HOOKER v. KNIGHTLY et al

Filing 131

REPORT AND RECOMMENDATION re 126 MOTION to Dismiss for Lack of Jurisdiction filed by UNITED STATES Objections to R&R due by 6/21/2021 By MAGISTRATE JUDGE ANDREA K. JOHNSTONE. (lrt)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
Samuel Hooker
v.

Case No. 17-cv-345-JNL

United States of America
REPORT AND RECOMMENDATION
Plaintiff Samuel Hooker brings a claim under the Federal
Tort Claims Act (“FTCA”), alleging that the United States
Marshals Service (“USMS”) was negligent in transporting him from
the Cumberland County Jail in Maine to the United States
District Court for the District of Maine and, in a second trip,
from the jail to the airport.1
doc. no. 90.

See Second Amended Complaint,

Hooker alleges that the USMS deputies who

transported him failed to follow USMS policy directive, PD
9.21(E)(5)(b).

The United States moves to dismiss the claim for

lack of subject matter jurisdiction (doc. no. 126), under
Federal Rule of Civil Procedure 12(b)(1), based on the
discretionary function exception to the waiver of sovereign
immunity under the FTCA.

Hooker objects (doc. no. 127), and the

United States has filed a reply (doc. no. 130).

Although Hooker filed his initial complaint pro se,
counsel is now representing him. See Doc. no. 55; Doc. no. 63;
Doc. no. 109; Doc. nos. 112 & 113.
1

I.

Legal Framework
“As a sovereign, the United States is immune from suit

without its consent.”
(1st Cir. 2017).

Evans v. United States, 876 F.3d 375, 380

For that reason, courts lack subject matter

jurisdiction over claims against the United States unless
sovereign immunity is waived.

Davallou v. United States, ---

F.3d ---, 2021 WL 2102930, at *1 (1st Cir. May 25, 2021).

“The

FTCA ‘waives the [federal] government’s sovereign immunity for
certain torts committed by its employees in the scope of their
employment.’”

Id. (quoting Mahon v. United States, 742 F.3d 11,

12 (1st Cir. 2014)).
The waiver of sovereign immunity under the FTCA “does not
extend to claims based upon a government employee’s exercise or
failure to exercise a ‘discretionary function.’”
§ 2680(a).

Id.; 28 U.S.C.

Therefore, if a claim falls into the discretionary

function exception to the waiver of sovereign immunity under the
FTCA, it must be dismissed for a lack of subject matter
jurisdiction.

Davallou, 2021 WL 2102930, at *1.

Whether the discretionary function exception applies is
determined through several analytic steps in which the court
first determines what conduct allegedly caused harm and then
whether that conduct is both “discretionary” and “susceptible to
policy analysis.”

Id. at *2.

Conduct is not discretionary when
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it is mandated by a federal statute, regulation, or policy.
§ 2680(a); United States v. Gaubert, 499 U.S. 315, 322 (1991).

II.

Standard of Review
The party who has invoked the jurisdiction of the court

bears the burden of showing that subject matter jurisdiction
exists.

Gordo-González v. United States, 873 F.3d 32, 35 (1st

Cir. 2017).

The First Circuit has recognized different

standards for assessing a motion to dismiss under Rule 12(b)(1),
depending on whether the jurisdictional facts alleged in the
complaint are disputed.

Torres-Negron v. J&N Records, LLC, 504

F.3d 151, 162 (1st Cir. 2007); accord Spencer v. Doran, 2021 WL
294556, at *2 (D.N.H. Jan. 28, 2021).

When the motion to

dismiss is based on jurisdictional facts as alleged in the
complaint, the court applies the same standard that is used
under Federal Rule of Civil Procedure 12(b)(6), taking properlyalleged facts as true and resolving reasonable inferences in the
plaintiff’s favor.

Davallou v. United States, --- F.3d ---,

2021 WL 2102930, at *1 (1st Cir. May 25, 2021); Hajdusek v.
United States, 895 F.3d 146, 148 (1st Cir. 2018); McCloskey v.
Mueller, 446 F.3d 262, 266 (1st Cir. 2006).

In that

circumstance, the court must decide whether the alleged facts
are sufficient to support subject matter jurisdiction.
3

Hajdusek, 895 F.3d at 148.
When the jurisdictional facts are disputed, however,
different standards apply.

Torres-Negron, 504 F.3d at 163.

If

the factual dispute is intertwined with the merits of the case,
the court employs the standard used in addressing motions for
summary judgment.

Id.

On the other hand, if the jurisdictional

facts are separate from the merits of the case, the court weighs
the evidence to determine whether jurisdiction exists.

Id.

