HOOKER v. KNIGHTLY et al

Filing 84

ORDER granting 48 Motion to Dismiss for Lack of Jurisdiction By JUDGE JOSEPH N LAPLANTE. (lrc)

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

Civil No. 17-cv-345-JNL

United States of America
O R D E R
In this case, plaintiff Samuel Hooker asserts claims under
the Federal Tort Claims Act (“FTCA”) against the United States
of America.

Before the court is the defendant’s motion to

dismiss (Doc. No. 48), filed pursuant to Fed. R. Civ. P
12(b)(1), seeking dismissal of Hooker’s claims on the basis that
this court lacks subject-matter jurisdiction over this matter.
The plaintiff filed an objection (Doc. No. 72), the defendant
filed a reply (Doc. Nos. 75, 76) to the objection, and the
plaintiff filed a surreply (Doc. No. 83).1
Motion to Dismiss Standard
“[A] party seeking to invoke the jurisdiction of a federal
court must bear the burden of demonstrating the existence of
such jurisdiction.”

Gordo-González, 873 F.3d 32, 35 (1st Cir.

1Although

Hooker filed this action pro se, the court
appointed counsel to represent him for the limited purpose of
responding to the motion to dismiss addressed in this Order.
See Feb. 26, 2019 Order (Doc. No. 55); June 4, 2019 Order (Doc.
No. 63).
1

2017).

When ruling on a motion to dismiss for lack of subject

matter jurisdiction, see Fed. R. Civ. P. 12(b)(1), the court
must “‘construe the [c]omplaint liberally and treat all wellpleaded facts as true, according the plaintiff the benefit of
all reasonable inferences.’”

Hajdusek v. United States, 895

F.3d 146, 148 (1st Cir. 2018) (citation omitted).

Dismissal

under Rule 12(b)(1) is appropriate when the facts alleged in the
complaint, taken as true, “fail to bring the case within the
court’s subject-matter jurisdiction.”
35 (1st Cir. 2017).

Gordo-González, 873 F.3d

That said, when the United States

challenges claims brought under the FTCA with a Rule 12(b)(1)
motion, the claim can survive “only if [the complaint] contains
sufficient facts to demonstrate that the FTCA applies to the
claims asserted and that none of the FTCA’s manifold exceptions
is apposite.”

Id. at 36.
Background

At all times relevant to this matter, Hooker was a federal
detainee housed in the Cumberland County Jail (“CCJ”) in Maine.
Because Hooker is partially paralyzed, he is confined to a
wheelchair.

On several occasions, United States Marshals

2

Service (“USMS”) deputies transported Hooker, either to court or
to an airport, in a USMS van that was not wheelchair accessible.2
At the time of the incidents giving rise to this suit, indistrict prisoner movements, such as the ones at issue here,
were subject to USMS Policy Directive (“PD”) 9.21(E).

That

directive, in pertinent part, states:
5.

Special Transportation Movements:
a.

Physically, Mentally, and/or Medically
Impaired Arrestees: USMS prisoner
transportation procedures, including the use
of restraining devices, will be followed
when arresting a person believed to be
impaired.
1)

If special vehicles are needed to
transport the impaired prisoner (i.e.,
to court productions, a medical
appointment, or to meet JPATS),3 an
ambulance or suitably equipped vehicle
will be utilized and funded from the
Federal Prisoner Detention (FPD)
appropriation . . . .

. . .
b.

Movement of Impaired Prisoners: The
following procedures apply to the
transportation of physically, medically
and/or mentally impaired prisoners (male,
female, adult, or juvenile):

2At

the time of the events underlying the claims in this
action, the USMS did not own a wheelchair accessible van. In
his complaint, Hooker asks the court to order the defendant to
buy one.
3JPATS

is the Justice Prisoner and Alien Transportation
System, see Pl.’s Obj., Attach. 4 (Doc. No. 72-4), at 1, and is
not relevant to Hooker’s claims.
3

1)

Obtain a written statement from the
medical staff of the sending
institution/facility. The statement
will include:
a)
b)

Special requirements for movement
or safekeeping, such as isolation
or special medication(s);

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)

2)

The prisoner’s physical and
emotional state;

Requirement for an attendant(s) to
assist in the transportation and
safekeeping.

