Gardner, et al. v. United States of America, et al.

Filing 74

MEMORANDUM. Signed by Judge James K. Bredar on 8/16/2017. (jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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DOROTHY F. GARDNER et al.,

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Plaintiffs

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v.

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UNITED STATES OF AMERICA,
Defendant
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CIVIL NO. JKB-15-2874

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MEMORANDUM
I. Background
This case alleges wrongful death caused by various members of the staff of the Federal
Correctional Institution at Cumberland, Maryland (“FCI Cumberland”), following the death of
inmate Stephen P. Gardner (“Gardner” or the “Decedent”) there after sudden cardiac arrest on
July 17, 2013. (Compl., ECF No. 1.) The Plaintiffs, Dorothy F. Gardner, Christopher Gardner,
and Brendan Gardner, who are respectively the widow and sons of the Decedent, sued medical
and correctional personnel at FCI Cumberland, claiming a right to relief under the authority of
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), for alleged deliberate indifference
in violation of the Eighth Amendment, as well as under the Federal Tort Claims Act for
negligence and gross negligence. (Id. ¶ 1.)
Previously, the Court granted summary judgment for all of the individual Defendants
sued under Bivens, which left only Count II, the tort claim against the United States of America
(the “Government”), in the case. (Mem. Op. May 4, 2016, Order, May 4, 2016, ECF Nos. 49,
50.) The complaint alleges the Government breached its duty of care to Gardner, despite its

knowledge of his extensive medical history, by failing to indicate in his medical records that he
needed special accommodations specifically tied to his cardiac history (Compl., ¶¶ 40, 45, 51);
by failing to indicate in his medical records that Gardner required a cardiac consultation or
cardiac testing such as a stress test1 (id. ¶¶ 41, 47, 52); by assigning him to a prison job as a
janitor/groundskeeper without a prior cardiology consultation or cardiac testing2 (id. ¶¶ 53, 57);
by requiring him to work outdoors in temperatures greater than ninety degrees and in high
humidity, which presented significant and obvious risk to Gardner of medical complications,
given his medical conditions of coronary artery disease (“CAD”), hypertension, and high
cholesterol, his medication regimen, and his mobility difficulties related to arthritis (id. ¶¶ 6062); by failing to properly care for, treat, and manage Gardner’s medical conditions (id. ¶ 88);
and by failing to ensure that he worked in safe conditions that would not be harmful to his health
and safety (id. ¶ 89).
Plaintiffs thus allege that Gardner’s heart attack and death were a direct result of his
working outside in extreme heat and humidity. (Id. ¶ 80.) Stated slightly differently, Plaintiffs
allege that the Government failed to accommodate “Gardner’s serious medical needs and thereby
required and/or allowed him to work in extreme and strenuous conditions, directly leading to Mr.
Gardner’s death.” (Id. ¶ 85; see also ¶¶ 90-91.)
Now pending before the Court is the Government’s motion to dismiss for lack of
subject-matter jurisdiction or, in the alternative, for summary judgment. (ECF No. 67.) The
Court has considered it, Plaintiffs’ opposition (ECF No. 70), and the Government’s reply (ECF

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Plaintiffs say in their opposition that they “do not proceed on any malpractice claim related to the lack of
cardiac stress testing or cardiology consultation after Mr. Gardner’s arrival at Cumberland.” (Pls.’ Opp’n 31 n.23,
ECF No. 70.)
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See note 1, supra.