If

necessary, the court may order discovery, consider extrinsic
evidence, or hold evidentiary hearings.

Pajak v. Rohm & Haas

Co., 387 F. Supp. 3d 138, 146 (D. Mass. 2019).
In this case, the jurisdictional issue is the discretionary
function exception to the waiver of sovereign immunity in the
FTCA.

Hooker alleges that a USMS policy directive, PD

9.21(E)(5)(b), applies to the transport incidents at issue in
this case, which he contends bars the discretionary function
exception.2

The defendant has submitted the declarations of USMS

Senior Inspector Jared McCloe and Chief Inspector of Detention
Operations at the USMS Heather Lowry.

The plaintiff contends

that the defendant has raised a factual issue based on the
declarations, stating that the declarations “challenge[] the

There is no dispute for purposes of this case that PD
9.21(E)(5)(b) is a regulation within the meaning of § 2680(a).
4
2

factual allegation that PD 9.21(E)(5)(b) applied to the conduct
in this case.”

Doc. 127, at *10.

Hooker relies on Campbell v. United States, 167 F. Supp. 2d
440 (D. Mass. 2001), to support his argument that the United
States has raised a factual issue which requires discovery.
Campbell, however, pertains to discovery when an issue arises as
to whether regulations exist that would preclude the
discretionary function exception.

Id. at 448.

In this case,

however, Hooker has identified the policy directive, PD
9.21(E)(5)(b), that he contends applies to the circumstances
alleged.

Therefore, as there is no need for discovery to find a

potentially applicable regulation or policy directive, Campbell
is inapplicable.
Here, the parties dispute the meaning of PD 9.21(E)(5)(b)
in the context of undisputed circumstances.

In contrast, a

factual issue would arise if the parties disputed “the conduct
in this case.”

The declarations submitted by the United States

provide the declarants’ opinions about the meaning of PD
9.21(E)(5)(b), but the declarants do not challenge any of the
factual allegations provided in the complaint.3

For that reason,

The two challenged declarations were filed by the United
States in support of a prior motion to dismiss (doc. no. 48;
declarations, doc. nos. 46 [McCloe] & 75 [Lowry]). The United
States references the opinions of McCloe and Lowry in its
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3

the Rule 12(b)(6) standard applies.4

III.

Background
The United States moved to dismiss Hooker’s prior complaint

(document no. 49) for lack of subject matter jurisdiction on the
same ground that is raised in the current motion, that sovereign
immunity barred the claim under the discretionary function
exception to the waiver in the FTCA.

Doc. 48.

In the then-

operative complaint, Hooker alleged that the challenged conduct
by the USMS deputies was “transporting a paraplegic on the floor
of a van instead of providing a special vehicle or ambulance.”
Doc. no. 84 at *8.

The parties agreed that the only potentially

relevant policy, for purposes of the discretionary function
issue, was PD 9.21(E)(5)(b), but they disagreed as to whether it
applied to the transportation incidents involving Hooker.
The court concluded that the language of PD 9.21(E)(5)(b)
was somewhat ambiguous but decided that even if that PD applied,
it did not require the USMS to use special vehicles for
transporting prisoners with impairments.

For that reason, the

current motion to dismiss for purposes of “Skidmore deference”
as to the meaning of PD 9.21(E)(5)(b). The United States does
not cite the declarations to challenge any of the factual
allegations in the complaint.
4 Hooker’s argument that discovery is required does not
apply in the context of the Rule 12(b)(6) standard.
6

USMS deputies who transported Hooker had the discretion to
select the vehicle.

The court also concluded that the exercise

of that discretion was subject to a policy judgment and,
therefore, was a policy-based discretionary judgment.

The court

dismissed the complaint without prejudice to Hooker to file a
complaint that either alleged that his injuries resulted from
the USMS deputies’ failure to comply with PD 9.21(E)(5)(b)(1) or
that his injuries resulted from the USMS deputies’ violation of
another policy, directive, rule, or regulation that required
compliance with state laws.
Hooker filed the current complaint in response.5
90.

Doc. no.

He alleges that during the events at issue he was being

held at the Cumberland County Jail in Portland, Maine.
paraplegic and also has limited use of one arm.
confined to a wheelchair for many years.

He is a

He has been

Hooker alleges that

the USMS in Maine did not safely transport him on two occasions:
once from the jail to the federal court in Portland and another
time from the jail to the airport in Portland.
Hooker alleges that on August 8, 2012, two USMS deputies
arrived at the jail to transport him to the court in a van used

Both the prior complaint, document no. 49, and the current
complaint (document no. 90) were docketed as “Second Amended
Complaint.”
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5

for transport of prisoners.