Whenever possible, impaired prisoners
will not be housed, transported, or
comingled with other prisoners. Every
effort should be made to place the
impaired prisoner in a facility that
will meet the specific medical needs of
the prisoner. The holding institution
will be informed of the prisoner’s
special condition.

USMS PD 9.21(e), Pl.’s Obj., Attach. 4 (Doc. No. 72-4), at 6-7.
Each time USMS deputies transported Hooker by van, they
lifted him out of his wheelchair by his arms and legs and placed
him on the floor of the rear compartment of the van rather than
on a seat.

After they loaded him into the van, they put his

wheelchair in the rear compartment along with him.

During one

or more of his trips in a van: (1) Hooker complained about not
4

having a seatbelt, and deputies told him to hold onto his
wheelchair; (2) deputies placed him on something metal that
scraped him; (3) his wheelchair struck him in the head; (4) he
suffered injuries to his head, neck, back, and shoulder; and (5)
he experienced emotional distress.
Based upon the foregoing, Hooker initially filed multiple
claims against multiple defendants.

All that remain are

negligence claims asserted under the FTCA arising from: (1) the
USMS’s failure to transport him in a wheelchair-accessible van;
(2) the deputies’ failure to secure him with a seatbelt; and (3)
the manner in which deputies loaded him into the van.
Discussion
The United States moves to dismiss, asserting that, because
Hooker’s claims are based upon the USMS deputies’ performance of
discretionary functions, and district courts lack subject matter
jurisdiction over such claims under the FTCA’s discretionary
function exception.

In his objection to the motion to dismiss,

the plaintiff concedes that his second and third theories of
liability (concerning the deputies’ failure to secure him with a
seatbelt and the manner in which the deputies loaded him into
the van), are barred by the FTCA’s discretionary function
exception.

Hooker frames his remaining claim as follows: “This

case now involves one issue: Did the transport of a handicapped

5

prisoner by the [USMS] require the use of a special vehicle such
as an ambulance or suitably equipped vehicle or van?”

Pl.’s

Mem. of Law (Doc. No. 72-1), at 1.
I.

The FTCA
The FTCA is “a limited waiver of sovereign immunity.”

Hajdusek, 895 F.3d at 149.

It provides that

the district courts . . . have exclusive jurisdiction
of civil actions on claims against the United States,
for money damages . . . for 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(b)(1).

As a waiver of sovereign immunity,

“‘[t]he FTCA must be ‘construed strictly in favor of the federal
government.’”

Evans v. United States, 876 F.3d 375, 380 (1st

Cir. 2017) (citation omitted), cert. denied, 139 S. Ct. 81
(2018).
In addition, the FTCA's waiver of sovereign immunity
is narrowed by exceptions. One such exception,
commonly called the discretionary function exception,
bars liability for claims “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.”
Id. (quoting 28 U.S.C. § 2680(a)).

“In evaluating a claim under

the FTCA, a court must . . . determine whether the claim is

6

based on a discretionary function as contemplated by section
2680; if so, the case must be dismissed for want of
jurisdiction.”

Hadjusek, 895 F.3d at 149.

The court utilizes a two-step process for conducting the
discretionary-function analysis:
First, [the court] must identify the conduct that
allegedly caused the harm. Second, [the court] must
ask whether this conduct is of the nature and quality
that Congress, in crafting the discretionary function
exception, sought to shelter from tort liability. The
latter analysis encompasses two questions: Is the
conduct itself discretionary? If so, is the
discretion susceptible to policy-related judgments?
The word “susceptible” is critical here; [the court]
do[es] not ask whether the alleged federal tortfeasor
was in fact motivated by a policy concern, but only
whether the decision in question was of the type that
policy analysis could inform. “The focus of the
inquiry is not on the agent’s subjective intent in
exercising the discretion conferred by statute or
regulation, but on the nature of the actions taken and
on whether they are susceptible to policy analysis.”
Hajdusek, 895 F.3d at 150 (quoting United States v. Gaubert, 499
U.S. 315, 325 (1991)) (other citations and internal quotation
marks omitted); see also Gordo-González, 873 F.3d at 36
(“[S]ection 2680(a) will strip a court of jurisdiction only if
the challenged conduct is both discretionary and policydriven.”).

