Hall v. United States of America et al

Filing 63

ORDER adopting Magistrate Judge's 56 Report and Recommendation; granting Defendants United States of America and Melanie Rube's 29 Motion to Dismiss and/or for Summary Judgment; denying Plaintiff's 38 Motion for Cross Summary Judgment; and dismissing Plaintiff's claims against Defendants United States of America and Melanie Rube. Signed by District Judge Halil S. Ozerden on September 7, 2018. (ENW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
KENTORRE D. HALL
v.
UNITED STATES OF AMERICA, et al.

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PLAINTIFF
Civil No. 1:17CV42-HSO-JCG
DEFENDANTS

ORDER ADOPTING MAGISTRATE JUDGE’S [56] REPORT AND
RECOMMENDATION; GRANTING DEFENDANTS UNITED STATES
OF AMERICA AND MELANIE RUBE’S [29] MOTION TO DISMISS
AND/OR FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S
[38] MOTION FOR CROSS SUMMARY JUDGMENT; AND
DISMISSING PLAINTIFF’S CLAIMS AGAINST DEFENDANTS
UNITED STATES OF AMERICA AND MELANIE RUBE
This matter comes before the Court on the Report and Recommendation [56]
of United States Magistrate Judge John C. Gargiulo entered in this case on July 25,
2018, the Motion to Dismiss and/or for Summary Judgment [29] filed by Defendants
United States of America and Melanie Rube on September 13, 2017, and the Motion
for Cross Summary Judgment [38] filed by Plaintiff Kentorre D. Hall on October 20,
2017. Based upon a review of the pleadings and relevant legal authority, the
Magistrate Judge recommended that Defendants’ Motion to Dismiss and/or for
Summary Judgment [29] be granted, and that Plaintiff’s Motion for Cross Summary
Judgment [38] be denied. R. & R. [56] at 14.
For the reasons that follow, the Court finds that the Report and
Recommendation [56] should be adopted in its entirety as the finding of this Court.

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Defendants’ Motion to Dismiss and/or for Summary Judgment [29] should be
granted, and Plaintiff’s Motion for Cross Summary Judgment [38] should be denied.
Plaintiff’s claims against Defendant United States of America will be dismissed
without prejudice for lack of subject-matter jurisdiction, and his claims against
Defendant Melanie Rube will be dismissed with prejudice. Plaintiff’s claims against

the remaining Defendants Sheriff of Pearl River County, Mississippi; David
“Unknown,” Nursing Supervisor; Pearl River County, Mississippi; David Kilgore;
and John Does will proceed.
I. BACKGROUND
A.

Factual Background
At all relevant times, Plaintiff Kentorre D. Hall was a pretrial detainee

incarcerated at the Pearl River County Justice Center (“PRCJC”) in Poplarville,
Mississippi, while awaiting trial on federal charges. While in the custody of the

United States Marshal, Plaintiff, who is a quadriplegic, was housed at PRCJC
pursuant to an Intergovernmental Agreement (“IGA”) for detention of federal
prisoners. See Decl. of Melanie Rube [29-1] at 2; see also IGA [29-1] at 6-16.
Defendants have presented the Declaration of Defendant Melanie Rube
(“Rube”), who was the Supervisory Deputy United States Marshal for the Southern
District of Mississippi at the time. According to the Declaration, the Bureau of
Alcohol, Tobacco and Firearms [sic] (“ATF”) contacted Rube several months before
Plaintiff’s arrest to inform her of Plaintiff’s medical issues in the event he should
become a pretrial detainee. Decl. of Melanie Rube [29-1] at 2. Rube avers that, in
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an effort to identify a facility that could address Plaintiff’s medical needs, she
contacted local jails with which the United States Marshals Service (“USMS”) had
IGAs in place and consulted medical personnel at the Office of Interagency Medical
Services (“OIMS”), Prisoner Operations Division, at USMS Headquarters for
guidance. Id. Based upon this research and consultation, Rube states that the
USMS determined that the PRCJC could accommodate Plaintiff’s medical needs in
the event he became a pretrial detainee. Id.
ATF agents arrested Plaintiff on December 17, 2013, and brought him to the
USMS office, after which he was transported to PRCJC. Plaintiff complains about
the purported inadequate medical care and hygiene assistance he received at
PRCJC and about the insertion of a particular type of catheter. See Compl. [1] at 811. As a result of the foregoing, Plaintiff claims that he has suffered personal
injuries including ulcers, pressure wounds, and urinary tract infections. See id.
Plaintiff has attached to his Complaint medical records [1-2], which he maintains
support his claims.
At some point, Rube began discussing with OIMS the possibility of moving
Plaintiff to the Columbia Care Center, known as “Just Care,” in Columbia, South
Carolina. Decl. of Melanie Rube [29-1] at 4. Just Care is apparently a long-term
care facility for detainees that provides enhanced nursing and medical treatment
for prisoners and detainees. Id. Rube participated in a conference call with the
United States District Judge assigned to Plaintiff’s criminal case, the assigned
Assistant United States Attorney, and Plaintiff’s criminal defense attorney, and all
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agreed that Just Care would be better able to handle Plaintiff’s medical needs while
he awaited trial. Id. Plaintiff was transported to Just Care on or about March 21,
2014, but was returned to PRCJC on August 11, 2014, in order to prepare for and
attend his criminal trial. Id.
B.

