SCHMIDT v. FEDERAL CORRECTIONAL INSTITUTION, FORT DIX et al
Filing
47
MEMORANDUM OPINION. Signed by Judge Jerome B. Simandle on 9/26/2018. (rtm, )
IN THE UNITED STATES DISTRICT
FOR THE DISTRICT OF NEW JERSEY
STEVEN SCHMIDT,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
v.
Civil Action
No. 15-3789 (JBS-KMW)
FEDERAL CORRECTIONAL
INSTITUTION, FORT DIX, et
al.,
MEMORANDUM
OPINION
Defendants.
SIMANDLE, District Judge:
Plaintiff Steven Schmidt (hereinafter “Plaintiff”) brings
this negligence action against Defendants Federal Correctional
Institution, Fort Dix (hereinafter “FCI Fort Dix”), the United
States of America, Anthony Hopson, and John Does 1-20 (fictious
names) as a result of injuries sustained by Plaintiff while he
was making a delivery to FCI Fort Dix. (Amended Complaint
[Docket Item 16].) This matter comes before the Court by way of
a motion filed by Defendants FCI Fort Dix and the United States
of America (hereinafter “Federal Defendants”) seeking summary
judgment as to Count One of the Amended Complaint. (See Motion
for Summary Judgment [Docket Item 33].)1 In response, Plaintiff
1
Federal Defendants’ motion also seeks to dismiss Defendant
“Federal Correctional Institution, Fort Dix” from this case,
because only the United States is a proper defendant under the
Federal Tort Claims Act. (See Memorandum of Law in Support of
Government’s Motion for Summary Judgment (hereinafter “Fed. Defs.’
filed a cross-motion for partial summary judgment, seeking to
establish that Defendant Hopson is an employee of the United
States for the purposes of the Federal Tort Claims Act, 28
U.S.C. § 1346(b), (hereinafter “FTCA”). (See Cross Motion for
Summary Judgment (hereinafter “Pl.’s Mot.”) [Docket Item 37].)
The principal issue to be decided is whether a federal inmate is
an “employee” for the purposes of FTCA, where he is incarcerated
in a federal prison and is working as a part of the Federal
Bureau of Prisons’ (hereinafter “BOP”) inmate work program,
acting within the scope of his duties interacting with
civilians. For the reasons set forth below, the answer is yes.
Accordingly, Federal Defendants’ motion for summary judgment
[Docket Item 33] will be denied and Plaintiff’s cross-motion for
partial summary judgment [Docket Item 37] will be granted. The
Court finds as follows:2
Br.”) [Docket Item 33-1], 9 n.12.) It does not appear that
Plaintiff has responded to Federal Defendants’ request in his
opposition brief. (See generally Pl.’s Mot. [Docket Item 37], 2038 on the docket.) However, the Court shall dismiss Defendant
“Federal Correctional Institution, Fort Dix” from this suit, as
“the only proper party to a claim under the [Federal Tort Claims
Act] is the United States.” Malouf v. Turner, 814 F. Supp. 2d 454,
462 (D.N.J. 2011) (citing CNA v. United States, 535 F.3d 132, 138
n.2 (3d Cir.2008)).
2
For purposes of the instant motion and pursuant to Local Civil
Rule 56.1, the Court looks to the Amended Complaint, [Docket Item
16] when appropriate, Federal Defendants’ Statement of Material
Facts Not in Dispute, [Docket Item 33-2], Plaintiff’s Responsive
Statement of Material Facts, [Docket Item 37, 9-19 on the docket],
Federal Defendants’ Response to Plaintiff’s Responsive Statement
2
1.
Factual and Procedural Background.3 Plaintiff is a
truck driver, and on January 27, 2014, at or around 8:30 a.m.,
Plaintiff delivered a load of refrigerated and dry food products
to a warehouse operated by BOP at FCI Fort Dix. (See Transcript
of Deposition of Steven Schmidt4 (hereinafter “Pl.’s Dep.”)