“[T]he burden [is] on the plaintiff to show that

discretionary conduct was not policy-driven, and, hence, falls
outside the [discretionary function] exception.”

Carroll v.

United States, 661 F.3d 87, 100 n.15 (1st Cir. 2011).

7

II.

The Conduct at Issue
In both his complaint and his memorandum of law, Hooker

makes clear that “the specific conduct here is transporting a
paraplegic on the floor of a van instead of providing a special
vehicle or ambulance.”

Pl.’s Mem. of Law (Doc. No. 72-1) 13.

Having identified the conduct that allegedly caused Hooker harm,
the court must address whether that conduct was discretionary
and, if so, whether the discretion the deputies exercised was
susceptible to policy-related judgments.
III. Discretionary Conduct
“The conduct of federal employees is generally held to be
discretionary unless ‘a federal statute, regulation, or policy
specifically prescribes a course of action for an employee to
follow.’”

Evans, 876 F.3d at 381 (quoting Berkovitz ex rel.

Berkovitz v. United States, 486 U.S. 531, 536 (1988)).

The

parties here agree that, to the extent there is any federal
policy that prescribed a course of action that USMS deputies
were obligated to follow when transporting disabled prisoners,
that policy was set out in PD 9.21(E)(5).

The parties disagree,

however, as to both the proper interpretation of PD 9.21(E)(5)
and its application to the circumstances of this case.
The defendant contends that PD 9.21(E)(5)(b), which
includes the written statement requirement, is inapplicable here

8

because that provision applies only to inmate transports from
one correctional facility to another, and Hooker does not allege
that he was being transported to a correctional facility when he
was injured.

Defendant also asserts that PD 9.21(E)(5)(a),

which is applicable here, does not require the use of special
vehicles to transport impaired prisoners, but only prescribes
the procedure that must be followed in the event such a vehicle
is needed, and that deciding whether a special vehicle is needed
is left to the discretion of the deputies transporting a
prisoner.
Hooker argues that PD 9.21(E)(5)(b) “is a general provision
applicable to all movements of impaired prisoners,” Pl.’s Mem.
of Law (Doc. No. 72-1) 11, and that PD 9.21(E)(5)(a) concerns
more specific circumstances.

Hooker also contends that PD

9.21(E)(5)(b)(1) requires deputies transporting impaired
prisoners to obtain a written statement from the medical staff
at the prisoner’s correctional facility, and that it is the
sending facility’s medical staff, and not the USMS, that has the
discretion to determine how impaired prisoners are to be
transported and, therefore, whether a special vehicle is
required for a specific transport.

Hooker does not argue that

PD 9.21(E)(5)(a)(1) itself required the USMS to use a special
vehicle for his transport.

Hooker claims instead that: (1) PD

9.21(E)(5)(b)(1) required the USMS to request a written
9

statement from the CCJ medical staff; (2) that the written
statement would have included a directive for the use of a
special vehicle to transport Hooker; (3) the USMS would have
then had a non-discretionary duty to follow the directive in the
CCJ medial staff’s written statement; and (4) Hooker’s injuries
resulted from the USMS deputies’ failure to transport him in a
special vehicle, which, had they obtained the medical staff’s
written statement as required by PD 9.21(E)(5)(b)(1), they would
have been required to use.

In other words, Hooker asks the

court to find that the USMS’s failure to obtain written
statement from CCJ medical staff does not alleviate the USMS’s
obligation to follow the directives that such a statement would
have contained, had it been obtained.
The language of PD 9.21(E)(5) is somewhat ambiguous,
and the parties have not provided, and the court has been unable
to locate, any judicial opinion that interprets it.

