Free Report and Recommendations - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-01205-ZLW-OES JOHN D. ALEXANDER, Plaintiff, vs. UNITED STATES OF AMERICA, Defendant.

ORDER GRANTING LEAVE TO FILE REPLY AND RECOMMENDATION FOR DISMISSAL Entered by O. Edward Schlatter, United States Magistrate Judge. Under the Order of Reference to United States Magistrate Judge issued in this matter pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Fed.R.Civ.P. 72(a) and (b), this case has been referred to me for purposes of making a recommendation on the dispositive matters and for ruling upon the nondispositive matters of this lawsuit. The parties' rights to seek review or reconsideration of the Recommendation portion of this document, by filing objections within ten days, are attached hereto, and are entitled "Advisement Under Fed. R. Civ. P. 72." BACKGROUND Plaintiff, a pro se federal prisoner, has filed an Amended Complaint pursuant to the Federal Tort Claims Act (" FTCA" At the time of filing, plaintiff was incarcerated at the ). United States Penitentiary (" USP" in Florence, Colorado. In his original Complaint, the )

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plaintiff brought this lawsuit against three unknown correction officers with the Federal Bureau of Prisons (" BOP" In the Amended Complaint, filed at the direction of the court, ). plaintiff designated the United States of America as the sole defendant in this action. Plaintiff asserts one claim in this action, alleging that prison officials lost his personal property when he was transferred to the special housing unit (" SHU" following ) and incident where other prisoners attacked him on or about October 31, 2002. Plaintiff contends that his property was lost as a result of the negligence of prison officials in failing to immediately secure his property upon his transfer. Plaintiff requests reimbursement of $155.42 and other relief as a result of the alleged loss of his property. Defendant has filed a Motion To Dismiss, arguing that this court lacks subject matter jurisdiction over the plaintiff' claim under Fed.R.Civ.P. 12(b)(1) and 12(h)(3). The s defendant contends that the actions of the employees of USP Florence qualify for the discretionary function exception to the FTCA, thereby depriving this court of jurisdiction over the plaintiff' claim. Plaintiff counters that under the facts of this incident, the s exception is not applicable. In seeking to file a reply to the plaintiff' response, the defendant notified the court s of plaintiff' failure to serve a copy of his response upon opposing counsel. Defendant s waives service of the document, having secured a copy of the same from the court, and requests permission to file a late reply. DISCUSSION I. Defendant' Motion For Leave To File Reply In Support Of Its Motion To s Dismiss.

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Plaintiff' Response To Defendant' Motion To Dismiss, filed on November 5, 2004, s s contains no Certificate of Service, and there has been no affidavit or other proffering document filed thereafter to demonstrate service of the plaintiff' response to the Motion s To Dismiss upon the defendant. Accordingly, defendant has demonstrated cause for the late filing of a reply in this regard, and the lack of prejudice to the plaintiff. Therefore, the defendant' request to file a belated reply to the plaintiff' response will be granted. s s II. Defendant' Motion To Dismiss. s A. Standard of Review.

Rule 12(h)(3) provides that the district court shall dismiss a pending action " whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter." FED.R.CIV.P. 12(h)(3). As a general rule, a district court should first resolve doubts regarding its subject matter jurisdiction before proceeding to the merits of the litigation. See Ruhrgas AG v. Marathon Oil Company, 526 U.S. 574, 577 (1999). A court lacking jurisdiction must dismiss the litigation at any point in the

proceedings in which it becomes apparent that jurisdiction is lacking. See Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir.), cert. denied, 516 U.S. 863 (1995). Under Rule 12(b)(1), a motion to dismiss may be granted if the court does not have subject matter jurisdiction over the matter. The determination of subject matter jurisdiction is a threshold question of law. Madsen v. United States ex. rel. United States Army Corps of Engineers, 841 F.2d 1011, 1012 (10th Cir. 1987). As courts of limited jurisdiction, federal courts may only adjudicate cases that the Constitution and Congress have granted them authority to hear. See U.S. CONST. ART. III, § 2; Morris v. City of Hobart, 39 F.3d 3

