SCHMIDT v. FEDERAL CORRECTIONAL INSTITUTION, FORT DIX et al
Filing
56
MEMORANDUM OPINION. Signed by Judge Jerome B. Simandle on 12/11/2018. (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)
UNITED STATES OF AMERICA, et
al.,
Defendants.
MEMORANDUM
OPINION
SIMANDLE, District Judge:
Plaintiff Steven Schmidt (hereinafter “Plaintiff”) brings
this negligence action under the Federal Tort Claims Act
(hereinafter “FTCA”) against Defendants the United States of
America (hereinafter “the United States”) and John Does 1-20
(fictious names)1 as a result of injuries sustained by Plaintiff
while he was making a delivery to a warehouse facility outside
the fence of the Federal Correctional Institution, Fort Dix
(hereinafter “FCI Fort Dix”). (See Amended Complaint [Docket
Item 16].) Plaintiff, a commercial truck driver, alleges he was
injured while making a delivery to a warehouse facility at FCI
Fort Dix when he was struck by a forklift operated by FCI Fort
Dix worker/inmate Anthony Hopson, under the direction and in the
1
Plaintiff’s Amended Complaint also named FCI Fort Dix
worker/inmate Anthony Hopson as a defendant. (See [Docket Item
16].) However, Mr. Hopson was voluntarily dismissed from this case
on November 6, 2018. (See Order [Docket Item 54].)
presence of Bureau of Prisons (hereinafter “BOP”) supervisor
Michael Murray. This matter comes before the Court by way of a
motion filed by the United States2 seeking summary judgment as to
Counts Three through Six of the Amended Complaint. (See Motion
for Summary Judgment [Docket Item 39].) Plaintiff has filed a
brief opposing the United States’ motion. (See Plaintiff’s Brief
in Opposition (hereinafter “Pl.’s Opp’n”) [Docket Item 43].) The
United States has filed a reply brief. (See Reply Brief [Docket
Item 49].) The principal issues to be decided are whether the
“discretionary function exception” to the FTCA, 28 U.S.C. §§
1346(b), 2680(a), bars any of Plaintiff’s claims, and whether
any of Plaintiff’s claims are barred due to Plaintiff’s alleged
failure to exhaust administrative remedies prior to filing this
suit. (See United States’ Br. [Docket Item 39-1].) For the
reasons set forth below, the United States’ motion for summary
judgment [Docket Item 39] will be granted with respect to
certain portions of Count Six of the Amended Complaint; Counts
Two, Five, and Six of the Amended Complaint will be dismissed;
2
This motion was initially filed also on behalf of Defendant FCI
Fort Dix. (See Motion for Summary Judgment [Docket Item 39].)
However, subsequent to the filing of this motion, the Court
dismissed Defendant FCI Fort Dix from this suit. (See Memorandum
Opinion [Docket Item 47], 1-2 n.1; Order [Docket Item 48], 1.) The
sole proper defendant in an FTCA case arising from the alleged
negligence of an employee or agent of the United States is the
United States.
2
Count Seven of the Amended Complaint will be dismissed without
prejudice; and the remainder of the United States’ motion will
be denied. The Court finds as follows:3
1.
Factual and Procedural Background. The factual and
procedural background of this case was previously detailed in
the Court’s Memorandum Opinion of September 26, 2018, and shall
not be repeated herein, except as necessary for the
determination of the present motion. See Schmidt v. Fed. Corr.
Inst., Fort Dix, No. 15-3789, 2018 WL 4620672, at *1-2 (D.N.J.
Sept. 26, 2018).
2.
Federal Defendants originally filed a prior motion for
summary judgment, arguing that they were entitled to judgment in
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 Mr. Hopson. (See Fed. Defs.’ Br.
[Docket Item 33-1], 13-23.) In response, Plaintiff filed a
cross-motion for summary judgment as to Count One, seeking
3
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, the United States’ Statement of Material
Facts Not in Dispute, [Docket Item 39-2], Plaintiff’s Responsive
Statement of Material Facts, [Docket Item 43, 5-9 on the docket],
Plaintiff’s Counterstatement of Material Facts, [Docket Item 43,
10-17 on the docket], Federal Defendants’ Response to Plaintiff’s
Counterstatement of Material Facts, [Docket Item 46-1], and
related exhibits and documents. Where not otherwise noted, the
facts are undisputed by the parties.