The court

can decide the issue before it, however, without resolving the
parties’ disagreement over the proper construction of PD
9.21(E)(5).4

4If

it were necessary to construe PD 9.21(E)(5), the court
would be inclined to determine that PD 9.21(E)(5)(a) applies to
the transport of impaired prisoners who have been arrested but
not yet placed in a correctional facility while PD 9.21(E)(5)(b)
applies to the transport of prisoners who, at the time of
transport, are being held in a correctional facility with a
medical staff.
10

Assuming, as Hooker contends, that the deputies who
transported him were obligated to follow PD 9.21(E)(5)(b), the
non-discretionary duty that PD 9.21(E)(5)(b)(1) imposes on
deputies performing transport duties is the obligation to obtain
a written statement from a medical official at the correctional
facility from which the inmate is being transported, not an
obligation to use specific kinds of vehicles to transport
prisoners with specific impairments.

Contrary to the argument

Hooker presses, it is not at all apparent that the USMS’s
compliance with PD 9.21(E)(5)(b) would have resulted in
instructions from the CCJ medical staff that would have required
the USMS to transport Hooker in a wheelchair accessible van.
PD 9.21(E)(5)(b)(1) mentions several “requirements” that
may appear in a medical staff’s written statement, but it
neither directs medical officials at sending institutions to
specify the kinds of vehicles that should be used to transport
impaired prisoners, nor grants medical officials the authority
to dictate the specific manner in which the USMS transports
prisoners.

Rather, PD 9.21(E)(5)(b) directs the USMS to collect

information on impaired prisoners from medical personnel, which
may include certain requirements or recommendations for

11

transport, for the USMS to use when deciding how, and in what
vehicle, the inmate should be transported.5
In short, neither the complaint in this case, nor Hooker’s
objection to the defendant’s motion to dismiss, identifies any
federal statute, regulation, or policy that dictates the kind of
vehicle the USMS deputies must use to transport an impaired
prisoner.

Accordingly, the USMS deputies had the discretion to

select the vehicle used to transport Hooker.
F.3d at 381.

See Evans, 876

The court therefore turns to the question of

whether the exercise of that discretion was subject to policyrelated judgments.
IV.

Policy-Related Judgments
“‘Because the law presumes that the exercise of official

discretion implicates policy judgments,’ [Hooker] bears the
burden of demonstrating that the discretion exercised by [the
USMS and/or its deputies] was not susceptible to policy
analysis.”

Id. at 383 (citation omitted).

As noted above, the

question is not “whether the alleged federal tortfeasor was in

5The

defendant suggests that the audience for the written
report from the sending institution is the medical staff at a
receiving institution, not the USMS, but PD 9.21(E)(5)(b)(1)
refers to USMS personnel and to prisoner transport, which is the
responsibility of the USMS. Moreover, PD 9.21(E)(5)(b)(2)
identifies a Form USM-130, not the written statement from the
sending institution’s medical staff, as the vehicle by which a
receiving institution is informed of an incoming prisoner’s
medical condition.
12

fact motivated by a policy concern, but only whether the
decision in question was of the type that policy analysis could
inform.”

Hajdusek, 895 F.3d at 150; see also Gaubert, 499 U.S.

at 325.
“The discretionary function exception protects only those
discretionary choices that are ‘grounded in social, economic,
and political policy.’”
omitted).

Evans, 876 F.3d at 383 (citation

When addressing the policy judgment component of the

discretionary function analysis, “the question is whether
plaintiff [has] rebutted the presumption that the government’s
exercise of discretion was ‘policy-driven — that is, . . .
fueled by variables about which reasonable persons can differ.’”
Valdez v. United States, 657 F. App’x 3, 5 (1st Cir. 2016)
(citations omitted).
The policy judgment aspect of the discretionary function
analysis “requires a case-by-case approach.”
at 150.

Hajdusek, 895 F.3d

It also “requires a determination of where the activity

[at issue] falls on the spectrum from non-policy activities
(such as driving a car) to policy-related ones (such as drafting
regulations).”

Tobar v. United States, 731 F.3d 938, 945 (9th

Cir. 2013).
In this case, if Hooker were claiming that he was injured
as a result of the USMS’s decision not to include a wheelchairaccessible van in its fleet of vehicles, that activity is
13

plainly policy related, and therefore would be covered by the
discretionary-function exception.