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1105, 1110 (10th Cir. 1994). " [T]he party invoking federal jurisdiction bears the burden of proof." Marcus v. Kansas Dept. of Revenue, 170 F.3d 1305, 1309 (10th Cir. 1999). " Motions to dismiss pursuant to Rule 12(b)(1) may take two forms." Amoco Production Co. v. Aspen Group, 8 F.Supp.2d 1249, 1251 (D.Colo. 1998). First, a party may attack the facial sufficiency of the complaint and the court must accept the allegations of the complaint as true. Id. Second, a party may attack the factual assertions regarding subject matter jurisdiction through affidavits and other documents and the court " wide has discretion to allow affidavits, other documents and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1)." Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). " 12(b)(1) motion . . . can include references to evidence A extraneous to the complaint without converting it to a Rule 56 motion." Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir. 1987) The defendant' Motion To Dismiss s challenges the factual assertions underlying plaintiff' Amended Complaint. s B. The FTCA.

In its Motion To Dismiss, the defendant argues that plaintiff' negligence claim s relates to discretionary functions of prison officials, and therefore, this court lacks jurisdiction to review the claim. Under the FTCA, a limited waiver of sovereign immunity is granted: 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.

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28 U.S.C. § 1346(b)(1). Therefore, " substantive cause of action is not created by 28 U.S.C. § 1346(b)," [a] rather it is only a grant of jurisdiction. Jarrett v. United States, 874 F.2d 201, 203 (4th Cir. 1989). This grant of jurisdiction is, however, limited to " actions taken within the scope"of a federal employee' office or employment, 28 U.S.C. § 1346(b)(1), and does not grant s jurisdiction over acts or omissions taken in the exercise of a discretionary function, 28 U.S.C. § 2680(a). The exception " marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." United States v. S.A. Empresa de Viacao Aerea Rio Grandense, 467 U.S. 797, 808 (1984). The Supreme Court has developed a two-part test to assist in the determining the scope of the exception, which is set forth in Berkovitz v. United States, 486 U.S. 531 (1988). The first part of the test concerns whether the challenged conduct involves an element of judgment or choice, or whether it involves a prescribed course of conduct for the government official. Kiehn v. United States, 984 F.2d 1100, 1102 (10th Cir. 1993). If the conduct involves discretionary judgment, the second part of the test involves determining " whether that judgment is the kind that the discretionary function exception was designed to shield." Id. at 1103 (citing Berkovitz, 486 U.S. at 536). The exception shields only those decisions " based on considerations of public policy." Id. In determining whether an officer' actions are protected, the court doesn'consider s t the officer' status or rank, but instead, the nature and quality of the questioned acts. s United States v. Gaubert, 499 U.S. 315, 321-22 (1991). When a statute, regulation, or 5

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policy mandates a specific course of action for the official, there is no bar to recovery. Berkovitz, 486 U.S. at 536. In other words, when a specific course of action is dictated, that governing standard blocks the officer from exercising his or her own judgment, and the official has no discretion to do anything but follow the directive. Therefore, in this case, the discretionary exception does not apply if USP Florence officials failed to follow mandatory procedures set out in a federal statute, federal regulations or in the BOP' own s regulations. Plaintiff has claimed that his property was lost as a result of the negligence of prison officials in failing to immediately secure his property upon his transfer to SHU following an altercation and attack upon him by other inmates. While prison officials are not insurers of an inmate' property, they are required to " s provide suitable quarters and provide for the safekeeping, care, and subsistence of all persons." 18 U.S.C. § 4042(a)(2). The BOP is required by regulation and policy to follow certain procedures with regard to inmate property, housing, discipline, and the transfer of inmate property. See DEFENDANT' S MOTION TO DISMISS, Docket #18, Exh.A, Attch. 1, 2 and 3. However, Benjamin J.

