Hill v. United States

Filing 33

Judge Joseph L. Tauro: ORDER entered. MEMORANDUM and ORDER (Geraldino-Karasek, Clarilde)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

TYRONE B. HILL,
Plaintiff,
v.
UNITED STATES,
Defendant.

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Civil Action No. 12-40016-JLT

MEMORANDUM
February 12, 2013
TAURO, J.
I.

Introduction
Plaintiff Tyrone Hill, a federal prisoner proceeding pro se, brings a claim for negligence

against the United States under the Federal Tort Claims Act (“FTCA”).1 Hill alleges that he was
assaulted by another inmate while in custody and that the correctional officer on duty failed to
respond to the “help” button and his calls for help. The United States moves for dismissal under
Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction on the ground that
the discretionary function exception to the FTCA bars Hill’s suit. For the reasons set forth below,
the United States’s Motion to Dismiss [#16] is DENIED WITHOUT PREJUDICE.

1

In his complaint, Hill does not use the terms “negligence” or “Federal Tort Claims Act.”
Rather, Hill states, “The United States has failed to provide a safe and secure housing.” Because
of Hill’s pro se status and the posture of this case, this court construes the complaint liberally to
allege a claim for negligence under the FTCA.
1

II.

Factual Background2
Hill was an inmate at the Bureau of Prisons (“BOP”) Federal Medical Center in Ayer,

Massachusetts. On April 11, 2011, at approximately 8:30 a.m., Hill was in the shower room of
the N-5 Unit. Corrections Officer S. Martin (“CO Martin”) was conducting rounds at that time.
Michael Young, another inmate, entered the N-5 Unit shower room at approximately 8:30 a.m.,
and physically and sexually assaulted Hill. Hill called out for help. He also pushed the “help”
button in the shower room in order to alert officers that he was in need of assistance. CO Martin
did not respond to Hill’s calls for assistance or the “help” button.
III.

Procedural Background
Hill filed an administrative tort claim with the BOP on April 15, 2011.3 The BOP denied

his claim on October 14, 2011.4 Hill subsequently filed his Complaint [#1] on February 6, 2012.
On June 25, 2012, the United States filed a Motion to Dismiss [#16] under Rule 12(b)(1) for lack
of subject matter jurisdiction, claiming that the discretionary function exception to the FTCA bars
this suit. Hill filed an opposition to the United States’s motion on September 17, 2012.
IV.

Discussion
A.

Legal Standard

A court may resolve a Rule 12(b)(1) motion in one of two ways. First, where the
defendant challenges the legal sufficiency of the plaintiff’s jurisdictional allegations, the court may

2

The following facts are taken from Hill’s Complaint [#1].

3

Compl. Ex. 1 (Letter to Hill from BOP) [#1].

4

Compl. Ex. 1.
2

resolve the challenge based on the face of the complaint.5 In doing so, the court must take all
well-pleaded facts as true and indulge all reasonable inferences in favor of the plaintiff.6
Alternatively, where the defendant challenges the factual basis for subject matter
jurisdiction, the plaintiff’s jurisdictional allegations are entitled to no presumptive weight, and the
court must often look outside of the complaint.7 In this situation, the court “enjoys broad
authority to order discovery, consider extrinsic evidence, and hold evidentiary hearings in order to
determine its own jurisdiction.”8
The United States’s motion falls in the second category. The United States does not
challenge the sufficiency of Hill’s jurisdictional allegations. Rather, it brings a substantive
challenge to the existence of subject matter jurisdiction. This challenge implicates questions of
fact, including whether a mandatory directive governed CO Martin’s conduct. As a result, this
court has authority to order discovery if necessary to resolve the motion.
B.

FTCA and the Discretionary Function Exception

The United States, as a sovereign, has immunity from suit, except where immunity is

5

Valentin v. Hosp. Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001)

6

Id. (citing cases).

7

Id.

8

Id. Additionally, “[i]n certain situations, the predicate facts can be so inextricably linked
to the merits of the controversy that the district court should ‘defer resolution of the jurisdictional
issue until the time of trial.’” Skwira v. United States, 344 F.3d 64, 72 n.10 (1st Cir. 2003)
(quoting Valentin, 254 F.3d at 364 n.3).
3

waived.9 The FTCA contains a broad waiver of the federal sovereign immunity.10 It subjects the
United States to liability for “negligent acts of government employees acting within the scope of
their employment.”11 “In proper circumstances, prisoners . . . may invoke the FTCA to seek
damages for injuries received while in confinement.”12
The FTCA, however, also contains a number of statutory exceptions to its waiver of
sovereign immunity, such as the discretionary function exception.13 “When a claim is covered by
the discretionary function exception, it must be dismissed for lack of subject matter jurisdiction.”14
The discretionary function exception applies if the government employee’s acts are (1)
discretionary, and (2) “‘based on considerations of public policy.’”15
Under the first prong, acts are discretionary if they “‘involv[e] an element of judgment or
choice.’”16 Acts are not discretionary if a “‘federal statute, regulation, or policy specifically
prescribes a course of action for an employee to follow,’ because ‘the employee has no rightful

9

Id. at 72 (citing United States v. Mitchell, 445 U.S. 535, 538 (1980)).