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No. 72). No hearing is necessary. Local Rule 105.6 (D. Md. 2016). The motion to dismiss for
lack of subject-matter jurisdiction will be granted.
II. Standard for Dismissal under Rule 12(b)(1)
The burden of proving subject-matter jurisdiction is on the plaintiff. A challenge to
jurisdiction may be either facial, i.e., the complaint fails to allege facts upon which subjectmatter jurisdiction can be based, or factual, i.e., jurisdictional allegations of the complaint are not
true. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). See also Kerns v. United States, 585
F.3d 187, 192 (4th Cir. 2009) (same); Richmond, Fredericksburg & Potomac Ry. Co., 945 F.2d
765, 768 (4th Cir. 1991) (same). In the case of a factual challenge, it is permissible for a district
court to “consider evidence outside the pleadings without converting the proceeding to one for
summary judgment.” Richmond, Fredericksburg, 945 F.2d at 768 (citing Adams, 697 F.2d at
1219).
III. Analysis
Plaintiffs’ allegations in their complaint are consistent with their theory of the case as
presented in their opposition to the Government’s motion. They place the blame for Gardner’s
death on the Government’s assignment of him to his prison work job performing outside
maintenance on days with high temperatures despite his medical history of CAD, hypertension,
arthritis, etc. Plaintiffs’ theory of proximate cause fits squarely within the exclusive remedy
provided by the Inmate Accident Compensation Act (“IACA”), 18 U.S.C. § 4126(c)(4) (2017),
which authorizes the Government to pay “compensation to inmates or their dependents for
injuries suffered in any industry or in any work activity in connection with the maintenance or
operation of the institution in which the inmates are confined.” The IACA also states that
payments shall be made “under rules and regulations promulgated by the Attorney General.” Id.
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In the Code of Federal Regulations, the Attorney General has amplified the description of
coverage under IACA.

The regulations “govern the payment of accident compensation,

necessitated as the result of work-related injuries, to federal prison inmates or their dependents”
and permit the award of compensation “for physical impairment or death resultant from injuries
sustained while performing . . . institutional work assignments involving the operation or
maintenance of a federal correctional facility.” 28 C.F.R. § 301.101 (2017). Further, the
regulations define “work-related injury” as including “any injury, including occupational disease
or illness, proximately caused by the actual performance of the inmate’s work assignment.” 28
C.F.R. § 301.102(a). A dependent of a deceased inmate may submit a claim for compensation as
a result of work-related death up to one year after the inmate’s work-related death. 28 C.F.R.
§ 301.302.
Whether or not a claim is made under IACA, “[i]nmates who are subject to the provisions
of these [IACA] regulations are barred from recovery under the Federal Tort Claims Act,” and
IACA provides the exclusive remedy in the event of work-related injury to inmates. 28 C.F.R.
§ 301.319. See also United States v. Demko, 385 U.S. 149, 152-53 (1966) (“Until Congress
decides differently we accept the prison compensation law as an adequate substitute for a system
of recovery by common-law torts.”); Vander v. U.S. Dep’t of Justice, 268 F.3d 661, 663-64 (9th
Cir. 2001) (IACA exclusive remedy for work-related injuries to inmates); Wooten v. United
States, 825 F.2d 1039, 1044 (6th Cir. 1987) (same); Aston v. United States, 625 F.2d 1210, 1211
(5th Cir. Unit B 1980) (same); Granade v. United States, 356 F.2d 837, 844 (2d Cir. 1966)
(same; cited with approval in Demko); Singleton v. Brown, No. 1:12-CV-02985-RBH, 2014 WL
107987, at *6 (D.S.C. Jan. 9, 2014) (same); Dabney v. Bledsoe, No. Civ. A. 1:03CV193, 2006
WL 1376903, at *3 (N.D. W.Va. May 17, 2006) (same). See also Nunes v. United States,

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No. 3:14CV109/MCR/EMT, 2014 WL 6801826, at *3 (N.D. Fla. Dec. 2, 2014) (prisoner’s
FTCA damage claim based on prison work assignment that he was medically unable to perform
and resulting injuries, some manifesting weeks and months later, barred by exclusive remedy of
IACA). The exclusiveness of the remedy applies to an injury stemming from a negligent job
assignment or the work-related aggravation of a pre-existing medical problem. Wooten, 825
F.2d at 1044-45 (citing Jewell v. United States, 274 F. Supp. 381 (N.D. Ga. 1967), and Aston,
625 F.2d 1210)).
Thus, Plaintiffs’ contention that the Government was negligent in assigning Gardner’s
prison job, despite his pre-existing medical conditions, and in requiring him to carry out its
duties, thereby resulting in his heart attack and death, is barred as a cause of action. The Court is
without subject-matter jurisdiction to entertain it. Thompson v. United States, 495 F.2d 192, 193
(5th Cir. 1974). Plaintiffs argue that IACA does not apply to their case because Gardner did not
die while on a work assignment; rather, he died later in the day while he was in his cell. (Pls.’
Opp’n 22-24.) Yet, they contrarily argue that his death was directly due to the conditions of his
work assignment.