[Docket Item 33-5], 13:24-14:11, 18:4-6; 22:12-14; 29:3-7.)
Plaintiff parked near the warehouse, unlocked his truck, and
waited for the truck to be unloaded. (See id. at 32:1-19, 41:2442:8.) While waiting, Plaintiff spoke with Mike Murray, a nonincarcerated BOP employee who supervised the operations of the
warehouse, to get directions to his next delivery location. (See
id.) While speaking to Mr. Murray, Plaintiff’s left foot and leg
were struck by a forklift operated by Defendant Hopson, a
federal inmate who was assigned by BOP to operate the forklift
of Material Facts, [Docket Item 38-1], and related exhibits and
documents. Where not otherwise noted, the facts are undisputed by
the parties.
3
The factual and procedural background of this case is only
presented insofar as it is necessary for the determination of the
present motions. The material facts for determination of Defendant
Hopson’s work status at the time of the accident are not in dispute
4
Federal Defendants filed excerpts from a deposition of Plaintiff
in support of their present motion. (See Pl.’s Dep. [Docket Item
33-5].) Because the entire transcript has not been provided, the
Court is unable to determine at this time whether the portions of
the transcript cited herein are the only portions of that
transcript that are relevant to the present motion. Nor is it clear
from the documents provided who is conducting the questioning in
most or all of the cited portions.
3
as part of an inmate work program. (See id. at 42:20-21;
Transcript of Deposition of Michael Murray5 (hereinafter “Murray
Dep.”) [Docket Item 33-4], 87:12-25, 88:14-22.) Plaintiff
sustained serious injuries to his left leg and foot. (Id.) At
the time of the incident, Defendant Hopson had been operating
forklifts at FCI Fort Dix for approximately five (5) years. (See
Transcript of Deposition of Anthony Hopson6 (hereinafter “Hopson
Dep.”) [Docket Item 33-6], 9:23-25, 49:12-14.) Prior to
beginning his work assignment operating forklifts, BOP
administered a training program to ensure that Defendant Hopson
understood how to operate a forklift safely. (See Murray Dep.
[Docket Item 33-4], 145:15-146:9.) Only minimum-security inmates
were permitted to perform the work of a forklift operator at FCI
5
Federal Defendants filed excerpts of a deposition of Mr. Murray
in support of their present motion. (See Murray’s Dep. [Docket
Item 33-4].) Because the entire transcript has not been provided,
the Court is unable to determine at this time whether the portions
of the transcript cited herein are the only portions of that
transcript that are relevant to the present motion. Nor is it clear
from the documents provided who is conducting the questioning in
most or all of the cited portions. Nonetheless, the parties, in
their submissions, assert the present record suffices for these
cross-motions.
6
Federal Defendants filed excerpts from a deposition of Defendant
Hopson in support of their present motion. (See Hopson Dep. [Docket
Item 33-6].) Because the entire transcript has not been provided,
the Court is unable to determine at this time whether the portions
of the transcript cited herein are the only portions of that
transcript that are relevant to the present motion. Nor is it clear
from the documents provided who is conducting the questioning in
most or all of the cited portions.
4
Fort Dix, because such a job is done “outside the fences,”
meaning that the inmates have direct interaction with members of
the public. (See id. at 145:4-7, 162:1-18.) In the event that no
inmates were available to operate the warehouse forklifts, they
would be operated by ordinary (non-incarcerated) BOP employees.
(See id. at 150:8-10, 152:4-8.) Inmates assigned to operate the
warehouse forklift receive an hourly wage, as well as vacation
time and bonus pay at the discretion of the inmate’s supervisor.
(See 28 C.F.R. §§ 545.22-.27; BOP Inmate Performance Pay Hourly
Rate [Docket Item 33-7].)
2.
On June 5, 2015, Plaintiff filed the instant action.