10

Kelly v. United States, 924 F.2d 355, 359 (1st Cir. 1991).

11

Santana-Rosa v. United States, 335 F.3d 39, 42 (1st Cir. 2003) (citing 28 U.S.C. §

12

Id. (citing United States v. Muniz, 374 U.S. 150, 153 (1963)).

13

28 U.S.C. § 2680(a).

2674).

14

Kelly, 924 F.2d at 359 (citing 28 U.S.C. § 1346(b); Irving v. United States, 909 F.2d
598, 600 (1st Cir. 1990)).
15

United States v. Gaubert, 499 U.S. 315, 322-23 (1991) (quoting Berkovitz v. United
States, 486 U.S. 531, 537 (1988)); see also Santana-Rosa, 335 F.3d at 43.
16

Gaubert, 499 U.S. at 322 (quoting Berkovitz, 486 U.S. at 536).
4

option but to adhere to the directive.’”17 Under the second prong, “a court must then assess
whether the Government’s actions were the kind that the discretionary function exception was
designed to shield – that is, whether the Government’s acts were ‘susceptible to policy
analysis.’”18
The United States argues that the discretionary function exception bars Hill’s claim
because BOP decisions regarding officer allocation and placement in prisons are discretionary and
grounded in public policy considerations. Hill responds that he does not challenge officer
allocation and placement. Rather, he specifically challenges the failure of the officers on duty to
respond to the “help” button and his calls for help. Hill also argues that the following two BOP
program statements mandate officers’ immediate response to inmate assaults:
Program Statement 3000.03 Human Resource Management Manual: [T]he
incumbent is required to shakedown inmates, conduct visual searches of inmate
work and living areas for contraband, and is responsible for immediately
responding to any institutional emergency.19
Program Statement 3420.09(1) Standards for Employee Conduct: (a) Inattention
to duty in a correctional environment can result in escapes, assaults, and other
incidents. Therefore, employees are required to remain fully alert and attentive
during duty hours. (b) Because failure to respond to an emergency may jeopardize
the security of the institution, as well as the lives of staff and inmates, it is
mandatory that employees respond immediately and effectively to all emergency
situations.20
This court cannot determine whether the discretionary function exception applies to Hill’s

17

Id. (quoting Berkovitz, 486 U.S. at 536).

18

Santana-Rosa, 335 F.3d at 43 (quoting Gaubert, 499 U.S. at 325).

19

Def.’s Opp’n Mot. Dismiss 3 (emphasis in original).

20

Def.’s Opp’n Mot. Dismiss 3-4 (emphasis in original).
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claim from the face of the complaint alone.21 At the pleading stage, the court lacks sufficient
information to determine whether the BOP has any mandatory directive for immediate response to
either the “help” button or inmate calls for help. While the United States denies the existence of
such a directive, Hill has provided two plausible options. The significance of these program
statements, however, is ambiguous. The statements do not indicate whether they were binding on
CO Martin or define what constitutes an “emergency.”
Discovery is necessary to determine: (1) the significance of the quoted program
statements, (2) the existence of any other mandatory directives, (3) whether prison staff violated
these directives, and (4) whether prison staff made a discretionary judgment not based on public
policy considerations. After this discovery, the court will be in a better position to determine
whether the discretionary function exception deprives this court of jurisdiction.22
V.

Conclusion
Because this court cannot resolve the issue of subject matter jurisdiction without

discovery, the United States’s Motion to Dismiss [#16] is DENIED WITHOUT PREJUDICE.
AN ORDER HAS ISSUED.
/s/ Joseph L. Tauro
United States District Judge

21

See Palay v. United States, 349 F.3d 418, 429-32 (7th Cir. 2003) (“It remains for his
claim to be fleshed out with evidence before the court can say whether the discretionary function
exception applies.”); Sledge v. United States, 723 F. Supp. 2d 87, 92-98 (D.D.C. 2010).
22

Contrary to the United States’s arguments, Santana-Rosa v. United States, 335 F.3d 39
(1st Cir. 2003) does not require dismissal of Hill’s complaint at this stage. In Santana-Rosa, the
First Circuit did not decide the question relevant to the United States’s motion in this case –
whether any BOP mandatory directive requires corrections officers to immediately respond to the
“help” button or inmate calls for help.
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