BAILEY et al v. UNITED STATES OF AMERICA

Filing 79

ORDER granting 72 Motion to Dismiss for Lack of Jurisdiction. Accordingly, the claims of Plaintiffs Olivia Ham, Abby Ham, Ripley Ham, Mygala Wester, and Ashton Wester (West) are dismissed with prejudice. Signed by JUDGE RICHARD SMOAK on 8/21/2013. (jcw)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
CHELSIE BAILEY, et al.,
Plaintiffs,
v.

CASE NO. 5:12-cv-104-RS-CJK

UNITED STATES OF AMERICA,
Defendant.
_________________________________________/
ORDER
Before me is Defendant United States of America’s Motion to Dismiss the
Ham and Wester Bellwether Plaintiff’s Claims for Lack of Subject Matter
Jurisdiction (Doc. 72).
Standard of Review
Rule 12(b)(1) and Rule 12(h)(3) of the Federal Rules of Civil Procedure
require dismissal of claims “[i]f the court determines at any time that it lacks
subject-matter jurisdiction.” See Fed. R. Civ. P. 12(b)(1), 12(h)(3). When
evaluating a Fed.R.Civ.P. 12(b)(1) motion to dismiss for lack of subject matter
jurisdiction on factual grounds, “as opposed to a facial challenge based merely on
the allegations in the complaint,” the court is not “obligated to take the allegations
in the complaint as true.” Odyssey Marine Exploration, Inc. v. Unidentified
Shipwrecked Vessel, 657 F.3d 1159, 1169 (11th Cir. 2011). Rather, the court may

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“consider extrinsic evidence such as deposition testimony[,]” and “may
independently weigh the facts” without the constraint of viewing the facts “in the
light most favorable to the non-movant.” Id.
Notwithstanding a valid Rule 12(b)(1) motion for lack of subject matter
jurisdiction, if the determination of whether the court has subject-matter
jurisdiction is inextricably intertwined with facts relevant to the merits of the case,
a court must construe a motion to dismiss as a Rule 56 motion for summary
judgment. Bennett v. United States, 102 F.3d 486, 488 n.1 (11th Cir. 1996) (citing
Lawrence v. Dunbar, 919 F.2d 1525, 1528-30 (11th Cir. 1990)). The issue raised
in Defendant’s motion to dismiss is whether certain plaintiffs filed administrative
claims in a timely fashion. None of these determinations require facts relevant to
the merits of Plaintiffs’ claims. Accordingly, the summary judgment standard will
not be applied, and I will resolve the jurisdictional issues of fact on the motion to
dismiss.
Background
Each of the Ham and Wester bellwether plaintiffs is the spouse or child of a
current or former correctional officer at the federal prison in Marianna, Florida.
Complaint, ¶ 31. At the federal prison, some of the prisoners worked for a
recycling program run by UNICOR, which is a government corporation within the
Bureau of Prisons. Id. at ¶¶ 23 & 30; C.F.R § 345.11(a). UNICOR’s purpose is

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“to provide work simulation programs and training opportunities for inmates
confined in Federal correctional facilities.” 28 C.F.R § 345.11(a). At the federal
prison in Marianna, UNICOR is engaged in the business of electronic recycling.
Complaint, ¶ 24. As part of their duties, correctional officers were required to pat
down inmates and often came into contact with the inmates’ clothes and
belongings. Id. at ¶ 30.
Plaintiffs allege that UNICOR, the Department of Justice, and the Bureau of
Prisons willfully, recklessly, or negligently operated the recycling facility which
caused Plaintiffs to be exposed to toxic dust on inmates’ clothing and belongings,
with which the correctional officers came into contact as part of their duties, and to
which Plaintiffs were subsequently exposed when the officers “carr[ied] the dust . .
. into their home and to their families.” Id. at ¶¶ 25 & 30. In their single-count
complaint, Plaintiffs allege a negligence claim against the United States based on
the Federal Tort Claims Act and contend that the United States failed to abide by
generally-accepted recycling industry protocols and OSHA regulations. Id. at ¶¶
33-36.
Analysis
Absent a waiver, the United States, as sovereign, may not be sued without its
consent. F.D.I.C. v. Meyer, 510 U.S. 471, 475, 114 S. Ct. 996, 1000 (1994). With
the passage of the Federal Tort Claims Act (“FTCA”), that consent was given

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. . . 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. That consent, however, is limited by the FTCA’s statute of
limitations which provides that “[a] tort claim against the United States shall be
forever barred unless it is presented in writing to the appropriate Federal agency
within two years after such claim accrues . . . .” 28 U.S.C. § 2401(b) (emphasis
added). “[U]nless the claimant first files an administrative claim with the
appropriate agency . . . within two years from the time the claim accrues[,]” a court
will not have subject matter jurisdiction over the suit. Turner ex rel. Turner v.
United States, 514 F.3d 1194, 1200 (11th Cir. 2008).
Generally, the statute of limitations period is triggered and a claim under the
FTCA accrues “at the time of the plaintiff’s injury.” United States v. Kubrick, 444
U.S. 111, 120, 100 S.Ct. 352, 358 (1979). However, “where [a] plaintiff would
reasonably have had difficulty discerning the fact or cause of injury at the time it
was inflicted[,]” the court should apply the “diligence-discovery rule of accrual.”
Kronisch v. United States, 150 F.3d 112, 121 (2d Cir. 1998). Under this rule,
accrual is postponed until the plaintiff has or with reasonable diligence should have
discovered the facts of both his injury and its connection with some act of the
defendant. Price v. United States, 775 F.2d 1491, 1494 (11th Cir. 1985).
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Ruling on an FTCA claim involving contamination, the D.C. Circuit
specifically held that the claim “accrue[s] when the plaintiff discovers or should
have discovered contamination.” Loughlin v. United States, 230 F. Supp. 2d 26, 39
(D.D.C. 2002). The court further explained that “‘the statute of limitations begins
to run on the first date that the injured party possesses sufficient critical facts to put
him on notice that a wrong has been committed and that he need investigate to
determine whether he is entitled to redress.’” Id. at 40 (quoting Zeleznik v. United
States, 770 F.2d 20, 23 (3d Cir.1985)). The Eleventh Circuit has similarly held
that although a “claim does not accrue when a person has a mere hunch, hint,
suspicion, or rumor of a claim,” such suspicion gives rise to a “duty to inquire into
the possible existence of a claim in the exercise of due diligence.” McCullough v.
United States, 607 F.3d 1355, 1361 (11th Cir. 2010) (quoting Kronisch v. United
States, 150 F.3d 112, 121 (2d Cir.1998)).
Where the injured plaintiff is a minor, the Eleventh Circuit will not toll the
running of the FTCA statute of limitations. See e.g., Burgess v. United States, 744
F.2d 771, 774 (11th Cir. 1984); Charmness v. United States, 835 F.2d 1350 (11th
Cir. 1988). Rather, the statute of limitations will begin to run when the “parent
knows of the minor’s injury and the cause thereof, for the parent’s knowledge is
imputed to the child.” McKewin v. United States, 7 F.3d 224, at *2 (4th Cir. 1993).