Frieschke, Attorney Advisor at FCC Florence, and Leonel Ortega, Captain at USP Florence, both certify in their affidavits supplied in support of the defendant' motion that s no statute, rule, or regulation exists which governs the timing or method for securing inmate personal property when confronted with inmate violence. See Id. at Exh. A and B. Plaintiff has supplied no evidence or authority to contradict that of the defendant. Plaintiff does argue that he specifically spoke to various staff members about the securing of his property, and they assured him that the property was being secured. Such 6

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an argument does not overcome the premise of the discretionary function exception to the FTCA because it does not provide mandatory procedures set out in a federal statute, federal regulations or in the BOP' own regulations. Broadly construed as an attempt to s raise a claim under the theory of bailment, the argument also fails because (1) such claims normally arise under the law of contracts, not torts, and (2) neither the Colorado legislature, by statute, or the courts have recognized that a theory of bailment applies to an inmate' loss of property claim under Colorado law. Under the FTCA, the government s can only be held liable 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. In this case, the two-part test for the application of the discretionary function exception is satisfied. There exists no statute, regulation or policy specifically dictating the course of action for prison officials to follow in the timing or method of securing a prisoner' s property during or following an incidence of harm or violence. As set forth by the defendant: [I]t is well within the discretion of the prison officials to first make sure that the violence is abated, to take care of any injured parties, to separate the dueling inmates, and then - after all the exigencies are taken care of - to resume their inventory and other collateral work. The flexibility needed is reasonable and is well grounded in good public policy. Safety of inmates and of prison staff is and must be the first priority. Property inventories necessarily must take a secondary role to safety. DEFENDANT' MOTION TO DISMISS, Docket #18, p. 11. S In addition to the concerns of safety are the allocation of the limited resources of the facility. If prison officials were not given wide latitude with regard to allocating their 7

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resources between ensuring prisoner safety and securing their property, the result could be tragic. " 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." Bell v. Wolfish, 441 U.S. 520, 547 (1979). Where regulations allow a federal employee discretion, there is a strong presumption that the discretion authorized is a result of or is inextricably tied to the underlying policy considerations of the regulatory scheme. Gaubert, 499 U.S. at 324-25. In this instance, while there exists a broad statutory duty for the BOP in providing for the safety of inmates and there are policies outlining the administration of inmate personal property on a routine basis, the timing and manner in which the officials fulfill those duties with regard to inmate property in response to situations of unrest or violence remain discretionary. There is no evidence to suggest, and the plaintiff has presented none upon which the court could conclude, that the decision at issue in this case was not motivated by or grounded in regulatory policy or was not required to effectuate the purposes of an overall regulatory scheme. While the USP Florence officials had a duty to protect the plaintiff and secure his property, decisions made as to how best to fulfill that duty are protected by the discretionary function exception, and plaintiff' claim should be dismissed s for lack of subject matter jurisdiction. Accord Horta v. Sullivan, 4 F.3d 2, 21-22 (1st Cir. 1993) (although law enforcement agents have a mandatory duty to enforce the law, decisions as to how best to fulfill that duty are protected by the discretionary function exception). 8

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CONCLUSION It is hereby ORDERED that Defendant' Motion For Leave To File Reply In Support s Of Its Motion To Dismiss [Filed January 27, 2005; Docket #25] is GRANTED. Further, based upon the above analysis, and the Amended Complaint on file herein, I do hereby RECOMMEND that Defendants' Motions To Dismiss [Filed October 15, 2004; Docket #18] be GRANTED and this action be dismissed in its entirety without prejudice.1 Dated at Denver, Colorado, this 8th day of August, 2005. BY THE COURT:

s/O. Edward Schlatter O. Edward Schlatter United States Magistrate Judge

See Hollander v. Sandoz Pharm. Corp. , 289 F.3d 1193, 1216-17 (10 th Cir. 2002) (finding that a dismissal for lack of jurisdiction does not address the merits of a claim, and is therefore without prejudice).
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ADVISEMENT UNDER FED. R. CIV. P. 72 Be advised that all parties shall have ten (10) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. FED. R. CIV. P. 72. The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within ten (10) days after being served with a copy may bar the aggrieved party from appealing the factual and legal findings of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991); Niehaus v. Kansas Bar Ass'n, 793 F.2d 1159, 1164 (10th Cir. 1986).

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