(See Complaint [Docket Item 1].) Plaintiff filed an Amended
Complaint on January 27, 2016.7 (See Amended Complaint [Docket
7
The Amended Complaint, which Plaintiff filed with Federal
Defendants’ consent, added Defendant Hopson, the inmate who was
operating the forklift when it collided with Plaintiff, as an
individual defendant. (Compare Complaint [Docket Item 1] with
Amended Complaint [Docket Item 16].) On February 2, 2016, a summons
was issued as to Defendant Hopson, (see Summons Issued [Docket
Item 20]), and the docket reflects that Defendant Hopson was served
on March 9, 2016. (See Certificate of Service [Docket Item 21].)
However, the docket also reflects that no attorney has ever made
an appearance on behalf of Defendant Hopson in this matter, nor
has Defendant Hopson made an appearance pro se. Nevertheless,
Defendant Hopson has been deposed in regards to this case and
excerpts of Defendant Hopson’s deposition have been submitted in
support of Federal Defendants’ present motion. (See generally
Hopson Dep. [Docket Item 33-6].) This deposition appears to have
been taken on April 6, 2017, well over a year after the Amended
Complaint added Defendant Hopson as an individual defendant in
this matter. (See generally id.) It is unclear from the portions
of the transcript provided whether AUSA Bober, counsel for Federal
Defendants, was representing Defendant Hopson during this
5
Item 16].) Federal Defendants filed their Answer to Plaintiff’s
Amended Complaint on February 2, 2016. (See Answer [Docket Item
18].) Plaintiff’s Amended Complaint alleges, inter alia, that
“[o]n January 27, 2014, the fork lift [sic] operator on behalf
of Defendant [FCI Fort Dix] . . . was operating a forklift on
behalf of Defendant [FCI Fort Dix] in a negligent manner,
striking Plaintiff [], running over and seriously injuring
Plaintiff’s left ankle.” (Amended Complaint [Docket Item 16],
Count One, ¶ 4.) Additionally, Plaintiff alleges that “[t]he
actions of the forklift operator were as an employee, servant or
agent on behalf of [Federal Defendants] operating the property
through the [BOP].” (Id. at Count One, ¶ 7.) Plaintiff is
seeking damages from Federal Defendants for the injuries he
sustained as a result of the allegedly negligent behavior of the
forklift operator. (Id. at Count One, ¶ 8.)
3.
Federal Defendants filed the present motion for
summary judgment, arguing that they are entitled to judgment in
deposition or whether Defendant Hopson was unrepresented. (See
id.) It is further unclear whether Defendant Hopson was actually
aware that he has been named as an individual defendant in this
suit. (See id.) In light of the preceding, counsel for Plaintiff
shall, by no later than October 12, 2018, submit a letter detailing
the status of Defendant Hopson in this suit, including whether
Defendant Hopson was represented by counsel at his deposition and
whether Defendant Hopson was aware during his deposition that he
has been named as an individual defendant in this suit. Plaintiff’s
counsel shall also address whether, in light of the Court’s
determination herein, Plaintiff is prepared to voluntarily dismiss
his case against Defendant Hopson.
6
their favor as to Count One of the Amended Complaint, because
the FTCA does not act as a waiver of sovereign immunity with
respect to the negligent actions of federal inmates engaged in
an inmate work program, such as Defendant Hopson. (See Fed.
Defs.’ Br. [Docket Item 33-1], 13-23.) In response, Plaintiff
filed the present cross-motion for summary judgment as to Count
One, seeking partial summary judgment for a determination, as a
matter of law, that Defendant Hopson is regarded as an employee
of the government under the statutory definition of “[e]mployee
of the government” in the Federal Tort Claims Act, 28 U.S.C.
§ 2671. (See Pl.’s Mot. [Docket Item 37].) Federal Defendants
filed a reply. (See Reply Memorandum of Law [Docket Item 38].)
The issues of Defendant Hopson’s negligence or Plaintiff’s
damages are not implicated or addressed in these cross-motions.
The pending motions are now fully briefed and ripe for
disposition. The Court will decide the motions without oral
argument, pursuant to Fed. R. Civ. P. 78.
4.