Procedural History
Plaintiff executed a pro se Complaint [1] on January 31, 2017, which was

filed in this Court on February 24, 2017. The Complaint advances claims against
Rube in her individual capacity for alleged infliction of cruel and unusual
punishment in violation of the Eighth Amendment to the United States
Constitution pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S.
388 (1971). The Complaint also raises claims against the United States under the
Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. (“FTCA”), the Rehabilitation Act,
29 U.S.C. § 794, the Equal Protection Clause of the Fourteenth Amendment, and
the Due Process Clause of the Fifth Amendment. Compl. [1] at 12-13. All of
Plaintiff’s claims arise out of the actions taken by individuals prior to Plaintiff’s
transport to Just Care in March 2014. See id. at 7-11. Plaintiff asserts claims
against other Defendants as well, but those are not before the Court at this time.
On September 13, 2017, the United States and Rube (collectively,
“Defendants”) filed a Motion to Dismiss and/or for Summary Judgment [29],
arguing among other things that Plaintiff’s claims against the United States should
be dismissed for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(1). See Defs.’ Mem. [30] at 11-18. Defendants maintain that the
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discretionary function and independent contractor exceptions to the waiver of
sovereign immunity under the FTCA govern the outcome here. See id. at 12-18.
Defendants argue that the Rehabilitation Act claims should be dismissed because
Congress has not waived sovereign immunity for damages with regard to programs
or activities conducted by an executive agency. See id. at 2 n.3 (citing Lane v. Pena,
518 U.S. 187, 193-94 (1996)). As for Plaintiff’s claims against Rube, Defendants
take the position that these claims should be dismissed because the statute of
limitations bars them, because Plaintiff has not shown that Rube exhibited
deliberate indifference, and because Rube is entitled to qualified immunity. See
Defs.’ Mem. [30] at 7-11.
On October 20, 2017, Plaintiff filed a Response [37] in opposition to
Defendants’ Motion [29], as well as his own Motion for Cross Summary Judgment
[38]. Plaintiff’s Brief [40] addresses exhaustion of the administrative remedy
procedure, which is not at issue in Defendants’ Motion [29]. See Pl.’s Br. [40] at 1-4.
Plaintiff also cites Mississippi case law and statutes related to latent injuries to
argue that his claims did not accrue until he retrieved his medical records in March
2015, making his Complaint timely under Mississippi’s catchall three-year statute
of limitations for tort claims. Id. at 4; see Miss. Code Ann. § 15-1-49(1). Plaintiff
also relies on the Eighth Circuit Court of Appeals’ “continuous treatment doctrine”

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in support of his position that his claim is timely. Id. at 5 (citing McCullough v.
United States, 607 F.3d 1355 (11th Cir. 2010)).1
Defendants have filed a Rebuttal [44] in support of their Motion [29], and
Plaintiff has filed an unauthorized Supplement [49] and Sur-Reply [50]. Plaintiff
presents Affidavits [49-1], [49-2] from his mother and grandmother, and argues that
compensatory damages are available for his Rehabilitation Act claims, that his
claims against Rube were tolled, and that the discretionary function exception does
not bar his FTCA claims. See Pl.’s Sur-Reply [37] at 1-4.
On July 25, 2018, the Magistrate Judge entered a Report and
Recommendation [56], recommending that Defendants’ Motion to Dismiss and/or for
Summary Judgment [29] be granted, and that Plaintiff’s Motion for Cross Summary
Judgment [38] be denied. R. & R. [56] at 14. The Magistrate Judge determined
that Plaintiff’s Bivens claim against Rube fails for three reasons: (1) the statute of
limitations expired prior to the filing of the Complaint; (2) Plaintiff has not shown
that Rube was deliberately indifferent; and (3) Rube is entitled to qualified
immunity. Id. at 5-10. As for the FTCA claim against the United States, the
Magistrate Judge found that both the independent contractor exception and the