3
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].) On September 26, 2018, the
Court denied Defendants’ earlier motion for summary judgment
[Docket Item 33], except insofar as it sought to dismiss
Defendant FCI Fort Dix, and granted Plaintiff’s cross-motion for
summary judgment [Docket Item 37] “to determine only, as a
matter of law, that [Mr.] Hopson was operating his [Federal
Bureau of Prisons] 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 [Federal Tort Claims
Act, 28 U.S.C. § 2671].” (See Memorandum Opinion [Docket Item
47], 16.)
3.
On November 6, 2018, Mr. Hopson, who was previously
individually named as a defendant in this case, was voluntarily
dismissed, since the United States is the sole proper defendant
in an action arising from the negligence of its employee or
agent acting within the scope of his or her duties. See 28
U.S.C. § 2679(c)-(d); Order [Docket Item 54].
4.
Thereafter, the United States filed the present motion
for summary judgment as to Counts 3, 4, 5, and 6. (See Motion
for Summary Judgment [Docket Item 39].) The pending motion is
4
fully briefed and ripe for disposition. The Court held oral
argument on November 7, 2018.
5.
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
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).
6.
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.,
5
139 F.3d 386, 393 (3d Cir. 1998) (quoting Anderson, 477 U.S. at
252).
7.
Discussion. In the present motion, the United States
seeks summary judgment in its favor with regard to Counts Three,
Four, Five, and Six of the Amended Complaint. (See Motion for
Summary Judgment [Docket Item 39].)
a.
Count Two – Negligent Operation of the Forklift.
Plaintiff brings suit in Count Two against Mr. Hopson for
injuries sustained by Plaintiff as a result of Mr. Hopson’s
allegedly negligent operation of the forklift at issue in this
case. (Amended Complaint [Docket Item 16], Count Two ¶ 4-7.)
However, at oral argument, Plaintiff conceded that he would
consent to dismiss Count Two, as he believes that is repetitive
of the allegations set forth in Count One of the Amended
Complaint and because Mr. Hopson, deemed an employee of the
United States for purposes of FTCA liability, cannot be
individually sued for negligence within the scope of his federal
employment. As such, the Court shall dismiss Count Two, while
recognizing that Mr. Hopson’s negligence in the operation of the
forklift is attributable to the United States by operation of
the FTCA, and as alleged in Count One.
b.
Count Three – Negligent Operation of FCI Fort
Dix. Plaintiff brings suit in Count Three against the United
6
States for injuries sustained by Plaintiff as a result of the
allegedly negligent operation of FCI Fort Dix, including:
a. negligently failing to establish and
implement policies and procedures sufficient
for the safe operation of the loading and
unloading at its facility;
b. negligently failing to reasonably train its
forklift operators, including the forklift
operator on the date of the accident;
c. negligently failing to reasonably supervise
its forklift operators, including the forklift
operator on the date of the accident
d.
negligently
failing
to
operate
and
supervise the loading dock;
e. negligently creating and operating a
program using prisoners as operators of
mechanical
equipment
without
creating
reasonable and adequate procedures for the
safety of visitors, including Plaintiff,
and/or
f. otherwise acting negligently.
(Amended Complaint [Docket Item 16], Count Three ¶ 4.) The United
States asserts that it is entitled to summary judgment as to Count
Three because the discretionary function exception bars any claims
regarding the United States’ negligent supervision or negligent
training of Mr. Hopson, and regarding the United States’ “fail[ure]
to establish and implement policies and procedures sufficient for
the safe operation of the loading and unloading at its facility.”
(United States’ Br. [Docket Item 39-1], 16-18, 25-26.) However, at
oral argument, Plaintiff conceded that he would withdraw any
arguments regarding the propriety of the policy of using prisoners
to operate forklifts in general, or regarding negligent training
or supervision of Mr. Hopson in particular. Plaintiff further
7
asserted at oral argument that in Count Three he is only pursuing
claims regarding Mr. Murray’s personal negligence as a BOP employee
at the time of the accident. Additionally, Plaintiff argues that
the discretionary function exception does not shield the United
States from liability for Mr. Murray negligently putting Plaintiff
in harm’s way, since Mr. Murray knew of the layout and potential
dangers of the loading area. (Pl.’s Opp’n [Docket Item 43], 2231.)
Plaintiff
also
argues
that
the
discretionary
function
exception does not shield the United States from liability for
Murray’s negligent actions related to “loading dock operational
activities” or supervision at the time in question. (Id.)
The United States responds that there is no evidence that Mr.