Standard of Review. At summary judgment, the moving
party bears the initial burden of demonstrating that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law. FED. R. CIV. P. 56(a);
accord Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once
a properly supported motion for summary judgment is made, the
burden shifts to the non-moving party, who must set forth
7
specific facts showing that there is a genuine issue for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In
reviewing a motion for summary judgment, the court is required
to examine the evidence in light most favorable to the nonmoving party and resolve all reasonable inferences in that
party’s favor. Scott v. Harris, 550 U.S. 372, 378 (2007); Halsey
v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014).
5.
A factual dispute is material when it “might affect
the outcome of the suit under the governing law,” and genuine
when “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248. The
non-moving party “need not match, item for item, each piece of
evidence proffered by the movant,” but must present more than a
“mere scintilla” of evidence on which a jury could reasonably
find for the non-moving party. Boyle v. Cnty. of Allegheny, Pa.,
139 F.3d 386, 393 (3d Cir. 1998) (quoting Anderson, 477 U.S. at
252).
6.
Discussion. This is the relatively rare case where
there is no dispute as to the material facts regarding these
competing motions for summary judgment. Plaintiff brings suit in
Count One against Federal Defendants under the Federal Tort
Claims Act, which holds the United States liable “only to the
extent that in the same circumstances the applicable local law
8
would hold ‘a private person’ responsible.” Lomando v. United
States, 667 F.3d 363, 373 (3d Cir. 2011).
Under the FTCA, the sovereign immunity of the
United States is waived for certain torts
committed by Federal employees. See 28 U.S.C.
§ 1346(b). A claim under the FTCA must be (1)
against the United States, (2) for money
damages, (3) “for injury or loss of property,
or personal injury or death,” (4) caused by
the negligent or wrongful act or omission of
any employee of the United States, (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.” Id.
Curbison v. U.S. Gov’t of N.J., No. 05-5280, 2006 WL 3544560, at
*8 (D.N.J. Dec. 7, 2006). The definition of “employee” under the
FTCA is key to the resolution of this dispute about Defendant
Hopson’s capacity. By the terms of the FTCA itself,
“[e]mployee of the government” includes (1)
officers or employees of any federal agency,
members of the military or naval forces of the
United States, members of the National Guard
while engaged in training or duty . . . , and
persons acting on behalf of a federal agency
in an official capacity, temporarily or
permanently in the service of the United
States, whether with or without compensation,
and (2) any officer or employee of a Federal
public defender organization . . . .
28 U.S.C. § 2671. Federal Defendants contend that Defendant
Hopson, as an inmate engaged in a BOP work program, does not
fall under the FTCA’s definition of an “employee of the
government,” and therefore that the United States has not waived
9
sovereign immunity with respect to liability for his negligence.
(See Fed. Defs.’ Br. [Docket Item 33-1], 11-23.) Plaintiff
contends that Defendant Hopson does fall under the FTCA’s
definition of an “employee of the government,” and therefore
that the United States has waived sovereign immunity with
respect to liability for his negligence. (See Pl.’s Mot. [Docket
Item 37], 20-38 on the docket.) If Federal Defendants’ position
is correct, then they are entitled to summary judgment as to
Count One, as a matter of law. If Plaintiff’s position is
correct, then he is entitled to partial summary judgment
establishing that Defendant Hopson is an employee for the
limited purposes of the FTCA.8
7.
There is no evidence that Defendant Hopson is a
“member[] of the military or naval forces of the United States,
[a] member[] of the National Guard. . . , [or an] officer or
employee of a Federal public defender organization.” Therefore,
the Court shall confine its analysis to whether Defendant Hopson
8
The parties appear to agree that there is only one prior case
addressing whether or not the United States can be held liable for
the torts of an inmate under the FTCA: Sapp v. United States, 227
F.2d. 280 (5th Cir. 1955). In Sapp, the Fifth Circuit held that
“the relationship of [a federal] prisoner to [a federal] guard is
not such as will under the common law impute the negligence of the
former to the latter.” Id. at 282. However, the parties also agree
that the Sapp court was not called on to decide whether the inmate
was an “employee” for the purposes of the FTCA. (See Fed. Defs.’