While Plaintiff cites McCullough as a case from the United States Court of
Appeals for the Fifth Circuit, it is actually an Eleventh Circuit case. See Pls.’ Mem. [37] at
5. In McCullough, the Eleventh Circuit noted that “neither the Eleventh Circuit nor the
former Fifth Circuit has specifically adopted the continuous treatment doctrine,” and the
court “decline[d] to do so here.” McCullough, 607 F.3d at 1361; but see Wehrman v. United
States, 830 F.2d 1480, 1483 (8th Cir. 1987) (“Under the continuing treatment doctrine, a
plaintiff’s cause of action does not accrue until the tortious continuing treatment ends,
even if the plaintiff is aware of the facts constituting negligence before that time.”).
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discretionary function exception to the waiver of sovereign immunity applied, such
that the United States’ sovereign immunity had not been waived. Id. at 10-12.
With respect to Plaintiff’s Rehabilitation Act claim against the United States,
the Magistrate Judge concluded that Congress has not waived the Government’s
sovereign immunity from monetary damages claims brought under Section 504 of
the Rehabilitation Act, such that Plaintiff’s claims under that statute, which only
seek monetary damages, should be dismissed. Id. at 13. Finally, as for Plaintiff’s
equal protection and due process claims, the Magistrate Judge determined that
these claims were subsumed by the other claims addressed above, and even if not,
Plaintiff had failed to sufficiently allege a denial of equal protection or due process
and failed to state a claim upon which relief could be granted. Id. at 13-14.
The Report and Recommendation [56] was mailed to Plaintiff on July 25,
2018, via certified mail. Any objection to the Magistrate Judge’s Report and
Recommendation [56] was due within fourteen (14) days of service. L.U. Civ. R.
72(a)(3). To date, Plaintiff has not filed any objection to the Magistrate Judge’s
Report and Recommendation [56], and the time for doing so has passed.
II. DISCUSSION
Where no party has objected to a Magistrate Judge’s report and
recommendation, the Court need not conduct a de novo review of it. 28 U.S.C. §
636(b)(1) (“a judge of the court shall make a de novo determination of those portions
of the report or specified proposed findings and recommendations to which objection
is made”). In such cases, the Court applies the “clearly erroneous, abuse of
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discretion and contrary to law” standard of review. United States v. Wilson, 864
F.2d 1219, 1221 (5th Cir. 1989).
Having conducted the required review, the Court concludes that the
Magistrate Judge’s findings are not clearly erroneous, nor are they an abuse of
discretion or contrary to law. The Court will adopt the Magistrate Judge’s Report
and Recommendation [56] as the opinion of this Court, will grant Defendants’
Motion to Dismiss and/or for Summary Judgment [29], and will deny Plaintiff’s
Motion for Cross Summary Judgment [38]. The Court will dismiss Plaintiff’s claims
against Defendant United States of America without prejudice for lack of subjectmatter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), and will
dismiss Plaintiff’s claims against Defendant Melanie Rube with prejudice pursuant
to Rule 56(a).

III. CONCLUSION
IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Report and
Recommendation [56] of United States Magistrate Judge John C. Gargiulo entered
in this case on July 25, 2018, is ADOPTED as the finding of this Court.

IT IS, FURTHER, ORDERED AND ADJUDGED that, the Motion to
Dismiss and/or for Summary Judgment [29] filed by Defendants United States of
America and Melanie Rube on September 13, 2017, is GRANTED.

IT IS, FURTHER, ORDERED AND ADJUDGED that, the Motion for
Cross Summary Judgment [38] filed by Plaintiff Kentorre D. Hall on October 20,
2017, is DENIED.

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IT IS, FURTHER, ORDERED AND ADJUDGED that, Plaintiff’s claims
against Defendant United States of America are DISMISSED WITHOUT
PREJUDICE for lack of subject-matter jurisdiction, and Plaintiff’s claims against
Defendant Melanie Rube are DISMISSED WITH PREJUDICE. Plaintiff’s claims
against the remaining Defendants Sheriff of Pearl River County, Mississippi; David
“Unknown,” Nursing Supervisor; Pearl River County, Mississippi; David Kilgore;
and John Does will proceed.
SO ORDERED AND ADJUDGED, this the 7th day of September, 2018.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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