Murray “directed” Plaintiff into the forklift’s path. (United
States’ Reply [Docket Item 46], 2-6.) However, Plaintiff need not
show that he was specifically “directed” into the forklift’s path
by Mr. Murray in order to succeed on this count. Plaintiff alleges
that Mr. Murray was talking with him and failed to warn him even
as the forklift backed into him and struck him. The United States
also fails to show that there is no genuine dispute of material
fact as to Mr. Murray’s alleged breach of this duty. As such, the
United States has failed to meet its burden to establish that it
is entitled to summary judgment as to Count Three on the basis
that there is no genuine dispute of material fact, and this portion
8
of the United States’ present motion shall not be granted on these
grounds.
The United States also seeks summary judgment with regard to
Count Three on the basis that “operational activities” such as
supervising
inmate
workers
are
covered
by
the
discretionary
function exception. (United States’ Reply [Docket Item 46], 6-12.)
However, as Plaintiff has made clear at oral argument that in Count
Three he is only pursuing claims of negligence based on Mr.
Murray’s own direct actions or inactions, and not based on Mr.
Murray’s training or supervision of Mr. Hopson, this portion of
the United States’ present motion shall be dismissed as moot
because Plaintiff has dropped his claim that the BOP’s policies
and procedures in selecting, training, and supervising inmates to
perform forklift operations were negligent, and such allegations
by Plaintiff are dismissed.
Plaintiff’s remaining claim in Count Three boils down to the
assertion that Mr. Murray was a BOP employee who owed Plaintiff a
duty of due care when dealing with him at the warehouse, including
warning of imminent dangers that Plaintiff may not have perceived,
caused by the nearby forklift operations, and that breach of this
duty was a proximate cause of the accident. The Court finds there
is a genuine dispute of material fact as to Mr. Murray’s conduct
toward Plaintiff at the time of the accident. Plaintiff appears to
9
allege that Mr. Murray was giving Plaintiff directions4 to his next
delivery location, thereby distracting Plaintiff from the dangers
of
the
oncoming
forklift.
(Plaintiff’s
Counterstatement
of
Material Facts [Docket Item 43], 17 on the docket, ¶¶ 14-16.) The
United States admits that Mr. Murray was “instructing” Plaintiff,
but
denies
that
Mr.
Murray
was
“actively”
giving
Plaintiff
directions. (Response to Plaintiff’s Counterstatement of Material
Facts [Docket Item 46-1], ¶¶ 14-16.) The nature of the interaction
between Plaintiff and Mr. Murray immediately leading up to the
collision is material to what duty Mr. Murray may have owed
Plaintiff with regards to preventing the collision or giving
Plaintiff ample warning regarding the impending collision, and
whether Mr. Murray breached that duty. Therefore, the present
dispute of fact as to the interactions between Plaintiff and Mr.
Murray is indeed material to the claims in this count and summary
judgment as to this count shall therefore be denied.
The United States further argues that it is entitled to
summary judgment on Count Three, because Plaintiff failed to
exhaust his administrative remedies in relation to the allegations
4
The United States may misunderstand the Plaintiff’s use of the
word “direction” in relation to the allegations in this count. It
appears to the Court that the Plaintiff contends that Mr. Murray
was giving Plaintiff directions to Plaintiff’s next delivery
location at the time of the collision, while the United States
appears to believe that Plaintiff contends that Mr. Murray was
actively directing Plaintiff into the path of the forklift.
10
in Count Three. (See United States’ Br. [Docket Item 39-1], 2629.)
Specifically,
the
United
States
argues
that
Plaintiff’s
administrative tort claim notice did not explicitly set forth the
theories
of
liability
alleged
in
Count
Three,
and
therefore
Plaintiff may not bring suit under the FTCA for these theories.
(Id.) Plaintiff asserts that his tort claim notice put the United
States on sufficient notice that his claims pertained to Mr.
Murray’s actions or inactions, such that there is no basis for the
United States’ assertion that Plaintiff has failed to exhaust his
administrative remedies. (Pl.’s Opp’n [Docket Item 43], 31-32.)
The FTCA provides that, to exhaust a claim and give proper
pre-suit notice, a claimant “shall,” before filing a lawsuit for
personal injury arising from the acts or omissions of the United
States or its employees or agents, “present[] the claim to the
appropriate
Federal
agency.”
28
U.S.C.
§ 2675(a).