Br. [Docket Item 33-1], 19; Pl.’s Mot. [Docket Item 37], 37 on the
docket.) Therefore, the Court finds that neither the holding nor
the reasoning of Sapp are of assistance in the present context.
10
is an “officer[] or employee[] of any federal agency” or a
“person[] acting on behalf of a federal agency in an official
capacity, temporarily or permanently in the service of the
United States, whether with or without compensation.”
8.
As described, supra, it is undisputed that:
Defendant Hopson worked for BOP as a forklift
operator, a job for which BOP trained him, in the
warehouse at FCI Fort Dix;
Defendant Hopson’s work assignment included
unloading deliveries of foodstuffs from commercial
suppliers for the use of BOP at FCI Fort Dix;
Defendant Hopson, while in his role as forklift
operator, would regularly come into contact with
members of the public, working “outside the fence”
at the FCI Fort Dix warehouse and its loading dock;
Defendant Hopson was supervised by Mr. Murray, a
non-incarcerated BOP employee;
Defendant Hopson was compensated for his work with
an hourly wage and with the opportunity for bonus
pay and vacation time;
In the event that no inmates were able to operate
the forklift, a non-incarcerated BOP employee would
do so.
11
9.
With these facts not in dispute, the Court finds that
Defendant Hopson, while operating a forklift for Defendant FCI
Fort Dix, was an “employee of the government” for the purposes
of the FTCA as that term is statutorily defined by § 2671. The
work that Defendant Hopson was engaged in was important to the
work of BOP, a federal agency.9 He was closely supervised by BOP
managers. He was compensated for his work.10 And his work, by
necessity, required interaction with the public and therefore
9
Federal Defendants assert that Defendant Hopson is not the type
of worker who is considered to be “acting on behalf of a federal
agency.” (Fed. Defs.’ Br. [Docket Item 33-1], 21.) Federal
Defendants initially cite to the case of Krichman v. United States,
256 U.S. 363 (1921), which pertains to a criminal charge of bribery
and predates the passage of the FTCA by a number of decades. The
Court therefore finds Krichman unpersuasive in determining the
meaning of the terms of the FTCA. Federal Defendants further cite
to Logue v. United States, 412 U.S. 521 (1973), and its progeny.
(See Fed. Defs.’ Br. [Docket Item 33-1], 21-23.) However, the Logue
line of cases grapple with the distinction between an employee of
the United States and an independent contractor engaged by the the
United States. As Federal Defendants have not made an argument
that Defendant Hopson should be considered an independent
contractor for the purposes of the FTCA, the Court finds this line
of cases inapposite. Any argument that Defendant Hopson was an
independent contractor would fail, as every aspect of his forklift
operator job was determined by and directly supervised by BOP, as
were all his terms and conditions of employment, leaving Defendant
Hopson no autonomy in deciding how and when he would perform his
job or the equipment he would use.
10
The Court notes that the FTCA does not require that an individual
be compensated in order to fall within the definition of an
“employee of the government.” 28 U.S.C. § 2671. That Defendant
Hopson was paid at a very low rate payable for BOP work program
labor is of no moment, for it satisfies the definitional terms of
“with or without compensation,” 28 U.S.C. § 2671, supra.
12
created the possibility of incurring liability for negligence
while in the course of his federal work assignment.
10.
In determining Defendant Hopson’s status as an
employee, the Court applies the clear words of the FTCA to
determine Congress’s intent. The Court notes that the syntax of
the words Congress chose to use also supports this
determination, wherein Congress indicated that an “employee of
the government” for the purposes of the FTCA includes
individuals in categories broader than “officers and employees
of any federal agency,” or else the definition would have
stopped there. Congress broadened the reach of covered
individuals beyond such federal agency officers and employees to
include certain members of the armed forces and National Guard,
as wall as “persons acting on behalf of a federal agency in an
official capacity, temporarily or permanently in the service of
the United States,” whether paid or unpaid, a category
significantly expanding the ordinary conception of an
“employee.” Where the wording and the internal structure of the
FTCA is clear, we do not need to consider “policy” arguments to
figure out whether this result is correct. See McNeill v. United
States, 563 U.S. 816, 819 (2011) (“As in all statutory
construction cases, we begin with ‘the language itself [and] the
specific context in which that language is used.’” (quoting
Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997))); Cent.
