Smith v. Belcher
Filing
28
MEMORANDUM AND ORDER granting 20 Motion to Dismiss; terminating 20 Motion for Summary Judgment; denying 23 Motion for Leave to Amend Complaint; granting 25 Motion to Dismiss. Signed by District Judge Monti L. Belot on 1/18/2012. Mailed to pro se party Solomon Elijah Smith by regular mail. (aa)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SOLOMON ELIJAH SMITH,
Plaintiff,
v.
ERIC BELCHER, Commandant,
USDB-Fort Leavenworth,
Defendant.
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CIVIL ACTION
No.
11-3060
MEMORANDUM AND ORDER
Before the court are the following:
1.
Defendant Eric Belcher’s motions to dismiss or in the
alternative, for summary judgment and memoranda in support
(Docs. 20, 21, 25).
2.
Plaintiff Solomon Smith’s motion for leave to file an
amended complaint (Doc. 23), defendant’s response (Doc. 24)
and plaintiff’s reply (Doc. 27).
For the reasons stated below, defendant’s motions are granted
and plaintiff’s motion is denied.
1.
INTRODUCTION
Plaintiff filed this pro se Bivens1 lawsuit alleging that his
Fifth and Eighth Amendment rights were violated by defendant while
plaintiff was incarcerated at the United States Disciplinary Barracks
(USDB) in Fort Leavenworth, Kansas. Plaintiff seeks both monetary and
1
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971).
punitive damages.
Defendant moves to dismiss pursuant to Fed. R. Civ
P. 12(b)(1).
2.
PRO SE STATUS
The court is mindful of plaintiff’s pro se status.
“A pro se litigant's pleadings are to be construed
liberally and held to a less stringent standard than formal
pleadings drafted by lawyers.” Thus, if a pro se
plaintiff's complaint can reasonably be read “to state a
valid claim on which the plaintiff could prevail, [the
court] should do so despite the plaintiff's failure to cite
proper legal authority, his confusion of various legal
theories, his poor syntax and sentence construction, or his
unfamiliarity with pleading requirements.” However, it is
not “the proper function of the district court to assume
the role of advocate for the pro se litigant.” For that
reason, the court should not “construct arguments or
theories for the plaintiff in the absence of any discussion
of those issues,” nor should it “supply additional factual
allegations to round out a plaintiff's complaint or
construct a legal theory on plaintiff's behalf.” Pro se
plaintiffs are subject to procedural rules, such as
deadlines to respond to dispositive motions.
Heffington v. Bush, No. 08-4097-JAR, 2009 WL 151560, *1 (D. Kan. Jan.
22, 2009) (remanded by Heffington v. Bush, No. 09-3052, 2009 WL
1803282 (10th Cir. June 25, 2009) which ordered district court to
dismiss
case
without
prejudice
for
lack
of
subject
matter
jurisdiction).
Plaintiff did not respond to defendant’s motion to dismiss.
Instead, plaintiff filed a motion for leave to amend and a proposed
amended complaint.
(Doc. 23).
On November 29, 2011, the court
ordered plaintiff to file his response to defendant’s motion to
dismiss and his reply to his motion for leave to amend.
(Doc. 26).
Plaintiff filed a reply to his motion for leave to amend but failed
to respond to defendant’s motion to dismiss.
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Under D. Kan. Rule 6.1(d)(2), a response to a motion to dismiss
must be filed within 21 days of the initial motion to dismiss, and
such
21
days
has
long
since
passed.
For
that
reason
alone,
defendant’s motion is properly granted; nonetheless the court will
address the merits of the motion.
3.
RELEVANT FACTS
On August 12, 2010, at approximately 7:00 p.m. four maximum
security inmates housed in the Special Housing Unit of the USDB
overpowered and beat a correctional specialist and locked him inside
a shower stall.
The inmates took the correctional specialist’s keys
released ten other inmates, including plaintiff. The inmates disabled
the security camera and begin to fashion weapons.
They also used
mattresses and various tables and carts to barricade the main access
door and rear exit door.
At approximately 8:55 p.m. defendant ordered the inmates to
return to their cells and offered to speak with them in their cells.
The inmates refused to comply with defendant’s order.
Defendant
repeated the order and again the inmates refused to comply.
