DOTY v. UNITED STATES OF AMERICA et al
OPINION FILED. Signed by Judge Noel L. Hillman on 6/28/17. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA, et al., :
Civ. No. 15-3016 (NLH)
Robert M. Miele, Esq.
Burke, Miele & Golden, LLP
40 Matthews St.
P.O. Box 216
Goshen, NY 10924,
Counsel for Plaintiff
David Vincent Bober, Esq.
Office of the United States Attorney
402 E. State Street
Trenton, NJ 08608
Counsel for Defendants
HILLMAN, District Judge
Plaintiff Alfred Doty, an inmate currently confined at the
Federal Correctional Institution (“FCI”) in Fort Dix, New
Jersey, filed this civil rights action pursuant to 42 U.S.C. §
1983 and paid the filing fee. (ECF No. 1.)
On August 3, 2015,
Plaintiff filed an Amended Complaint. (ECF No. 8.)
16, 2015, Defendants filed a Motion to Dismiss in lieu of an
Answer. (ECF No. 20.)
On June 15, 2016, the Court granted
Defendants’ motion and dismissed the amended complaint without
prejudice in its entirety.
(ECF Nos. 29, 30.)
allowed Plaintiff to file a second amended complaint (“SAC”),
which he did on July 29, 2016.
(ECF Nos. 31.)
conducted its sua sponte screening of the SAC and permitted it
(ECF No. 32.)
In lieu of an answer, Defendants
filed the instant Motion to Dismiss (ECF No. 37), Plaintiff
filed Opposition (ECF Nos. 40-42), and Defendants filed a Reply
(ECF No. 44).
The Court has considered the submissions of the
parties and decides this matter without oral argument pursuant
to Federal Rule of Civil Procedure 78.
For the reasons
discussed below, the Court will grant the Motion in part and
deny it in part.
In the SAC, Plaintiff alleges that on and before August 24,
2013, he was incarcerated at FCI Fort Dix and housed in Unit
Plaintiff states that another inmate at FCI Fort Dix
(“Unknown Inmate”) was confined to a different housing unit at
Despite being housed in a different unit, Plaintiff
states that on August 24, 2013, Unknown Inmate entered Unit 5711
and assaulted Plaintiff.
Plaintiff states that he suffered
significant injuries and he alleges that the assault occurred as
a direct and proximate result of the negligence of the
Specifically, Plaintiff asserts that “the Fort Dix
Defendants breached their duty to keep Plaintiff reasonably safe
and protect him from assault by Unknown Inmate by allowing
Unknown Inmate to gain unauthorized access into Unit 5711 and
(SAC ¶ 29.)
Plaintiff alleges that
Defendants have a mandatory obligation, pursuant to the
“Institution Supplement on Inmate Accountability,” to “account
for inmates within their control, and account for inmates that
are not where they should be,” which was violated on August 24,
(Id. at ¶¶ 30; 31.)
Plaintiff further asserts that Defendants acted with
deliberate indifference to Plaintiff’s health and safety and, in
doing so, violated his Eighth Amendment rights.
Plaintiff contends that Defendants are liable to him for their
failure to train, supervise, control and discipline the
individual correctional officers.
Plaintiff seeks actual and
exemplary damages in the amount of $5,000,000.00.
Federal Tort Claims Act1
In their Motion, Defendants argue that this Court lacks subject
matter jurisdiction over Plaintiff’s Federal Tort Claim. (Mot.
15, ECF No. 37-1.) The Court discussed that standard at length
in its previous Opinion and will not re-state it here. Suffice
it to say, the Court previously determined that Defendants have
asserted a facial attack pursuant to FED. R. CIV. P. 12(b)(1),
The United States has sovereign immunity except where it
consents to be sued. United States v. Bormes, 133 S. Ct. 12, 16,
(2012); United States v. Mitchell, 463 U.S. 206, 212 (1983).
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. 471, 484–87 (1994).
The Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2401,
2671, et seq., constitutes a limited waiver of the sovereign
immunity of the United States. 28 U.S.C. § 2679(b)(1); White–
Squire v. United States Postal Service, 592 F.3d 453, 456 (3d
The Federal Tort Claims Act gives a district court
exclusive jurisdiction over civil actions:
 against the United States,  for money damages,
...  for injury or loss of property, ...  caused
by the negligent or wrongful act or omission of any
employee of the Government  while acting within the
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
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,
which requires that the Court “review only whether the
allegations on the face of the complaint, taken as true, allege
facts sufficient to invoke the jurisdiction of the district
court . . . a facial attack calls for a district court to apply
the same standard of review it would use in considering a motion
to dismiss under Rule 12(b)(6).” (June 15, 2016 Opinion 7-8,
ECF No. 29) (internal citations omitted).
535 F.3d 132, 141 (3d Cir. 2008) (quoting FDIC v. Meyer, 510
U.S. at 477); United States v. Muniz, 374 U.S. 150 (1963).
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
actions and decisions based on considerations of public policy.”
Berkovitz v. United States, 486 U.S. 531, 537, 108 S. Ct. 1954,
100 L.Ed.2d 531 (1988). See generally S.R.P. ex rel. Abunabba v.
United States, 676 F.3d 329 (3d Cir. 2012).
In its previous dismissal Opinion, the Court found that
“although Plaintiff alleged that Defendants were negligent by:
(1) leaving the front door unlocked in between ten minute moves;
(2) failing to monitor the housing unit while the door was
unlocked; (3) failing to have sufficient guards stations in and
near the unlocked door; and (4) failing to confine Unknown
Inmate, neither the Amended Complaint, nor any of Plaintiff’s
subsequent filings, refers to any federal statute, regulation,
or policy requiring the BOP to take these specific courses of
The Court further found that
Plaintiff’s reliance on the Inmate Handbook policy was misplaced
because that policy precludes inmates from engaging in certain
behavior, as opposed to affirmatively prescribing a particular
action on the part of BOP employees.
In response to the Court’s finding that there was no
federal statute, regulation or policy which required Defendants
to undertake the actions identified by Plaintiff, in his SAC,
Plaintiff relies on a provision of the Bureau of Prisons
Institution Supplement on Inmate Accountability Number FTD
5500.12D which states:
Staff members will be required to account for
each inmate in his/her area of responsibility.
Staff will check their Detail Crew Kits to
ensure accountability of all inmates under
their supervision. All inmates will be
challenged to determine if they are authorized
to be in that area or if they are absent from
an area or detail without authorization.
(SAC ¶ 18.)
However, attached to their Motion to Dismiss, Defendants
provide the entire Institution Supplement, which, both parties
acknowledge, establishes that that provision is applicable only
during lockdown accountability checks.
(Mot., Ex. 1, ECF No. 1-
Because the assault did not occur during a lockdown, it
appears this policy could not create a mandatory duty with which
Defendants failed to comply.
Plaintiff appears to also rely on two other provisions of the
Institution Supplement for the proposition that the discretionary
exception does not apply: (1) employees are “responsible for the
accountability of all inmates in their assigned areas, details,
responsibility with regard to inmate accountability.”
However, these provisions do not “specifically prescribe
a course of action for an employee to follow....” Mitchell, 225
F.3d at 363.
Instead, they generally describe the role of the
prison employees when supervising the inmates and do not create a
Finally, Plaintiff again argues that the Inmate Handbook
created a mandatory duty.
That argument was already considered
and rejected by the Court in its previous Opinion and the Court
will not re-address it here.
Therefore, because Plaintiff has failed to point to a “federal
particular course of action to ensure [Plaintiff’s] safety from
attacks by other inmates” and for the reasons stated in the Court’s
June 15th Opinion and Order, his FTCA claim will be dismissed
As stated in the Court’s prior Opinion:
In Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U.S. 388(1971), the Supreme Court
held that a violation of the Fourth Amendment
by a federal agent acting under color of his
authority gives rise to a cause of action
against that agent, individually, for damages.
