Opinion
No. 99 Civ. 3877 (VM)
November 15, 2000
DECISION AND ORDER
Plaintiff Ellis Marshall ("Marshall") commenced this action for monetary damages under the Federal Tort Claims Act ("FTCA") after sustaining injuries following an attack by a fellow inmate while using a telephone during his incarceration at the Metropolitan Correctional Center in New York City. The United States (the "Government"), has moved to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b)(1) on the ground that security decisions made by prison officials are discretionary; that the Government enjoys sovereign immunity for discretionary functions under the FTCA; and that this Court therefore lacks subject matter jurisdiction. The Court has reviewed the parties's submissions and denies the Government's motion.
On a motion to dismiss, the Court must accept Marshall's factual allegations as true and draw all reasonable inferences in his favor. See Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton College, 128 F.3d 59 (2d Cir. 1997). The Court liberally construes the allegations of the pleadings when considering a motion to dismiss the claim of a pro se litigant. See Flaherty v. Lang, 199 F.3d 607, 612 (2d Cir. 1999).
Here, Marshall has argued that the Government "made accessible to the inmate to secure a three (3) feet long iron pipe in a maximum security prison." Amended Compl., Ex. D, at 2. More specifically, Marshall has argued that
[t]he BOP has a duty to ensure that steel pipe holding bunk beds are secured together in a proper manner to ensure that it cannot be removed and be used as a weapon, as happened in this case. Futhermore the BOP is obligated to conduct frequent inspections on these bunk beds to ensure that these steel pipe [sic] cannot be used as a weapon. . . . The BOP was negligent in its functions to permit an inmate access to an unsecured steel pipe. Had it been secured properly it certainly would not have been used to injure the plaintiff.
Plaintiff's Memorandum of Law in Opposition, dated May 29, 2000, at 2. The Government also has noted that the inmate who attacked Marshall "was observed running with a pipe that is used to hold bunk beds together." Declaration of Clinton D. Stroble, dated May 17, 2000, ¶ 6.
Giving Marshall's amended complaint the liberal reading that this Court is required to afford it (see Haines v. Kerner, 404 U.S. 519, 520 (1972)), the amended pleading may be read to attack much more than a correctional officer's decision to restrain or separate inmates or to respond to an argument between inmates. See Memorandum of Law in support of Defendant's Motion to Dismiss, dated May 18, 2000 (Defendant's Memo"), at 7, 10. Marshall has maintained that his lawsuit is about "when inmates gather weapons to hurt another inmate" (Transcript from April 19, 2000 hearing at 11), and this action may be properly construed to challenge, among other things, the failure of the Bureau of Prisons to conduct inspections on bunk beds and to protect inmates like Marshall from other inmates who may have access to steel pipes because such inspections are improperly conducted or not conducted at all. See Scrima v. Hasty, No. 97-8433, 1998 WL 661478 (S.D.N.Y. Sept. 24, 1998). Based on the present record, the Court cannot determine whether a mandatory regulation has been violated which would remove the discretionary function exception under the FTCA. See id. Accordingly, it is hereby
ORDERED that the motion of the United States for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) is denied without prejudice to renewal; and it is further
ORDERED that the parties shall appear for a conference with the Court on December 1, 2000 at 11:45 a.m.; an it is finally
ORDERED that the Government shall inform the facility where Marshall is incarcerated to arrange for his participation in the December 1, 2000 conference by telephone.
SO ORDERED