Moredock v. United States of America
MEMORANDUM OPINION & ORDER: 1. Defendants motion to dismiss or, in the alternative, for summary judgment [R. 13] is GRANTED; 2. Plaintiffs Amended Complaint [R. 4] is DISMISSED WITH PREJUDICE; 3. The Court will enter an appropriate judgment; and 4. This matter is STRICKEN from the active docket.. Signed by Judge Gregory F. VanTatenhove on 3/7/2018.(JMB)cc: COR, Tim Moredock via US Mail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
UNITED STATES OF AMERICA,
Civil No. 17-cv-0045-GFVT
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Plaintiff Tim Moredock is an inmate formerly confined at the United States PenitentiaryMcCreary in Pine Knot, Kentucky. 1 Proceeding without an attorney, Mr. Moredock filed a civil
action against the United States of America pursuant to the Federal Tort Claims Act, 28 U.S.C. §
2670 et seq. (“FTCA”). [R. 4.] The United States has filed a motion to dismiss or, in the
alternative, motion for summary judgment. [R. 13.] Mr. Moredock has filed two responses [R.
20, 25] and the United States has filed replies to both [R. 23, 26]. Thus, this matter has been
fully briefed and is ripe for review.
In his Amended Complaint, Mr. Moredock alleges that, on October 26, 2015, he was
assaulted with a homemade weapon while he was in his housing unit (“Unit A”) by an inmate
who lived in a different housing unit (“Unit B”). [R. 4 at 2.] He alleges that he was stabbed 68
times. Id. The parties do not dispute that the assault occurred, nor that Mr. Moredock’s injuries
were life threatening. Mr. Moredock was first treated by EMS at USP-McCreary, and then
subsequently airlifted to the University of Kentucky Medical Center (“UKMC”), where he
Mr. Moredock has since been transferred and is currently confined at the Federal Corrections Institution-Terre
Haute in Terre Haute, Indiana
underwent emergency surgery for his injuries. Mr. Moredock spent 21 days at UKMC. [R. 13-1
at 2–3; R. 13-3 at ¶ 5; R. 13-8 at ¶ 4.] The assault was subsequently referred for prosecution.
[R. 13-1 at 4.]
According to the United States, while Mr. Moredock was being escorted to the
ambulance, he stated to staff that he had been stabbed by the “Soldiers of the Aryan Culture”
(“SAC”) because he was an SAC member and he had refused an order to stab his cellmate. He
further identified two SAC members, identified here as Inmate A and Inmate B for privacy and
confidentiality purposes, as his assailants. He stated that Inmate B stabbed him, while Inmate A
assisted. [R. 13-1 at 3; R. 13-10 at ¶ 4.]
This information was confirmed by a subsequent investigation, which revealed that Mr.
Moredock was assaulted by Inmate A and Inmate B, both of whom belonged to SAC. Id. At the
time of the incident, Mr. Moredock and Inmate A were both housed in Unit 4A, while Inmate B
was housed in Unit 4B. Units 4A and 4B are side by side in separate buildings connected by a
Unit Team Area in the middle. However, the unit team remains locked and inmates are not
allowed to cross through the Unit Team Area from one unit to the next. [R. 13-10 at ¶ 3.]
According to Wade Thompson, the Captain at USP-McCreary, “[w]hile Moredock was
housed at USP McCreary with Inmates A and B, there were no incidents and/or complaints
reported between these inmates and/or the SAC. There are no records reflecting that [Moredock]
indicated at any time to USP McCreary staff that being housed with Inmate A in Unit 4A, and/or
at the same institution as Inmate B, and/or any other SAC members, presented a threat to his
safety.” [R. 13-10 at ¶ 5.] Thompson further indicates that, had Mr. Moredock reported a
verifiable threat of violence to prison staff, immediate action would have been taken to separate
the inmates to avoid potential injury, either by moving Mr. Moredock to another Unit, placing
him in the Special Housing Unit (“SHU”), and/or giving him the option to enter Protective
Custody, including a potential transfer to another institution. Id. at ¶ 6. However, prior to the
October 26, 2015 assault, “[t]here were no known specific or immediate threats to [Moredock]
and there were no known or perceived threats to [Moredock].” Id. at ¶ 7.