The Supreme Court has also implied damages
remedies directly under the Eighth Amendment,
see Carlson v. Green, 446 U.S. 14, 100 S. Ct.
1468, 64 L.Ed.2d 15 (1980), and the Fifth
To the extent Plaintiff is attempting to amend the Complaint to
include allegations regarding “post orders” or a “negligent
guard theory” through his brief (Opp’n 19, 23), such an attempt
is inappropriate. See Swift v. Pandey, No. 13-649, 2013 WL
6022093, at *2 (D.N.J. Nov. 13, 2013) (citing Pennsylvania ex
rel. v. Zimmerman v. Pepsico, 836 F.2d 173 (3d Cir.1988) (“It is
axiomatic that the complaint may not be amended by the briefs in
opposition to a motion to dismiss”)). Plaintiff must seek
permission to file an amended complaint to include these factual
Defendants seek dismissal of this claim pursuant to Federal
Rule of Civil Procedure 12(b)(6). The Court also discussed the
standard for 12(b)(6) motions at length in its prior Opinion and
will not restate it at length here. In short, when considering
a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), a court must accept all well-pleaded allegations in
the complaint as true and view them in the light most favorable
to the plaintiff. Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir.
2005). A pleading is sufficient if it contains “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” FED. R. CIV. P. 8(a)(2).
Amendment, see Davis v. Passman, 442 U.S. 228,
99 S. Ct. 2264, 60 L.Ed.2d 846 (1979). But
“the absence of statutory relief for a
constitutional violation does not necessarily
mean that courts should create a damages
remedy against the officer responsible for the
violation.” Schreiber v. Mastrogiovanni, 214
F.3d 148, 152 (3d Cir. 2000) (citing Schweiker
v. Chilicky, 487 U.S. 412, 108 S. Ct. 2460,
101 L.Ed.2d 370 (1988)).
counterpart to § 1983 actions brought against
constitutional or statutory rights.
Egervary v. Young, 366 F.3d 238, 246 (3d Cir.
2004), cert. denied, 543 U.S. 1049, 125 S. Ct.
868, 160 L.Ed.2d 769 (2005).
designed to provide redress for constitutional
violations. Thus, while the two bodies of law
are not “precisely parallel”, there is a
“general trend” to incorporate § 1983 law into
Bivens suits. See Chin v. Bowen, 833 F.2d 21,
24 (2d Cir. 1987).
In order to state a claim under Bivens, a
claimant must show: (1) a deprivation of a
right secured by the Constitution and laws of
deprivation of the right was caused by an
official acting under color of federal law.
See Couden v. Duffy, 446 F.3d 483, 491 (3d
Cir. 2006) (stating that under Section 1983
“an individual may bring suit for damages
against any person who, acting under color of
state law, deprives another individual of any
rights, privileges, or immunities secured by
the United States Constitution or federal
law,” and that Bivens held that a parallel
right exists against federal officials); see
also Corr. Servs. Corp. v. Malesko, 534 U.S.
61, 66, 122 S. Ct. 515, 518, 151 L. Ed. 2d 456
Under the Eighth Amendment, prison officials
have a duty to provide humane conditions of
safety. Farmer v. Brennan, 511 U.S. 825, 832,
114 S. Ct. 1970, 128 L.Ed.2d 811 (1994); Young
v. Quinlan, 960 F.2d 351, 364 (3d Cir. 1992).
Accordingly, prison officials must take
reasonable measures “to protect prisoners from
violence at the hands of other prisoners.”