Cf. Stockberger v. United

States, 225 F. Supp. 2d 949, 958 (S.D. Ind. 2002), aff’d, 332
F.3d 479 (7th Cir. 2003) (finding that, with regard to enacting
a policy to transport ill Bureau of Prisons (“BOP”) employees,
“the following policy considerations might be considered:
whether or not current BOP vehicles would be sufficient to meet
the need; how to finance the purchase of new vehicles if
necessary; and who would drive the vehicles,” and that “enacting
a program would involve a balancing of safety and economic
concerns, and this is the type of decision protected by 28
U.S.C. § 2680(a).”).

If, on the other hand, Hooker were

claiming that he was injured because the driver of a van in
which he was being transported was operating the van in a
negligent or reckless manner, it seems clear that that conduct
is not policy related and would not be covered by the
discretionary function exception.

Cf. Estabrook v. United

States, No. 16-CV-11772-ADB, 2018 U.S. Dist. LEXIS 210819, at
*10, 2018 WL 6592092, at *4 (D. Mass. Dec. 13, 2018) (“‘If one
of the [federal] officials involved in this case drove an
automobile on a mission connected with his official duties and
negligently collided with another car, the exception would not
apply,’ because the discretion required by driving would not
have been ‘grounded in regulatory policy.’”
14

(quoting Gaubert,

499 U.S. at 325 n.7)); see also, e.g., Dobrowski v. United
States, No. 2:11-cv-02835 JAM-CKD, 2013 U.S. Dist. LEXIS 160382,
at *8, 2013 WL 5954901, at *3 (E.D. Cal. Nov. 7, 2013) (denying
motion to dismiss, on discretionary-function grounds, FTCA
negligence claim based upon improper “selection of a gear before
stepping on the gas [while driving a USMS van] and backing up
without care”); Vinzant v. United States, No. 2:06-CV-10561,
2010 U.S. Dist. LEXIS 143672, at *3, *16, 2010 WL 1857277, at
*1, *6 (E.D. La. May 7, 2010), aff’d 458 F. App’x 329, 329 (5th
Cir. 2012) (ruling that plaintiff stated viable FTCA negligence
claim by alleging that he was injured when marshals driving
prisoner transport van “were speeding and carelessly weaving
through traffic, despite the dangerous weather conditions”).
As to the relevant conduct in this case, failing to use a
special vehicle to transport him, Hooker argues that “the
decision to transport [him] on the floor of the van – and not in
a suitably equipped vehicle or ambulance – is not a decision
susceptible to policy-related judgments,”

Pl.’s Mem. of Law

(Doc. No. 72-1), at 13, and characterizes that decision as “‘a
mundane, administrative, garden-variety, housekeeping problem
that [was] about as far removed from the policies applicable to
the [USMS’s] mission as it is possible to get,’” id. at 14

15

(quoting Gotha v. United States, 115 F.3d 176, 181 (3d Cir.
1997)).6
Courts have routinely held that decisions about how to
transport prisoners in vehicles involve policy-related
judgments.

See, e.g., Vinzant v. United States, 458 F. App’x

328, 333 (7th Cir. 2012) (per curiam) (holding that deciding
whether to use a seatbelt to secure a prisoner being transported
in a van involves policy-related judgments); Menolascina v.
United States, No. 12 C 90, 2013 U.S. Dist. LEXIS, at *7-*8,
2013 WL 707920, at *2 (N.D. Ill. Feb. 26, 2013) (“the procedures
used to transport prisoners clearly relate to considerations of
public policy”); Crane v. United States, No. 3:10-68-AC, 2011
U.S. Dist. LEXIS 153120, at *18, 2011 WL 7277317, at *7 (D. Or.
Nov. 29, 2011) (ruling that choices made by deputies concerning
whether to assist prisoners getting off van “are the kind of
policy-based decisions that the [discretionary function
exception] is intended to shield”).

6In

In particular, the First

support of that argument, Hooker points out the
provision in PD 9.21(E)(5)(a) that identifies a source of
funding for special vehicles when they are needed to transport
impaired prisoners. In Hooker’s view, the availability of that
source of funding takes cost off the table as a policy concern
informing decisions about whether to use special vehicles to
transport impaired prisoners. But, as previously stated, see
supra note 4, it is not clear that PD 9.21(E)(5)(a)(1) applies,
and even if it does, the mere fact that it identifies a source
of funds does not mean that decisions concerning the use of
those funds do not implicate policy concerns.
16

Circuit recently held, in Hadjusek, that the discretionary
function exception applied to discretionary conduct by a
relatively low-level federal officer, when that conduct required
the officer to weigh competing policy goals.