The
administrative tort claim requirement is a precondition to the
United States’ waiver of sovereign immunity that must be strictly
construed. Livera v. First Nat’l Bank of N.J., 879 F.2d 1186, 1194
(3d Cir. 1989). Standard Form 95, promulgated for this purpose
across all federal agencies, instructs the claimant to “[s]tate in
detail the known facts and circumstances surrounding the damage,
injury or death, identifying the persons or property involved, the
place of occurrence and the cause thereof.” (SF 95, at Bober Decl.,
Ex. D., box 8.)
11
As the United States pointed out in its brief,
[t]o comply with the presentment requirement,
the administrative claim “need not elaborate
all possible causes of action or theories of
liability,” but it must provide the agency
notice of “the facts and circumstances”
underlying the claims. Bethel v. United
States, 495 F. Supp. 2d 1121, 1123 (D. Colo.
2007); see also Glade ex rel. Lundskow v.
United States, 692 F.3d 718, 722 (7th Cir.
2012) (FTCA administrative claim “need not set
forth a legal theory, but must allege facts
that would clue a legally trained reader to
the theory’s applicability.”); Staggs v.
United States, 425 F.3d 881, 884 (10th Cir.
2005) (administrative claim requires “a
written statement sufficiently describing the
injury to enable the agency to begin its own
investigation”).
(United States’ Br. [Docket Item 39-1], 27.)
In this case, Plaintiff’s tort claim thoroughly describes the
date,
location,
and
events
that
underlie
his
claims
for
compensation. (See Tort Claim [Docket Item 39-7].) Specifically,
the tort claim stated that
[Plaintiff] is an independent truck driver who
was on prison property for the purpose of
delivering a load of food products to Fort Dix
Federal Prison. [Plaintiff]’s truck was parked
parallel to another truck that was being
unloaded at the time. The truck was not backed
to a loading dock; rather, a hand truck was to
be lifted into the trailer that would be used
to bring pallets to the rear of the trailer
where they could be off loaded with a
forklift.
[Plaintiff] had exited his truck and had
approached the rear of the trailer to open the
doors. [Plaintiff]was standing at the rear of
the trailer with a prison employee only known
12
as “Mike.”5 Without warning, a forklift ran
over [Plaintiff]. The forklift was being
operated by a prisoner and was in reverse at
the time. The forklift did not have an
operating reverse warning sound or alarm at
the time. The person named “Mike” attempted to
pull [Plaintiff]to safety but was unable to do
so. Severe crush injuries to his ankle and leg
occurred that required 6 different surgical
procedures.
(Id. at 4-5 on the docket.)
Plaintiff’s tort claim clearly gave the United States notice
of “the facts and circumstances” underlying Plaintiff’s claims,
but did not need to identify all causes of action or theories of
liability. Bethel v. United States, 495 F. Supp. 2d 1121, 1123 (D.
Colo. 2007); see also Glade ex rel. Lundskow v. United States, 692
F.3d
718,
722
(7th
Cir.
2012).
Plaintiff’s
tort
claim
also
“allege[d] facts that would clue a legally trained reader” to the
potential for Plaintiff to claim that Mr. Murray’s allegedly
negligent actions gave rise to the United States’ liability or
inactions with respect to the events in question. Glade, 692 F.3d
at 722. Finally, Plaintiff’s tort claim was certainly “a written
statement sufficiently describing the injury to enable the agency
to
begin
its
own
investigation”
of
the
events
surrounding
Plaintiff’s injury. Staggs, 425 F.3d at 884. Therefore, the Court
finds that Plaintiff’s tort claim was sufficient to exhaust his
administrative remedies and put the United States on notice as to
5
The Court understands this to be a reference to Mr. Murray.
13
the potential for liability under the theories advanced in Count
Three, among others; the Court will deny summary judgment in part
as to the aspect of Count Three that alleges negligence by Mr.
Murray in his dealings with Plaintiff, but Count Three is otherwise
dismissed.
c.
Count Four – Negligent Maintenance of the
Forklift. Count Four alleges the United States’ negligent use
and maintenance of the forklift at issue in this case. (Amended
Complaint [Docket Item 16], Count Four ¶ 4-6.) Plaintiff
indicated at oral argument that he is only pursuing this count
insofar as it relates to Plaintiff’s allegation that the
forklift did not have a functioning backup alarm at the time
that it collided with Plaintiff, thus failing to provide due
warning to Plaintiff, and that the remainder of this Count is
withdrawn.
