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The United States argues that Plaintiff has failed to allege how the United States breached the duty of care and further argues that Plaintiff uses “non-specific” allegations that the United States “failed to train training officers on use of force/excessive force to include reporting and investigating all use of force incidents, and failed to supervise the officers within the SHU, to include Defendant Snyder.” Def.'s Br. at 21.
A Rule 12(b)(6) motion should only be granted in limited circumstances when it appears with certainty that a plaintiff is not entitled to relief under any statement of facts which could be proved in support of his claim. Rogers v. Jefferson Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir. 1989). Here, Plaintiff alleges the following: (1) that the United States “failed to establish a regime of hiring, supervision, and training of the employees”; (2) that as a result of the “grossly negligent hiring, supervision and training, the Plaintiff suffered harm on May 30, 2019, physically and mentally”; and (3) that Plaintiff incurred damages directly and proximately caused by the “grossly negligent, careless, and/or reckless acts of Defendant.” ECF No. 1 at 5. Plaintiff then lists several particular reasons for this claim, including but not limited to: (1) the failure to provide adequate and appropriate security officers; (2) the failure to properly hire, supervise, and train, employees to ensure the safety of inmates; (3) the failure to have appropriate policies and procedures in place; (4) the failure to provide any level of security in Plaintiff's dorm for a significant period of time after the incident occurred; (5) the failure to hire and retain adequately trained staff to prevent harm to the inmate population; (6) the failure to monitor and investigate Defendant Snyder's disciplinary history and/or unprofessional conduct; and (7) the failure to monitor and supervise officers. ECF No. 1 at 56. Plaintiff alleges the Government did not have the requisite level of security, for example, or that it did not supervise officers while in certain housing units. At this stage in the litigation, prior to benefit of discovery, Plaintiff need not provide every detail so long as the pleading provides more than conclusory statements. Thus, while the United States alleges that Plaintiff does not assert how the United States breached its duty or otherwise give specific factual allegations, the undersigned disagrees. The Complaint includes an adequate factual basis to support a claim for negligent hiring, training and supervision. Therefore, the undersigned recommends denying the United States' request to dismiss Plaintiff's negligence claim.
The United States relatedly argues that Plaintiff failed to allege that the United States “knew or should have known” of Defendant Snyder's disciplinary history and/or any prior assaults, violation of constitutional rights, or any other specific issues with Defendant Snyder's past disciplinary history or unprofessional conduct. In so arguing, the United States cites to two cases. In Carpenter v. Bragg, No. 8:15-cv-0574-GRA-JDA, 2015 WL 13734632, at *14 (D.S.C. Nov. 30, 2015), report and recommendation adopted, 2016 WL 845315 (D.S.C. Mar. 1, 2016), the court considered a claim made by an inmate alleging the BOP was negligent in its supervision and training. The court surmised that the plaintiff had not alleged the defendant intentionally harmed plaintiff, nor did he allege that the defendant knew or should have known that an employee posed an undue risk of harm to the public. Id. at *15. First, in its analysis the court had converted that motion to dismiss to a summary judgment motion. Second, the court reasoned that the plaintiff had failed to state that “any supervisor should have been aware that an employee would allow him to be assaulted by his cellmate and failed to respond.” Id. In Guyton v. United States, 8:18-cv-0609-MGL-JDA, 2019 WL 6170565, at *6-7 (D.S.C. Feb. 7, 2019, report and recommendation adopted, 2019 WL 4051689 (D.S.C. Aug. 28, 2019), the court similarly recognized that the plaintiff failed to contend that the defendant had “any reason to believe” that the prison official would act inappropriately. By contrast, Plaintiff allegations include the failure to monitor Snyder's disciplinary history and/or unprofessional conduct, and the failure to discipline him based on prior history. Moreover, Plaintiff alleged that, “upon information and belief, FCI administration and/or supervisors knew and/or should have known that Ofc. Snyder had a propensity to harm inmates based on his prior actions and/or disciplinary history but failed to investigate and take appropriate action against him.” ECF No. 1. at 5. The United States claims this is insufficient because Plaintiff failed to provide any factual support or evidence of prior incidents to place the BOP on notice. However, the cases cited by the United States and referenced above do not support the United States' contention that Plaintiff had to plead these specific instances of misconduct put the BOP on notice that he is alleging a claim that the United States “knew or should have known” that Defendant Snyder should be monitored or that he had a propensity for violence. Thus, the undersigned recommends denying the United States' Motion to Dismiss pursuant to 12(b)(6) as to this FTCA claim.
2. Failure to Protect
The United States next argues that Plaintiff has failed to state a viable claim under a theory of failure to protect. The undersigned notes that it appears Plaintiff did not intend to state a distinct “failure to protect” claim against the United States. Instead, Plaintiff simply uses that language in supporting its FTCA claim against Defendant United States. Plaintiff states in his Complaint that he has one cause of action and states in his brief he is not bringing an Eighth Amendment claim. Nevertheless, the United States advances a similar argument to the claim that Plaintiff's negligent supervision, hiring, and training claim should be dismissed; namely, that Plaintiff failed to set forth factual allegations suggesting that the BOP knew or reasonably should have known that Defendant Snyder posed a pre-existing threat to Plaintiff or had the propensity to commit an assault. For the reasons previously analyzed above, the undersigned would recommend denying the United States' motion to dismiss on this ground.
In any event, to succeed on a failure to protect claim, a prisoner must show: (1) he is incarcerated under conditions posing a substantial risk of serious harm; and (2) prison officials exhibited deliberate indifference to his health or safety. Robinson v. S.C. Dept. of Corr., C. A. No. 5:10-2593-HMH-KDW, 2012 WL 851042, at *5 (D.S.C. March 13, 2012).
3. Medical Malpractice
Finally, the United States alleges that Plaintiff failed to state a claim for medical malpractice. In his Complaint, Plaintiff alleges that the United States was grossly negligent in failing to provide Plaintiff timely access to first aid and outside medical care. ECF No. 1 at 6. Because medical malpractice is a type of negligence claim the distinction between the two can be subtle. Dawkins v. Union Hosp. Dist., 758 S.E.2d 501, 503-504, 408 S.C. 171 (S.C. 2014). Expert testimony is required to establish a duty owed to a patient and the beach of that duty, unless the subject matter of the claim falls within a layman's common knowledge or experience. Id. It is unclear whether Plaintiff sought to establish an independent cause of action based upon the failure to timely provide medical care on the part of the correctional staff because this allegation was used to support the FTCA claim against the United States. Nonetheless, while Plaintiff generally alleges that correctional staff failed to intervene and respond in a timely manner to render aid, Plaintiff does not allege any independent injury incurred in the actual rendering of medical care. Additionally, Plaintiff did not provide expert testimony to support a medical malpractice claim. Nor does Plaintiff allege any Defendant was deliberately indifferent to his serious medical needs. Accordingly, to the extent Plaintiff was attempting to assert an independent claim based upon medical malpractice, the undersigned recommends finding this claim should be dismissed.
IV. Recommendation
Based on the foregoing, it is recommended that Defendant's Motion to Dismiss, ECF No. 16, be DENIED as to all claims except any potential claim for medical malpractice. The Motion to Dismiss is GRANTED as to the United States' Motion to Dismiss to the extent Plaintiff makes any claim against Defendant United States for medical malpractice.
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.”
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
Post Office Box 2317
Florence, South Carolina 29503
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).