See Hadjusek, 895

F.3d at 151 (applying the discretionary function exception to
conduct of Marine drill sergeant’s decision to require a Marine
recruit to engage in more-than-normal strenuous exercise for a
longer-than-normal period, which resulted in permanent
disability to the recruit, because determining how hard and for
how long “a potential Marine should exercise . . . calls for
weighing the policy goals that are furthered by strenuous, even
exhaustive exercise against he goals of avoiding attrition
through injury or otherwise.”).
Here, determining what kind of vehicle should be used to
transport a particular prisoner, and how to use that vehicle to
do so, calls for weighing the policy goals, such as financial
economy, logistical efficiency, and staffing simplicity, that
are furthered by using a regular vehicle to transport a prisoner
who uses a wheelchair, against the policy goal of providing the
ideal mode of transportation for each prisoner.

The USMS

deputies’ conduct in transporting Hooker in a van that was not
wheelchair accessible, therefore, constituted policy-based
discretionary action.

Accordingly, the discretionary function

exception, 28 U.S.C. § 2860(a), precludes this court from
17

exercising subject-matter jurisdiction over Hooker’s FTCA claim
alleging that USMS deputies were negligent in failing to
transport Hooker in a wheelchair accessible vehicle.
That said, the court also acknowledges that Hooker’s claims
are sympathetic.

The court’s sympathy for Hooker, however,

cannot overcome its lack of subject matter jurisdiction over his
claims.
Conclusion
For the foregoing reasons, the defendant’s motion to
dismiss (Doc. No. 48) for lack of subject matter jurisdiction is
GRANTED.

Hooker’s three claims, as set forth in this Order, are

thus dismissed.

The dismissal of Hooker’s claims is without

prejudice to Hooker’s ability to file an amended complaint,
within thirty days of the date of this Order, that asserts: (1)
a claim that he was injured as a result of the deputies’ failure
to comply with PD 9.21(E)(5)(b)(1); and/or (2) a claim asserting
that his injuries resulted from the USMS deputies’ violation of
any implicit or explicit policy, directive, rule, or regulation
which requires that USMS employees comply with state laws,
including state motor vehicle and traffic laws.7

7For

example, Maine state law generally requires that “a
person 18 years of age or older [who] is a passenger in a
vehicle that is required by the United States Department of
Transportation to be equipped with seat belts, the passenger
must be properly secured in a seatbelt,” 29-A M.R.S.A. §
18

Finally, the court appreciates Attorney Wilbur Glahn’s
service as a court-appointed advocate int his case, which may
conclude with this Order.

Should Attorney Glahn wish to

continue with his representation of Hooker in this matter in
light of the paragraph above the court asks that he notify the
Deputy Clerk.

If not, his appointment will be terminated.

SO ORDERED.
____________________________
Joseph N. Laplante
United States District Judge
September 27, 2019
cc:

Samuel Hooker, pro se
Wilbur A. Glahn III, Esq.
James D. Concannon, Esq.

2081(3-A), although medical exemptions to that rule may be
obtained if documented by a physician, see id. at § 2081(4-A).
The court in this Order grants Hooker leave to amend his
complaint to assert, if he can, that the USMS deputies violated
the Maine seatbelt law, or any other state or federal law, and
that such violation, whether or not it was specifically
referenced in any policy, directive, regulation or rule, would
remove the deputies’ actions from the protection of the
discretionary function exception. Cf., e.g., Stout v. United
States, 721 F. App’x 462, 470 (6th Cir. 2018) (holding that “to
the extent that the United States had a duty grounded in agency
directives or state law, the discretionary function exception
does not apply to such duty”); cf. also Montijo-Reyes v. United
States, 436 F.3d 19, 25 n.8 (1st Cir. 2006) (declining to decide
whether state law can be the source of a mandatory duty so as to
defeat the discretionary function exception to an FTCA claim).
19