HOOKER v. KNIGHTLY et al

Filing 54

REPORT AND RECOMMENDATION re 48 MOTION to Dismiss for Lack of Jurisdiction filed by UNITED STATES, 51 MOTION to Stay filed by SAMUEL HOOKER Objections to R&R due by 3/12/2019 By MAGISTRATE JUDGE ANDREA K. JOHNSTONE. (sfw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

Samuel Hooker
v.

Civil No. 17-cv-345-JNL

United States

REPORT AND RECOMMENDATION
Plaintiff Samuel Hooker has filed this action, asserting
claims under the Federal Tort Claims Act (“FTCA”) against the
United States of America.

This action arises from four

occasions in 2012 and 2013 on which, Hooker alleges, he was
injured when United States Marshals Service (“USMS”) deputies
transported him between the Cumberland County Jail and the
United States District Court for the District of Maine in a
negligent manner. 1

Presently before the court are:

•

Defendant’s Motion to Dismiss (Doc. Nos. 46-48), which
has been referred to the undersigned magistrate judge
for a report and recommendation as to disposition; and

•

Hooker’s “Motion to Stay Defendant’s Motion to
Dismiss” (Doc. No. 51).

Motion to Stay (Doc. No. 51)
After the defendant filed the pending motion to dismiss,
Hooker filed a motion to stay this court’s consideration of the

1Other

claims and defendants Hooker included in his initial
complaint have been dismissed from this action.
1

motion to dismiss, until such time as the court rules on
Hooker’s most recent requests that the court appoint counsel to
represent him in this matter.

In his motion to stay, Hooker

asserts that he “is presently connected to a wound-vac and
therefore confined to a hospital bed twenty-four hours a day.”
Doc. No. 51, at 1.

As a result, Hooker asserts, he has no

access to a law library, legal research materials, or other
resources that would allow him to adequately respond to the
motion to dismiss.

Motion to Dismiss
In its motion to dismiss, filed pursuant to Fed. R. Civ. P.
12(b)(1), the United States argues that this court lacks
jurisdiction to consider Hooker’s FTCA claims.

Specifically,

the defendant claims that the relevant conduct of the USMS
deputies underlying Hooker’s claims constitutes “discretionary
conduct,” and that harm arising out of such conduct does not
give rise to FTCA liability, under the “discretionary function
exception” to the FTCA’s waiver of sovereign immunity.

See

Def.’s Mot. Dismiss (Doc. No. 48), at 6-7.
Once the defendant challenges the court’s jurisdiction over
Hooker’s FTCA claims on the basis that the discretionary
function exception applies, the plaintiff bears the burden to
demonstrate that the exception does not apply.
2

See Gordo-

González v. United States, 873 F.3d 32, 36 (1st Cir. 2017);
Sánchez ex rel. D.R.-S. v. United States, 671 F.3d 86, 97 (1st
Cir. 2012).

To meet that burden, the plaintiff must be able to

demonstrate, among other things, that some federal statute,
policy, regulation, directive, or other mandate prescribes a
course of conduct that the deputies in this case failed to
follow.

Without access to either a law library, counsel, or any

discovery (as this case has yet to proceed to the discovery
stage of litigation), plaintiff does not have access to any
resources that would enable him to even attempt to meet that
burden.
Accordingly, and without comment on the merits of
defendant’s arguments, the court finds that, under the
particular circumstances presented in this case by Hooker’s
medical condition, the jurisdictional question raised by the
defendant is appropriately decided on summary judgment, after
the plaintiff has had an opportunity to conduct, at a minimum,
limited discovery relevant to that jurisdictional question.

See

Blair v. City of Worcester, 522 F.3d 105, 111 (1st Cir. 2008)
(“district court generally retains ‘broad discretion in
determining whether to grant jurisdictional discovery’”; “a
party should be allowed to conduct jurisdictional discovery when
its position is not frivolous” (citations omitted)).

Further,

as the plaintiff is unable to access any legal resources, in an
3

Order issued simultaneously with this Report and Recommendation,
the court grants Hooker’s requests for appointed counsel and
directs the clerk’s office to attempt to locate counsel willing
to represent Hooker pro bono.

Conclusion
For the foregoing reasons, the district judge should deny
the defendant’s motion to dismiss (Doc. Nos. 46-48) without
prejudice to the defendant’s ability to assert the arguments
therein in a motion for summary judgment filed after limited
jurisdictional discovery occurs in this case.

Further,

plaintiff’s motion to stay (Doc. No. 51) should be denied as
moot.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice.
R. Civ. P. 72(b)(2).

See Fed.

Failure to file objections within the

specified time waives the right to appeal the district court’s
order.

See United States v. De Jesús-Viera, 655 F.3d 52, 57

(1st Cir. 2011).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
February 26, 2019
cc:

Samuel Hooker, pro se
James D. Concannon, Esq.

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