(Id. 20 (citing the opinion of Plaintiffs’ expert, Dr. Glassberg).)

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regulations are clear that if an inmate’s death is proximately caused by actual performance of a
prison work assignment, then it is covered by IACA. 28 C.F.R. § 301.102(a). Nowhere in the
regulations is the concept of proximate cause tied to any necessity to be “on the job” at the time
of death. Either Plaintiffs attribute Gardner’s death to the conditions of his work assignment or
they do not. They have plainly chosen the former route, and, consequently, they are foreclosed
from suit under the FTCA.
To be sure, the Government contests the Plaintiffs’ argument that Gardner’s death was
due to his work activity since his death occurred within approximately one hour of his strenuous

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exercise in the prison gym, and, the Government contends, the exercise was directly responsible
for his heart attack and death; further, it says, his job assignment was consistent with his medical
condition. (Def.’s Mot. Supp. Mem. 21.) However, for the Court’s purpose of deciding whether
it has subject-matter jurisdiction, it must take Plaintiffs’ theory of the case as they present it.
And they are adamant in blaming Gardner’s death on the high heat he experienced while
working outside in his prison job. As a result, IACA is their exclusive remedy.
The same conclusion obtains under the “discretionary function” exception to the Federal
Tort Claims Act (“FTCA”), “whether or not the discretion involved be abused.” 28 U.S.C.
§ 2680(a). The burden is upon Plaintiffs to show an unequivocal waiver of sovereign immunity
and the inapplicability of the discretionary function exception to their case. See Welch v. United
States, 409 F.3d 646, 651 (4th Cir. 2005). Unless Plaintiffs meet that burden, their case must be
dismissed for lack of subject-matter jurisdiction. Id.
After considering the parties’ motion papers and the supporting authorities, the Court
concludes that, for the reasons stated in the Government’s motion papers, the assignment by
prison personnel of Gardner to his outside maintenance job constituted an exercise of discretion
by the Government within its purview of operating the federal prisons.

Thus, Plaintiffs’

argument that, before assigning a job to Gardner, prison personnel should have undertaken “a
more searching inquiry” of Gardner’s medical records, which did not indicate a restriction on his
working outside in the heat (Pls.’ Opp’n 26 n.19), is of no merit because that argument rests
upon an alleged abuse of discretion. Similarly, Plaintiffs’ contention that FCI Cumberland
should have curtailed all work activities outside on hot days is premised upon that institution’s
practice of restricting outside organized recreational activities in the heat and did not apply to
work activities; again, their argument implicates an abuse-of-discretion standard and is not

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cognizable under the FTCA.

See United States v. Gaubert, 499 U.S. 315, 322-23 (1991)

(discretionary act or omission involves “an element of judgment or choice” and is “based on
considerations of public policy” (internal quotation marks and citations omitted)); Wood v.
United States, 845 F.3d 123, 128 (4th Cir. 2017) (discretionary function exception applicable to
governmental decision within scope of regulatory policy “even when made negligently”). “For a
complaint to survive a motion to dismiss, it 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.” Gaubert, 499 U.S. at 324-25. Plaintiffs have not shown that the
Government’s actions in assigning Gardner to his prison job or requiring him to perform his
work assignment outside in high heat “are not the kind of conduct that can be said to be
grounded in the policy of the regulatory regime [of the Bureau of Prisons].”
IV. Conclusion
Plaintiffs have advanced no theory other than their argument that Gardner’s death was a
direct result of the heat and humidity he experienced in his prison job. Their suit under the
FTCA is foreclosed by the exclusive remedy provided in the Inmate Accident Compensation
Act. Alternatively, their suit is barred by the FTCA’s discretionary function exception. By
separate order, this case will be dismissed for lack of subject-matter jurisdiction.
DATED this 16th day of August, 2017.

BY THE COURT:

______________/s/____________________
James K. Bredar
United States District Judge

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