Mr. Moredock alleges that, after he returned to USP-McCreary from UKMC, a Special
Investigative Services (“SIS”) officer who was investigating the assault identified the inmate
who had stabbed Mr. Moredock, which was when he realized that this inmate was from a
different unit. [R. 4.] According to Mr. Moredock, the fact that one of the inmates was from
another unit shows that the prison staff failed in their duty to “monitor the unit door and make
sure only inmates housed in the unit are allowed in the unit.” He further alleges negligence on
the part of prison staff for their failure to discover the metal knife during the daily pat-down
searches and/or when the inmate passed through the metal detector when he entered the unit
door. [R. 4 at 2–3.] In sum, Mr. Moredock alleges that the Bureau of Prisons (“BOP”) staff
failed in their duties to monitor the unit door and metal detector, which led directly to his
stabbing, and, therefore, that they failed to provide a safe environment. Id. at 4.
After the assault, Mr. Moredock filed an administrative tort claim (later assigned the
designation “TRT-MXR-2016-04050”) construed as a Claim for Damage, Injury, or Death dated
April 28, 2016. 2 In his claim, he stated that he had been assaulted on October 26, 2015 resulting
in serious injuries requiring emergency medical care and attributing the assault to the negligence
of the prison staff in failing to adequately monitor the metal detectors, thus permitting Inmate B
to enter Unit A with the metal weapon. [R. 4-1.] This claim was denied by the Regional
Mr. Moredock actually filed a “Small Claims for Property Damage or Loss” form pursuant to 31 U.S.C. § 3723.
However, this was apparently construed as a claim for damage, injury or death. [R. 4-1; R 13-1 at 4.]
Counsel. [R. 4-1.] Mr. Moredock then filed this Complaint seeking monetary damages in
compensation for his injuries. [R. 4 at 8.]
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) tests the sufficiency of the
plaintiff’s complaint. Gardner v. Quicken Loans, Inc., 567 F. App’x 362, 364 (6th Cir. 2014).
When addressing a motion to dismiss, the Court views the complaint in the light most favorable
to the plaintiff and accepts as true all ‘well-pleaded facts’ in the complaint. D’Ambrosio v.
Marino, 747 F.3d 378, 383 (6th Cir. 2014). Because Mr. Moredock is proceeding without the
benefit of an attorney, the Court reads his complaint to include all fairly and reasonably inferred
claims. Davis v. Prison Health Servs., 679 F.3d 433, 437–38 (6th Cir. 2012).
Here, the United States moved both to dismiss and for summary judgment, attaching and
relying upon declarations extrinsic to the pleadings in support of their motion. [R. 13.] Thus,
the Court will treat the defendant’s motion to dismiss the complaint as a motion for summary
judgment under Rule 56. Fed. R. Civ. P. 12(d); Wysocki v. Int’l Bus. Mach. Corp., 607 F. 3d
1102, 1104 (6th Cir. 2010); see also Ball v. Union Carbide Corp., 385 F.3d 713, 719 (6th Cir.
2004) (where defendant moves both to dismiss and for summary judgment, plaintiff is on notice
that summary judgment is being requested, and the court’s consideration as such is appropriate
where the nonmovant submits documents and affidavits in opposition to summary judgment).
A motion under Rule 56 challenges the viability of another party’s claim by asserting that
at least one essential element of that claim is not supported by legally-sufficient evidence. Fed.
R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986). A party moving for
summary judgment must establish that, even viewing the record in the light most favorable to the
nonmovant, there is no genuine dispute as to any material fact and that the party is entitled to a
judgment as a matter of law. Loyd v. St. Joseph Mercy Oakland, 766 F.3d 580, 588 (6th Cir.
2014). The burden then shifts to the nonmoving party to “come forward with some probative
evidence to support its claim.” Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir.1994).
