SARGENT v. HOLLINGSWORTH et al

Filing 19

OPINION. Signed by Chief Judge Jerome B. Simandle on 12/15/2014. (dmr)(n.m.)

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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:
:
Plaintiff,
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v.
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WARDEN HOLLINGSWORTH, et al.,:
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Defendants.
:
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JOSEPH G. SARGENT,

Civil No. 13-4918 (JBS)

OPINION

APPEARANCES:
Joseph G. Sargent, Plaintiff Pro Se
515 Woodland Road
Pittsburgh, PA 15237
David Vincent Bober, Asst. U.S. Attorney
Office of the United States Attorney
402 East State Street, Suite 430
Trenton, NJ 08608
Attorney for Defendants
SIMANDLE, Chief Judge
Defendants Hollingsworth, United States, Wittenour, and
Zickefoose filed a Motion to Dismiss the Complaint (Docket Item
16) in this civil case commenced by Plaintiff pursuant to the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346. Plaintiff
filed opposition to the motion (Docket Item 17) and a letter
asking that all Defendants to be dismissed from the case, except
for the United States (Docket Item 18). All papers have been

reviewed. For the following reasons, the Court will honor
Plaintiff’s request to dismiss all defendants except the United
States, and the Motion to Dismiss will be granted.
BACKGROUND
Plaintiff submitted this civil complaint while housed at
the Federal Correctional Institution (“FCI”), Fort Dix, New
Jersey, alleging that on June 25, 2012, an inmate tried to
extort and assault him. (Complt., ¶ 5(a)). Plaintiff asserts
that the Unit Manager “negligently failed” to protect him by
refusing to place him in protective custody, and that there was
inadequate supervision by correctional officers in the area of
the assault. (Id.). As a result of the assault, Plaintiff
suffered injuries.
About a week later, on July 3, 2012, Plaintiff was
transferred to the “West Compound” of FCI Fort Dix. Plaintiff
alleges that this transfer was negligent because inmates in the
West Compound knew he was a “snitch.” Plaintiff avers that he
should have been transferred to another prison. (Complt., ¶
5(c)).
On October 14, 2012, Plaintiff wrote in his diary that
members of the “Bloods” gang had threatened to stab him.
According to Plaintiff, prison staff had access to the diary,
and refused to place him in protective custody. Two weeks later,
during Hurricane Sandy, the facility lost power, and Plaintiff

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was attacked during the blackout by “5 masked men.” (Complt., ¶
5(e)). Plaintiff notes that a month earlier during a blackout,
another inmate had been stabbed, inferring that “having only one
correctional officer in a three story housing unit with no power
is negligently insufficient security.” (Id.). Plaintiff suffered
injuries in the blackout attack during Hurricane Sandy. (Id.).
Plaintiff filed an FTCA claim seeking $10,000 in damages
for the two physical assaults at Fort Dix. His claim was denied
by the Bureau of Prisons on May 31, 2013, and this complaint
followed. Summonses were issued, Defendants, in lieu of an
Answer, filed this Motion to Dismiss.
DISCUSSION
Plaintiff asserts that the United States is liable under
the FTCA for their failure to provide an adequate level of
safety for him, as required by 18 U.S.C. § 4042(a), as evidenced
by their decision to house him in the “West Compound” instead of
in protective custody, and by failure to provide proper staffing
and supervision by correctional officers.
The United States has sovereign immunity except where it
consents to be sued. See United States v. Bormes, ––– U.S. ––––,
––––, 133 S. Ct. 12, 16, 184 L. Ed.2d 317 (2012); United States
v. Mitchell, 463 U.S. 206, 212 (1983). In the absence of such a
waiver of immunity, Plaintiff cannot proceed in an action for
damages against the United States. See FDIC v. Meyer, 510 U.S.

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471, 484–87 (1994).
The Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et
seq., constitutes a limited waiver of the sovereign immunity of
the United States. See 28 U.S.C. § 2679(b)(1); White–Squire v.
U.S. Postal Service, 592 F.3d 453, 456 (3d Cir. 2010). The
Federal Tort Claims Act gives a district court exclusive
jurisdiction over civil actions:
[1] against the United States, [2] for money damages,
... [3] for injury or loss of property, ... [4] caused
by the negligent or wrongful act or omission of any
employee of the Government [5] while acting within the
scope of his office or employment, [6] 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.
Deutsch v. United States, 67 F.3d 1080, 1091 (3d Cir. 1995)
(quoting 28 U.S.C. § 1346(b)); see also CNA v. United States,
535 F.3d 132, 141 (3d Cir. 2008) (quoting FDIC v. Meyer, 510
U.S. 471, 477 (1994)); United States v. Muniz, 374 U.S. 150
(1963).
Constitutional violations are not cognizable under the
FTCA; instead, claims under the FTCA are governed by the
substantive tort law of the state where the acts or omissions
occurred, here, New Jersey. See FDIC v. Meyer, 510 U.S. at 477–
78; Richards v. United States, 369 U.S. 1, 6 (1962); Webb v.
Desan, 250 F. App'x 468 (3d Cir. 2007); Ciccarone v. United
States, 486 F.2d 253, 257 (3d Cir. 1973); Shuster v. Cabanas,