13
Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A.,
511 U.S. 164, 165 (1994) (“SEC's various policy
arguments . . . cannot override the Court's interpretation of
the Act's text and structure because such arguments do not show
that adherence to the text and structure would lead to a result
so bizarre that Congress could not have intended it.” (citing
Demarest v. Manspeaker, 498 U.S. 184, 191 (1991))). Nonetheless,
the Court will briefly address the parties’ policy-related
arguments for and against this interpretation
11.
Federal Defendants’ policy arguments: Federal
Defendants further argue that Defendant Hopson should not be
considered covered by the FTCA, because federal inmates engaged
in a work program are not considered “employees” for the
purposes of other federal statutory schemes, including the Fair
Labor Standards Act, the Age Discrimination in Employment Act,
the Toxic Substances Control Act, the Clean Air Act, and the
Federal Employees Compensation Act. (See Fed. Defs.’ Br. [Docket
Item 33-1], 15-18, 23-24.) However, Plaintiff argues that the
case law surrounding these statutes is inapposite and the
argument is unpersuasive, because
[t]hose cases all dealt with interpretation of
statutes to deal with different social issues
that were to protect the rights of employees
but not intended for the benefit of inmates.
This case involves a separate piece of
legislation, the FTCA. The purpose of the FTCA
is
to
protect
individuals
injured
by
14
employees. Thus, the court is not being asked
to interpret a statute for the purpose of
benefiting an inmate. Rather, the court is
being asked to interpret a statute for the
purpose of benefiting an individual injured by
virtue of a tort performed by a person acting
for the Government.
(See Pl.’s Mot. [Docket Item 37], 32-38.) The Court agrees that
the reasoning undergirding the decisions described by Federal
Defendants does not apply to the present case, because the FTCA
works to benefit persons who are injured by torts committed by
“employees” of the United States, not to benefit those
“employees” themselves, albeit in the context of a limited
waiver of sovereign immunity.11
12.
Federal Defendants also contend that holding Defendant
Hopson to be an “employee of the government” for the purposes of
the FTCA, it would expose the United States to liability for the
torts of the thousands of federal inmates who engage in a BOP
work program. (See Fed. Defs.’ Br. [Docket Item 33-1], 24-26.)
This concern may be more hypothetical than real, as research has
disclosed that the present situation is rare and is unaddressed
in any on-point judicial decision. However, as Defendant
Hopson’s activities clearly fall within the definition of
11
The converse of Federal Defendants’ argument is that a prison
inmate participating in a work program performing duties
supervised by, and for the benefit of, BOP who negligently causes
injury to a member of the public should be subjected to a personal
judgment and perhaps a lifetime financial obligation to the injured
party. We have located no precedent reaching such a conclusion.
15
“employee of the government” provided by statute, should BOP
feel that the present FTCA contains an overly-broad scope of
coverage for negligent acts of an “employee of the government,”
their recourse is with Congress, not the courts.
13.
Conclusion. For the reasons stated above, Federal
Defendants’ motion for summary judgment [Docket Item 33] will be
denied, except it will be granted to dismiss Plaintiff’s claims
against Defendant “Federal Correctional Institution, Fort Dix,”
which is not an appropriate defendant under the FTCA.
Plaintiff’s cross-motion for partial summary judgment will be
granted to determine only, as a matter of law, that Defendant
Hopson was operating his BOP forklift unloading a commercial
delivery from Plaintiff’s truck at the time of the incident as
an “employee of the government” for the purposes of the FTCA. An
accompanying Order will be entered.
September 26, 2018
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
16
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