Farmer, 511 U.S. at 833 (internal quotations
“Being violently assaulted in
prison is simply ‘not part of the penalty that
criminal offenders pay for their offenses
against society.’” Id. at 834 (quoting Rhodes
v. Chapman, 452 U.S. 337, 347, 101 S. Ct. 2392,
69 L.Ed.2d 59 (1981)).
To successfully state a failure-to-protect
claim for violation of the Eighth Amendment,
as always, an inmate must satisfy both the
objective and subjective components of such a
claim. The inmate must allege a deprivation
which was “sufficiently serious,” and that, in
their actions or omissions, prison officials
exhibited “deliberate indifference” to the
inmate’s health or safety. See Farmer, 511
U.S. at 834; Wilson v. Seiter, 501 U.S. 294,
305, 111 S. Ct. 2321, 115 L.Ed.2d 271 (1991);
Beers–Capitol v. Whetzel, 256 F.3d 120, 125
(3d Cir. 2001); Nami v. Fauver, 82 F.3d 63, 67
(3d Cir. 1996).
In the context of a failure-to-protect claim,
the inmate must show that he is “incarcerated
under conditions posing a substantial risk of
harm,” Farmer, 511 U.S. at 833, and that
prison officials knew of and disregarded the
excessive risk to inmate safety, id. at 837.
“A pervasive risk of harm may not ordinarily
be shown by pointing to a single incident or
isolated incidents, but it may be established
by much less than proof of a reign of violence
and terror.” Riley v. Jeffes, 777 F.2d 143,
147 (3d Cir. 1985). Deliberate indifference
is more than a mere lack of ordinary due care;
however, it is a state of mind equivalent to
a reckless disregard of a known risk of harm.
Farmer, 511 U.S. at 834. That is, not only
must a prison official be “aware of facts from
which the inference could be drawn that a
substantial risk of serious harm exists,” but
the official “must also draw the inference.”
Farmer, 511 U.S. at 837. “Whether ... prison
official[s] had the requisite knowledge of a
substantial risk is a question of fact subject
to demonstration in the usual ways, including
inference from circumstantial evidence, and a
fact finder may conclude that ... prison
official[s] knew of a substantial risk from
the very fact that the risk was obvious.”
Farmer, 511 U.S. at 842.
(June 15, 2016 Opinion 16-20.)
1. Defendant Bazydlo
With regard to Defendant Bazydlo, Defendants argue that the
SAC fails to allege sufficient facts to suggest that he had
actual knowledge of an elevated risk in advance of the attack.
They further argue that Plaintiff fails to allege
that he put the Defendants on notice of a known risk from a
In his SAC, Plaintiff alleges that on August 24, 2013, he
informed Defendant Bazydlo that “inmates who were assigned to
other housing units were planning on coming to Unit 5711 and
that he should do a walk through of Unit 5711.”
(SAC ¶ 21.)
After he spoke to Defendant Bazydlo, Plaintiff was assaulted in
the bathroom by Unknown Inmate.
(Id. ¶ 22.)
Bazydlo discovered Plaintiff after the assault and saw his
injuries, he stated to another officer that he “wondered if this
had happened as retaliation for Plaintiff reporting to him
unauthorized inmates in Unit 5711.”
(Id. ¶ 23.)
While the Court recognizes that Plaintiff did not inform
Defendant Bazydlo that Unknown Inmate was planning to come to
Unit 5711 or even that there was any threat from the inmates who
were planning to come, at this early motion to dismiss juncture,
the Court finds that Defendant Bazydlo’s statement to the other
officer after the assault could suggest that he was aware of a
risk to Plaintiff based on his reporting the unauthorized
inmates and was deliberately indifferent to that risk of harm at
the hands of the unauthorized inmates.
See Farmer, 511 U.S. at
As such, Defendants’ motion to dismiss against
Defendant Bazydlo is denied.
Defendants Nevins and Hollingsworth
As acknowledged by both parties, supervisory liability is
available only if the supervisor (1) “with deliberate
indifference to the consequences, established and maintained a
policy, practice or custom which directly caused [the]
constitutional harm,” or (2) “participated in violating the
plaintiff's rights, directed others to violate them, or, as the
person in charge, had knowledge of and acquiesced in the
subordinate's unconstitutional conduct.”
Dinote v. Danberg, 601
F. App'x 127, 131 (3d Cir. 2015).
In their Motion to Dismiss, Defendants argue that Plaintiff
fails to make any specific factual allegations of personal
involvement against Defendants Nevins and Hollingsworth and
impermissibly relies on a theory of respondeat superior.