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Civil Action No. 11–1764, 2013 WL 3783891, *4 (D.N.J. July 19,
2013).1
The FTCA, however, does not encompass all torts committed
by federal government employees. Rather, the “discretionary
function” exception provides that the provisions of the FTCA
shall not apply to any claim “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.” 28 U.S.C. § 2680(a). To determine whether
the discretionary function exception applies, a court must
determine (1) “whether the act involves an ‘element of judgment
or choice,” and (2), if so, “‘whether that judgment is of the
kind that the discretionary function exception was designed to
shield.’” Mitchell v. United States, 225 F.3d 361 (3d Cir. 2000)
(quoting United States v. Gaubert, 499 U.S. 315, 322 (1991)).
More specifically, with respect to the second requirement, the
discretionary function exception “protects only governmental
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Thus, as an initial matter, Plaintiff would need to show
the typical elements of the tort of negligence under New Jersey
law: (1) that the defendant owed a duty of care to the
plaintiff, (2) that the defendant breached that duty, (3) that
the defendant's breach caused the plaintiff's injuries, and (4)
that the plaintiff suffered damages. See generally Natale v.
Camden County Correctional Facility, 318 F.3d 575, 579 and n.3
(3d Cir. 2003); Weinberg v. Dinger, 106 N.J. 469, 484, 524 A.2d
366 (1987).

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actions and decisions based on considerations of public policy.”
Berkovitz v. United States, 486 U.S. 531, 537 (1988). See
generally S.R.P. ex rel. Abunabba v. United States, 676 F.3d 329
(3d Cir. 2012). “It is presumed that an agent’s acts are
grounded in policy when exercising discretion, but this
presumption can be rebutted.”

Gray v. United States, 486 F.

App’x 975, 977 (3d Cir. 2012) (citation omitted).
While federal law requires the Bureau of Prisons to
“provide for the safekeeping, care, and subsistence” of all
persons within its custody, 18 U.S.C. § 4042(a)(2), the statute
leaves the implementation of these duties to BOP officials'
discretion. See Cohen v. United States, 151 F.3d 1338, 1342
(11th Cir. 1998), cited in Thrower v. United States, 528 F.
App'x 108, 111 (3d Cir. 2013) and Rinaldi v. United States, 460
F. App'x 80, 81–82 (3d Cir. 2012).
Here, the conduct at issue is Defendants’ failure to
respond to Plaintiff’s reports of threats (in his diary) and his
preference for protective custody or transfer.

Plaintiff has

pointed to no federal statute, regulation, or policy prescribing
a specific course of action to be followed when a prisoner
reports threats from another inmate.

Accordingly, the

discretionary function exception applies, and the Motion to
Dismiss for lack of jurisdiction will be granted.

Cf., e.g.,

Thrower v. United States, 528 F. App’x 108, 111 (3d Cir.

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2013)(finding that “a judgment as to the best way to protect
prisoners from attack by others ‘is of the kind that the
discretionary function exception was designed to shield.’”);
Donaldson v. United States, 281 F. App’x 75, 77-78 (3d Cir.
2008)(same, and adding “courts of appeals have applied the
discretionary function exception to bar an inmate’s claims for
injuries he received while incarcerated”); Smith v. United
States, Civil Action No. 08-2806, 2009 WL 2059421 (D.N.J. July
7, 2009)(same, and adding “no federal statute, regulation, or
policy required FCI Fairton staff to take a particular course of
action to ensure Plaintiff’s safety from attacks by other
inmates. . . . the placement of officers throughout the prison
was a matter of [the Warden’s] judgment.”)
CONCLUSION
For the reasons set forth above, Defendants’ Motion to
Dismiss will be granted and the Complaint will be dismissed. An
appropriate Order follows.

s/ Jerome B. Simandle
JEROME B. SIMANDLE, Chief Judge
United States District Court
Dated:

December 15, 2014

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