Defendant
then
ordered
initiation
of
the
response
plan.
Defendant first used pepper spray, but the pepper spray could not
penetrate the mattresses and other materials covering the main access
door.
The response team next breached the main access door and began
firing non-lethal shotgun rounds over the inmates’ heads in effort to
get them to surrender. Some inmates retreated while others, including
plaintiff, rushed the barricade.
Upon being attacked, the response team began to fire directly at
the attackers, including plaintiff.
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Plaintiff ran directly into the
shotgun blasts.
He tried to duck and was shot in the head.
Plaintiff was taken to the local hospital and received medical
attention and surgery for his injuries.
were paid by the United States.
Plaintiff’s medical bills
Plaintiff was discharged from the
United States Army on August 12, 2011, one year after the incident.
4.
12(b)(1) STANDARDS
Plaintiff has the burden to show that the court has subject
matter jurisdiction over his claims. U.S. ex rel Stone v. Rockwell
Intern. Corp., 282 F.3d 787, 798 (10th Cir. 2002).
Generally, Rule 12(b)(1) motions to dismiss for lack
of subject matter jurisdiction take two forms. First, a
facial attack on the complaint's allegations as to subject
matter jurisdiction questions the sufficiency of the
complaint. Ohio Nat'l Life Ins. Co. v. United States, 922
F.2d 320, 325 (6th Cir. 1990). In reviewing a facial attack
on the complaint, a district court must accept the
allegations in the complaint as true. Id.
Second, a party may go beyond allegations contained in
the complaint and challenge the facts upon which subject
matter jurisdiction depends. Id. When reviewing a factual
attack on subject matter jurisdiction, a district court may
not presume the truthfulness of the complaint's factual
allegations. Id. A court has wide discretion to allow
affidavits, other documents, and a limited evidentiary
hearing to resolve disputed jurisdictional facts under Rule
12(b)(1). Id.; Wheeler v. Hurdman, 825 F.2d 257, 259 n. 5
(10th Cir.), cert. denied, 484 U.S. 986, 108 S. Ct. 503, 98
L. Ed. 2d 501 (1987). In such instances, a court's
reference to evidence outside the pleadings does not
convert the motion to a Rule 56 motion. Wheeler, 825 F.2d
at 259 n. 5.
Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995).
5.
ANALYSIS
Defendant claims that plaintiff’s claims are barred by the
“incident to service” doctrine established by the United States
Supreme Court in Feres v. United States, 340 U.S. 135 (1950).
Under Feres, “the Government is not liable under the Federal Tort
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Claims Act for injuries to servicemen where the injuries arise out of
or are in the course of activity incident to service.” 340 U.S. at
146. The Supreme Court extended the Feres exception to damage actions
under Bivens.
There
Chappell v. Wallace, 462 U.S. 296 (1983).
is
no
doubt
that
plaintiff’s
injuries occurred “incident to service.”
August 12, 2010.
alleged
constitutional
The incident occurred on
Plaintiff was not discharged from active duty from
the United States Army until August 12, 2011.
These facts are almost
identical to those in Walden v. Bartlett, in which the Tenth Circuit
held that a military prisoner’s “incarceration at the USDB is uniquely
part of this military relationship such that it is ‘incident’ to his
military service as established by Feres.” 840 F.2d 771, 774 (10th
Cir. 1988).
Therefore, the court lacks subject matter jurisdiction
over plaintiff’s claims as they are barred by the incident to service
doctrine established by Feres and its progeny.
6.
CONCLUSION
Defendant’s motions to dismiss (Docs. 20, 25) are granted.
Plaintiff’s motion for leave to amend his complaint to add additional
defendants is denied (Doc. 23) as it would be futile under the Feres
doctrine addressed above.
A motion for reconsideration of this order pursuant to this
court's Rule 7.3 is not encouraged.
Defendant may not move for
reconsideration on the basis of arguments which could have been
included in a reply. Any such motion shall not exceed three pages and
shall strictly comply with the standards enunciated by this court in
Comeau v. Rupp.
The response to any motion for reconsideration shall
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not exceed three pages.
No reply shall be filed.
IT IS SO ORDERED.
Dated this
18th
day of January 2012, at Wichita, Kansas.
s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE
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