However, if the responding party’s allegations are so clearly contradicted by the record that no
reasonable jury could adopt them, the court need not accept them when determining whether
summary judgment is warranted. Scott v. Harris, 550 U.S. 372, 380 (2007). The Court must
grant summary judgment if the evidence would not support a jury verdict for the responding
party with respect to at least one essential element of his claim. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251 (1986).
Here, Mr. Moredock seeks to recover from the United States pursuant to the FTCA for
the alleged negligence of the BOP staff in the performance of their duties relating to surveillance
and other security measures, including separating and monitoring inmates, conducting searches,
and monitoring the metal detectors. He also alleges that the BOP staff failed to provide a safe
environment, implicating 18 U.S.C. § 4042(a), which, among other obligations, requires the BOP
to “provide for the safekeeping, care and subsistence” of inmates, § 4042(a)(2), as well as to
“provide for the protection” of inmates. § 4042(a)(3). In its motion, the United States argues
that Mr. Moredock’s negligence claims against it should be dismissed for lack of subject matter
jurisdiction under 28 U.S.C. § 2680(a), as these claims relate to discretionary governmental
functions and, accordingly, are exempted from the FTCA’s limited waiver of the government’s
Thus, the starting point of the Court’s analysis is the FTCA itself. As a sovereign entity,
the United States is immune from claims against it. United States v. Mitchell, 463 U.S. 206, 212
(1983). The FTCA constitutes a limited waiver of that immunity, thus permitting suit against the
United States for, among other things, personal injuries caused by government employees. 28
U.S.C. § 1346(b)(1). The United States, however, has not waived its immunity for injuries
caused by government employees' performance of discretionary acts. 28 U.S.C. § 2680(a);
Montez ex rel. Estate of Hearlson v. United States, 359 F.3d 392, 395 (6th Cir.2004).
Specifically, 28 U.S.C. § 2680(a) provides that the FTCA’s waiver of immunity does not apply
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.A. § 2680(a).
A two-part test determines whether a governmental act falls within the discretionaryfunction exception. “First, a court must ask whether the act involves ‘an element of judgment or
choice.’” Montez, 359 F.3d at 395 (quoting United States v. Gaubert, 499 U.S. 315, 322 (1991)).
If the answer to this first question is “yes,” the Court must then ask “whether that judgment is of
the kind that the discretionary function was designed to shield.” Id. (quoting Gaubert, 499 U.S.
at 322–23). Thus, in order to survive a motion to dismiss, a complaint “must allege facts which
would support a finding that the challenged actions are not the kind of conduct that can be said to
be grounded in the policy of the regulatory regime.” Id. at 397 (quoting Gaubert, 499 U.S. at
The Sixth Circuit has recognized that 18 U.S.C. § 4042(a) does not specifically prescribe
a course of action for prison officials to follow, but rather “allow[s] BOP officials to exercise
judgment when making decisions regarding [prisoner] safety.” Id. at 396–97. Thus, the first part
of the test is satisfied, as “the BOP has discretion to determine how to accomplish its statutory
duty to provide for the safety of inmates.” See Parker v. United States, 2012 WL 2414887 at *3,
No. 11-cv-176-ART (E.D. Ky. June 26, 2012) (citations omitted). “Moreover, it is clear that
government policy permits this exercise of discretion and was thus designed to shield BOP
officials' judgments concerning prisoner safety.” Id. (citing Montez, 359 F.3d at 397). Thus, the
decisions made by prison staff in this case regarding the operation of the metal detectors, the
utilization of pat-down searches, and the monitoring of the movement of prisoners between units
all relate to the exercise of discretion regarding prisoner safety and, accordingly, fall within the
However, as recognized in Parker, “no good exception exists without having an
exception to it: The discretionary-function exception may not apply where federal officials are
aware of a specific and immediate threat to an inmate's safety.” Id. This is so because, “[i]n
such cases, “there is a high likelihood that actions are not based in policy.” Id. (quoting Ceballos
v. United States, No. 7:11–21–ART, 2011 WL 5855290, at *3 (E.D.Ky. Nov. 22, 2011)).