However, in his SAC, Plaintiff alleges that Defendant Nevins:
(1) had a policy in place to leave the front door to Unit 5711
unlocked in between ten minute moves; (2) had a policy in place
whereby they failed to monitor the only door with ingress and
egress into Unit 5711 during the ten minute moves; (3) failed to
monitor the door on August 24, 2013 and allowed Plaintiff’s
attacker to gain access; (4) failed to develop and implement
adequate safety and security procedures to prevent Unknown
Inmate from gaining unauthorized access to Unit 5711; (5) failed
to adequately train Defendant Bazydlo to keep the door to Unit
5711 locked and/or monitor the door during ten minute moves; (6)
failed to have sufficient guards stationed near the door to Unit
5711; and (7) failed to properly confine Unknown Inmate.
Similarly, Plaintiff alleges that Defendant Hollingsworth:
(1) failed to develop and implement adequate safety and security
procedures to prevent Unknown Inmate from gaining unauthorized
access to Unit 5711; (2) failed to adequately train Defendant
Nevins to keep the door to Unit 5711 locked and/or monitor the
door during ten minute moves; (3) failed to have sufficient
guards stationed near the door to Unit 5711; and (4) failed to
properly confine Unknown Inmate.
(SAC ¶ 26.)
Certainly, Plaintiff does make factual allegations against
Defendants Nevins and Hollingsworth which extend beyond
respondeat superior and which relate to their role in policymaking.
As a result, Defendants’ Motion to Dismiss the claims
against Defendants Nevins and Hollingsworth is denied.
Defendants argue that they are entitled to qualified
“Qualified immunity shields government officials from
civil damages liability unless the official violated a statutory
or constitutional right that was clearly established at the time
of the challenged conduct.” Reichle v. Howards, 566 U.S. 658,
132 S. Ct. 2088, 2093 (2012).
In order to determine whether a
government official is entitled to qualified immunity, two
questions are to be asked: (1) has the plaintiff alleged or
shown a violation of a constitutional right, and (2) is the
right at issue “clearly established” at the time of the
defendant's alleged misconduct.
223, 236 (2009).
Pearson v. Callahan, 555 U.S.
Courts are “permitted to exercise their sound
discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first.” Id.
It is the
defendant's burden to establish entitlement to qualified
immunity. Harrison v. City of Atl. City, No. 11-6292, 2017 WL
2256961, at *4 (D.N.J. May 23, 2017) (citing Kopec v. Tate, 361
F.3d 772 (3d Cir. 2004); Muth v. Woodring, 666 F. App'x 137, 139
(3d Cir. 2016)
Defendants discuss only the “clearly established” prong of
the qualified immunity test.
Relying on the Third Circuit’s
holding in Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633 (3d
Cir. 2015), Defendants argue that the relevant question is
whether at the time of the alleged assault, was it “clearly
established” that correctional officers violate the Eighth
Amendment by implementing FCI Ft. Dix’s security policies, which
allowed for housing units to remain unlocked, and for inmate
movements during ten minute moves.
framing of the issue fails to consider the facts discussed
Specifically, Plaintiff alleges that he informed
Defendant Bazydlo that other inmates were planning to come to
the Unit; that after he informed Defendant Bazydlo about the
other inmates, he was assaulted by one of the other inmates; and
after the assault, Defendant Bazydlo surmised as to whether the
assault was based on Plaintiff’s informing him about the
Because Defendants did not consider these
facts when delineating the relevant “clearly established” right,
their request for qualified immunity is denied without prejudice
at this time.
For the reasons set forth above, Defendants’ Motion to
Dismiss (ECF No. 37) will be GRANTED as it relates to the
Federal Tort Claims Act claim and DENIED as it relates to the
An appropriate Order follows.
s/ Noel L. Hillman
NOEL L. HILLMAN
United States District Judge
Dated: June 28, 2017
At Camden, New Jersey
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