Before arriving, the deputies did

not know about his medical condition that caused him to be
limited to a wheelchair and did not have a suitably equipped
vehicle for his transportation.

Once at the jail, the deputies

decided to remove him from the wheelchair and to put him on the
floor of the van.
Hooker states in the complaint that facts about the
transport were provided in “affidavits filed by marshals of the
USMS-M in this matter.”6

Doc. 90, ¶ 10.

Hooker alleges that the

deputies had never transported a wheelchair-bound prisoner in a
suitably equipped van.

He alleges that at the time of the trip,

he was six feet three inches tall and weighed 230 pounds.
Hooker alleges that the marshals lifted him out of his
wheelchair on put him on the floor of the rear compartment of
the van.

They then dragged him across the floor to the back

area and also placed his wheelchair in that area.

The deputies

were unable to lift Hooker onto a seat, so they propped him

The affidavits were not filed with the complaint, and no
citation to the record where the affidavits might be found is
provided. It appears that Hooker is relying on the affidavit of
Dean Knightly, who is the Supervising Deputy United States
Marshal for the District of Maine. His original affidavit was
filed on August 16, 2018. Doc. no. 47. Knightly then filed an
affidavit on February 10, 2020, (document no. 99) and a
corrected affidavit the same day (document no. 100), which were
filed after the second amended complaint.
8
6

against a wall of the van where he could hold onto a seat.
then transported him to the court.

They

He alleges that during the

ride he was bounced and bumped on the floor of the van, which
caused injuries to his buttocks, back, neck, and shoulder.
A second trip occurred on August 12, 2017, between the jail
and the court.

This time the USMS in Maine was aware of

Hooker’s condition and arranged to transport him a car.

He was

lifted into the back seat where he was able to lie down, and he
was not injured during that transport.
A third trip occurred on January 28, 2013, from the jail to
Portland International Airport, because Hooker was being
transferred to a federal prison in Butner, North Carolina.

Once

again, Hooker was transported on the floor of a van, as had been
done on August 8.

Hooker alleges that the marshals did not

contact personnel at that jail before the transfer to obtain
information about his medical condition or special needs.

When

he was met at the airport in North Carolina, however, employees
of the Bureau of Prisons transported him in a handicapaccessible van.
Hooker brings a claim of negligence under the FTCA.

In

support, he alleges that the USMS owed him “a duty to plan for
his transport and to transport him in a manner that was safe and
did not subject him to harm.”

Doc. 90, ¶ 21.
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He further

alleges that under the USMS Policy Directives, PD
9.21(E)(5)(b)(1), the USMS “had a duty to obtain advice from
medical professionals and to obtain a written statement from the
medical staff of the [jail] prior to any transfer.”

Id., ¶ 22.

He contends that the USMS breached its duty under PD
9.21(e)(5)(b) by failing to obtain a written statement,
resulting in his transfer “in a manner that caused his
significant personal injury.”

Id. at ¶ 24.

Policy Directive 9.21 is titled “IN-DISTRICT PRISONER
MOVEMENTS.”

Doc. 72-4.

The stated purpose of the directive is

to establish policy and procedures for moving prisoners by the
USMS “either within a district or up to 50 miles in a bordering
district.”

PD 9.21(B).

Part E provides “Procedures,” and

Subpart 5 pertains to “Special Transportation Movements.”
Section b provides procedures for “the transportation of
physically, medically, and/or mentally impaired prisoners (male,
female, adult, or juvenile).”

PD 9.21(E)(5)(b)(1) provides as

follows:
1)
Obtain a written statement from the medical staff of
the sending institution/facility. The statement will
include:
a)
The prisoner’s physical and
emotional state;
b)
Special requirements for movement or safekeeping, such
as isolation or special medication(s);
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c)
Recommendations concerning the use of additional
restraining devices (USMS personnel will
apply those restraining devices that are necessary to
ensure the impaired person is transported in
a safe and secure manner); and
d)
Requirement for an attendant(s) to assist in the
transportation and safekeeping.
Doc. 72-4.

Subpart (b)(2) addresses comingling of prisoners,

which is not at issue in this case.

IV.

Discussion
The United States moves to dismiss on the ground that

Hooker’s claim is barred by sovereign immunity based on the
discretionary function exception to the waiver provided in the
FTCA.

Hooker contends that the claim is not barred by the

discretionary function exception because PD 9.21(E)(5)(b)
governs the USMS deputies’ conduct at issue here.

The United

States argues that PD 9.21(E)(5)(b) does not apply to the
transports at issue in this case.

It further argues that, even

if it did apply, failure to comply did not cause the harm
alleged and the decision of what vehicle to use was both
discretionary and subject to a policy judgment.
To recap, whether the discretionary function exception
applies in a particular situation depends on analysis conducted
in several steps.