Here, there are no allegations in Mr. Moredock’s Complaint that, prior to the assault, he
faced a specific and immediate threat, much less that the prison officials were aware of this
threat. Moreover, the United States submits evidence showing that, prior to the October 26,
2015 assault on Mr. Moredock, there is no record of any specific or immediate threats to him,
nor were there any known or perceived threats to him. [R. 13-1 at 4; R. 13-10 at ¶ 7.] Although
he admitted to staff after the attack that he had been stabbed by the SAC because he was a
member of SAC and had refused an order to stab his cellmate, according to the United States,
there is no record that he advised staff of any potential threat and/or sought protective custody.
[R. 13-1 at 24–25.]
In his response to the Motion for Summary Judgment, Mr. Moredock does not dispute
that he had never advised the staff at USP-McCreary of any potential threat to his safety.
However, he does refer to an incident in 2014 in another prison where Mr. Moredock and
another SAC member “jumped on 7 other individuals” and states that one of those individuals
was at USP-McCreary. [R. 20 at 2.] Because of this prior incident, Mr. Moredock alleges that
officials at USP-McCreary should have never placed him in the yard with this individual. [R. 20
at 2; R. 25 at 1.] However, he failed to raise these allegations previously, either in his Amended
Complaint or in his underlying Administrative Tort Claim. [R. 4.] It is generally inappropriate
for a party to raise a claim for the first time in response to a motion for summary judgment,
particularly where, as here, the facts giving rise to the purported claim (here, that prison officials
were negligent in placing him in the yard with a separatee) were known to Mr. Moredock when
he filed his complaint. Tucker v. Union of Needletrades, Indus. & Textile Employees, 407 F.3d
784, 789 (6th Cir. 2005). Moreover, as Mr. Moredock did not raise these allegations in his
underlying Administrative Tort Claim, he has failed to exhaust his administrative remedies with
respect to this claim, which is required prior to filing a lawsuit. Woodford v. Ngo, 548 U.S. 81,
However, even putting these deficiencies aside, Mr. Moredock does not allege that the
officials at USP-McCreary had knowledge of this 2014 incident, nor that this unnamed
individual had any involvement with the assault on him. Indeed, Mr. Moredock offers only
conjecture and speculation that the 2014 assault by him and the 2015 on him are connected. [R.
20 at 2; R. 25 at 1 (“1-6-2014 I assaulted an inmate (multiple) and Oct. 26th 2015 I was
unknowing place on the same yard then I’m assaulted almost killed all the while I should’ve
never been there.”).] Moreover, Mr. Moredock does not dispute the evidence offered by the
United States that he had not reported to prison staff that he was in any sort of danger from the
SAC while housed at USP-McCreary, or that there were any known threats made against him. In
addition, the United States has further offered evidence that none of the inmates involved in the
assault on Mr. Moredock were separatees and/or were suspected of requiring separation prior to
the incident. [R. 13-10 at ¶¶ 5–7.]
For all of these reasons, the Court finds that Mr. Moredock has failed to raise a genuine
dispute of fact regarding whether federal officials were aware of a specific and immediate threat
to his safety prior to the 2015 assault on him. Because federal officials were not aware of any
such threat to him, the discretionary-function exception applies to the decisions made by prison
officials with respect to prisoner safety and security in this case. Accordingly, Mr. Moredock’s
negligence claims must be dismissed for lack of subject matter jurisdiction under 28 U.S.C. §
For the foregoing reasons, the Court finds that it does not have subject matter jurisdiction
over Mr. Moredock’s negligence claims made pursuant to the FTCA. Accordingly, and the
Court being sufficiently advised, it is hereby ORDERED as follows:
Defendant’s motion to dismiss or, in the alternative, for summary judgment [R. 13]
Plaintiff’s Amended Complaint [R. 4] is DISMISSED WITH PREJUDICE;
The Court will enter an appropriate judgment; and
This matter is STRICKEN from the active docket.
This 7th day of March, 2018.
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