With regard to Plaintiff’s claims regarding the forklift’s
backup alarm, the United States asserts that it is entitled to
summary judgment because there is no genuine dispute of material
fact regarding the backup alarm. (See United States’ Br. [Docket
Item 39-1], 30.) Specifically, the United States asserts that
Mr. Hopson testified that he tested the backup alarm prior to
using the forklift, and that he would not have used the forklift
if the backup alarm was not functioning. (See id.; Hopson Dep.
[Docket Item 39-6], 57:6-59:2.) Furthermore, the United States
14
asserts that Mr. Murray certified that he tested the forklift
after the accident and that at that time the backup alarm was
working. (See United States’ Br. [Docket Item 39-1], 30; Murray
Cert. [Docket Item 39-8], ¶ 9.) The United States finally
asserts that Plaintiff “testified that he did not recall hearing
a backup alarm before he was stricken.” (United States’ Br.
[Docket Item 39-1], 30) However, the United States’ final
assertion is partly inaccurate. The following is an excerpt from
the transcript of Plaintiff’s deposition:
Q. Do you recall whether that forklift -- do
you recall whether that forklift had a backup
alarm?
A. No.
Q. You know, when you say you don’t recall,
I’m asking do you not recall or do you
specifically remember not hearing a backup
horn?
A. There was no backup beeper or no alarm on
there.
(Schmidt Dep. [Docket Item 39-5], 50:21-51:2.) The Court notes
that Plaintiff’s testimony is not merely that he does not
“recall” hearing a backup alarm, but that he affirmatively
asserts that there was no such alarm. Resolving the discrepancy
between Plaintiff’s testimony and that of Messrs. Hopson and
Murray would require a credibility determination that is
inappropriate in the context of a motion for summary judgment.
Est. of Smith v. City of Wildwood, No. 16-0925, 2018 WL 4639182,
15
at *3 (D.N.J. Sept. 27, 2018) (citing Anderson, 477 U.S. at
255). Plaintiff, as the party opposing summary judgment, is
entitled to the benefit of the reasonable inference that the
backup alarm did not sound. Therefore, the Court shall deny the
United States’ motion with respect to Count Four of the Amended
Complaint.
d.
Count Five – Negligent Operation and Maintenance
of Loading and Unloading Area. Count Five alleges injuries
sustained by Plaintiff as a result of the United States’
allegedly negligent operation and maintenance of the loading and
unloading area at issue in this case. (Amended Complaint [Docket
Item 16], Count Five ¶ 3-4.) However, at oral argument,
Plaintiff conceded that he believes that Count Five is
repetitive of the remaining allegations set forth in Counts One,
Three, and Four of the Amended Complaint. As such, the Court
shall dismiss Count Five.
e.
Count Six – Negligence and Other Breach of Duty
Related to Using the Work of Prisoners in the Loading and
Unloading Areas. Plaintiff brings suit in Count Six for injuries
sustained by Plaintiff as a result of the United States’ breach
of its duty (negligently or otherwise) “to take reasonable
precautions to protect the public by the use of prisoners in the
operation of its loading and unloading of deliveries, including
in the operation of mechanical equipment including forklifts.”
16
(Amended Complaint [Docket Item 16], Count Six ¶ 6.) Plaintiff’s
counsel indicated at oral argument that he is only pursuing this
Count insofar as it relates to Plaintiff’s allegation that the
United States was negligent in giving Mr. Hopson access to a
forklift in the presence of the public, and that the remainder
of this Count is withdrawn. Specifically, Plaintiff argues that
the FTCA’s discretionary function exception does not shield the
United States from liability for Mr. Murray’s actions related to
“loading dock operational activities” and/or supervision. (Pl.’s
Opp’n [Docket Item 43], 27-31.) However, the Court notes that
this theory of liability overlaps with Counts One and Three of
the Amended Complaint, making it repetitive.