First, the court must identify the conduct
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that is alleged to have caused the harm.
2102930, at *2.

Davallou, 2021 WL

Next, the court must determine whether the

alleged conduct was discretionary.

Id.

If the conduct was

discretionary, the court continues on to decide whether the
conduct was susceptible to a policy analysis.

A.

Id.

Conduct Alleged to Have Caused Harm

In his current complaint and in opposition to the motion
to dismiss, Hooker alleges that his injuries were caused by the
USMS’s failure to comply with PD 9.21(E)(5)(b)(1).
Specifically, he contends that the USMS was required to consult
medical professions and to obtain and comply with a written
statement from medical staff at the jail before transporting
him.

He further contends that because the USMS failed to comply

with the written statement requirement, he was transported in an
unsafe manner on two occasions that caused injuries.

B.

Discretionary

Hooker contends that the duty to get a written statement
was not discretionary because it was required by PD
9.21(E)(5)(b)(1).

The United States contends that PD

9.21(E)(5)(b)(1) does not apply to the transports at issue in
this case.

As the court held previously, the policy directive
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is somewhat ambiguous with respect to the circumstances in this
case.

Doc. 84, at *10.

And, once again, it is not necessary to

resolve the parties’ disagreement over the proper construction
of PD 9.21(E)(5)(b)(1).
In the prior complaint, Hooker alleged that he was harmed
by the USMS deputies’ decision to transport him on the floor of
a van instead of providing a special vehicle or ambulance.

He

alleged that the USMS deputies violated PD 9.21(E)(5)(b)(1) by
failing to get a written statement from the medical staff at the
jail.

The court concluded that the USMS retained the discretion

to choose what vehicle to use to transport Hooker, even if PD
9.21(E)(5)(b)(1) applied, and that the vehicle decision was a
policy-related judgment, making the discretionary function
exception applicable so that sovereign immunity barred the
claim.
The court held that PD 9.21(E)(5)(b)(1) imposes the duty
“to obtain a written statement from a medical official at the
correctional facility from which the inmate is being
transported.”

Doc. 85, at *11.

The policy directive does not

require the use of specific kinds of vehicles.

Id.

The policy

directive also “neither directs medical officials at sending
institutions to specify the kinds of vehicles that should be
used to transport impaired prisoners, no grants medical
13

officials the authority to dictate the specific manner in which
the USMS transports prisoners.”

Id.

Instead, the policy

directive requires the USMS to collect information that will be
used in the discretionary decision about what vehicle to use for
transporting a prisoner with an impairment.

Id.

Although Hooker now alleges that the challenged conduct is
the failure to obtain a written statement and to follow its
requirements, the new allegation does not change the result.
Hooker contends that if a statement has been requested, the
medical staff would have articulated a safe means for his
transport.

He also argues that the USMS was obligated to abide

by the recommendations of the medical staff as to a safe method
of transport.
As the court previously held, the written statement
requirement obligates the USMS to collect information to use in
the discretionary decision about how it will transport a
prisoner with an impairment.

Contrary to Hooker’s argument,

however, the written statement requirement does not obligate the
USMS to comply with any recommendation made by the medical
staff.

For that reason, failure to comply with the written

statement requirement does not change the discretionary nature
of the decision-making process as to how the transport would be
conducted.
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Therefore, the claim as alleged in the second amended
complaint (document no. 90) challenges the discretionary
function of the USMS as to how it will transport prisoners with
impairments.

C.

Policy-Related Judgments

The court addressed the policy judgment aspect of the
discretionary function analysis in the prior order.
84, at *12-18.

Doc. no.

There is no need to repeat that analysis here.

Hooker has not carried his burden to show that the discretion
exercised by the USMS in not policy related.

V.

Result
Hooker bears the burden of showing that subject matter

jurisdiction exists and that the discretionary judgment function
does not apply here.

Because he has not done that, sovereign

immunity precludes the subject matter jurisdiction of this court
over Hooker’s FTCA claim.7

Nevertheless, as this court has stated previously, the
circumstances Hooker alleges are sympathetic and troubling. The
allegations raise concern about the transport policies and
practices of the USMS-Maine, in particular for those who suffer
with physical impairments. Presumably, the USMS has taken steps
to rectify the conditions that pertained when Hooker was
transported by the USMS in Maine.
15
7

Conclusion
For the foregoing reasons, it is recommended that the court
grant the motion of the United States to dismiss the second
amended complaint for lack of subject matter jurisdiction
(document no. 126).

______________________________
Andrea K. Johnstone
United States Magistrate Judge
June 7, 2021
cc:

Counsel of Record

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