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The Defendant argues that Plaintiffs Olivia Ham, Abby Ham, Ripley Ham,
Mygala Wester, and Ashton Wester should be dismissed because although they did
file FTCA administrative claims on May 3, 2011, those claims were not timely
filed. (Doc. 72-1). Plaintiff Olivia Ham is the wife of Brian Ham, who was
employed at the prison from February 9, 2003 to January 12, 2006. Id. at 8.
Plaintiffs Abby and Ripley Ham are their daughters. Id. Similarly, Plaintiff
Mygala Wester is the wife of Marty Wester, who has been employed by the prison
from 1995 to present. Id. at 11. Ashton Wester is their daughter. Id.1 In
deposition, both Plaintiff Olivia Ham and Plaintiff Mygala Wester testified that
they actually knew of both their injuries and the government’s possible role in
causing it more than two years prior to filing their administrative claims. Their
knowledge of the injuries and cause thereof will be imputed to the minor children.
During deposition, Plaintiff Olivia Ham testified that from 2004 to the
present she has suffered from multiple injuries and symptoms attributable to
exposure to toxic materials from FCI Marianna. (Doc 72, Ex. O at 27:16 – 28:15,
30:24 – 31:20, 33:8-16, 35:14 – 37:8, 39:25 -40:8). Additionally, she testified that
Plaintiff Abby Ham has “no known injuries,” and “doesn’t have anything wrong
with her at this time.” Id. at 16:13-24, 99:23-25. However, according to Plaintiff

Plaintiff’s complaint (Doc. 1) lists Ashton West as a plaintiff in the heading and
Ashton Wester as a plaintiff in paragraph 19 of the complaint. Ashton Wester will
be construed as being Ashton West (Doc. 72, Ex. T).
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Olivia Ham, since her birth in 2004, Plaintiff Ripley Ham has suffered from
multiple injuries that are attributable to exposure to toxic materials from FCI
Marianna. Id. at 40:24 43:17, 47:11 – 49:8, 52:22 – 53:20, 54:6-16. Plaintiff
Olivia Ham further testified that believing the toxic materials associated with FCI
Marianna were the cause of hers and Plaintiff Ripley Ham’s injuries, by January
2006 her husband and she began to take preventative measures to reduce further
exposure of the family to the toxic materials. Id. at 56:11 – 57:18, 62:21 – 64:5.
Despite their knowledge of their injury and its connection with some act of the
defendant by January 2006, Plaintiffs Olivia Ham, Abby Ham, and Ripley Ham did
not file an administrative claim until May 3, 2011. (Doc 72, Ex. Q). Accordingly,
Plaintiffs Olivia Ham, Abby Ham, Ripley Ham are dismissed for failure to timely
file a FTCA administrative claim pursuant to 28 U.S.C. § 2401(b).
Similarly, Plaintiff Mygala Wester testified during deposition that from 1995
to 1996 she suffered from symptoms and injuries attributable to exposure to toxic
materials from FCI Marianna. (Doc. 72, Ex. S at 10.2 -10.6; Ex. R at 65:11-19).
Plaintiff Ashton Wester also testified that from 1999 to the present she has suffered
from various injuries and conditions attributable to exposure to toxic materials
from FCI Marianna. (Doc. 72, Ex. T at 10:9-16, 13:8 – 15:22). Although Plaintiff
Mygala Wester connected hers and Plaintiff Ashton Wester’s symptoms and
injuries with exposure to toxic materials from FCI Marianna in 2003, Ex. R at 36:7

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– 38:17, 39:23 – 40:8, 40:12 – 42:7; Ex. T at 67:8 – 68:15, they did not file an
administrative claim until May 3, 2011. Ex. V. Accordingly, Plaintiffs Mygala
Wester and Ashton Wester are dismissed for failure to timely file a FTCA
administrative claim pursuant to 28 U.S.C. § 2401(b).
Conclusion
Defendant United States of America’s Motion to Dismiss the Ham and
Wester Bellwether Plaintiff’s Claims for Lack of Subject Matter Jurisdiction (Doc.
72) is GRANTED. Accordingly, the claims of Plaintiffs Olivia Ham, Abby Ham,
Ripley Ham, Mygala Wester, and Ashton Wester (West) are dismissed with
prejudice.

ORDERED on August 21, 2013.
/s/ Richard Smoak
RICHARD SMOAK
UNITED STATES DISTRICT JUDGE

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