Because the Court is unsure that Plaintiff has withdrawn
his claim that the United States was negligent in permitting a
worker/inmate like Mr. Hopson to operate a forklift in the
presence of a member of the public at the warehouse, this
allegation of negligent staffing will be addressed. First,
Plaintiff does not assert a factual basis for claiming that
there was something about Mr. Hopson that made him unsuitable to
operate a forklift; instead, Plaintiff makes the more generic
claim that the decision to use an inmate to operate such
machinery was itself negligent. As the United States points out,
the discretionary function exception bars claims for negligently
deciding to assign prisoners to work duties, because BOP is
17
required by law to assign prisoners to work and the BOP has
discretion to determine which job each prisoner will have. (See
United States’ Br. [Docket Item 39-1], 18-21.) This is correct
because the discretionary function exception of § 2680(a)
precludes
[a]ny claim based upon an act or omission of
an employee of the Government, exercising due
care, in the execution of a statute or
regulation, whether or not such statute or
regulation be valid, or 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). The United States rightly points out in its
brief that “Congress has directed that ‘convicted inmates
confined in Federal prisons, jails, and other detention
facilities shall work,’ . . . and thus the BOP has no choice but
to assign work to the inmates in its custody,” and that “the
type and manner of [an inmate’s] work has been left to the BOP’s
discretion.” (United States’ Br. [Docket Item 39-1], 19 (quoting
Crime Control Act of 1990, Pub. L. No. 101-647, § 2905, 104
Stat. 4789 (1990)).) Further, the United States notes that “the
BOP has promulgated regulations providing that “[e]ach sentenced
inmate who is physically and mentally able is to be assigned to
an institutional, industrial, or commissary work program,” . . .
but, beyond these regulations, there is nothing that mandates
18
particular job assignments.”6 (Id. (quoting 28 C.F.R.
§ 545.23(a)).)
The Third Circuit has summarized the Supreme Court’s
jurisprudence surrounding the discretionary function exception
thusly:
[a c]ourt must undertake a two-part inquiry to
determine if the discretionary function
exception applies in a particular case. See
United States v. Gaubert, 499 U.S. 315, 322–
23, 111 S. Ct. 1267, 113 L.Ed.2d 335 (1991);
see also [Merando v. United States, 517 F.3d
160, 164 (3d Cir. 2008)]. First, [a c]ourt
must consider whether the act that gave rise
to the injury alleged involves “an element of
judgment or choice.” Gaubert, 499 U.S. at 322,
111 S. Ct. 1267. If a federal statute,
regulation, or policy specifically prescribes
a course of action for an employee to follow,
then the first part is not satisfied, because
the federal employee has no other option but
to follow that course of action. Id.
Second, [a c]ourt must determine “‘whether
that judgment is of the kind that the
discretionary function exception was designed
to shield.’” Gaubert, 499 U.S. at 322–23, 111
S. Ct. 1267. To avoid judicial secondguessing, government actions and decisions
that are based on considerations of public
6
However, BOP’s regulation does state that
[i]n
making
the
work
and/or
program
assignment(s), staff shall consider the
inmate’s
capacity
to
learn,
interests,
requests, needs, and eligibility, and the
availability of the assignment(s). An inmate’s
assignment shall be made with consideration of
the institution’s security and operational
needs, and should be consistent with the
safekeeping of the inmate and protection of
the public.
28 C.F.R. § 545.23(d).
19
policy will be shielded, and the focus of this
inquiry is not on the federal employee’s
subjective intent, but rather, “on the nature
of the actions taken and on whether they are
susceptible to policy analysis.” [S.R.P. ex
rel. Abunabba v. United States, 676 F.3d 329,
333 (3d Cir. 2012)] (quoting Gaubert, 499 U.S.
at 325, 111 S. Ct. 1267). While [plaintiff
bears] the burden of establishing that [its]
claims [fall] within the scope of the FTCA,
the [United States has] the burden of showing
that the discretionary function exception
[applies]. Id. at 333.
Middleton v. United States Fed. Bureau of Prisons, 658 F. App’x
167, 169 (3d Cir. 2016).
Regarding federal inmate work assignments, the Third
Circuit has found that
[t]he act of assigning an inmate to a prison
job involves an element of judgment or choice.
. . . [BOP’s] policy on work assignments
states that such assignments should be made
“with consideration of the institution’s
security and operational needs, and should be
consistent with the safekeeping of the inmate
and protection of the public.” [Middleton v.
United States, No. 13-1085, 2015 WL 5178070,
at *3 (M.D. Pa. Sept. 3, 2015).] Turning to
Gaubert’s second step . . . the assignment of
work
is
intended
to
promote
inmate
rehabilitation and the facility’s security
needs. Accordingly[,] the assignments given to
the inmates by [BOP] staff were covered by the
discretionary function exception.
More specifically, . . . the BOP exercises
discretion in assigning inmates to work
details, and . . . such decisions are
essentially grounded in “policy related
analysis.” See Santana–Rosa v. United States,
335 F.3d 39, 43–44 (1st Cir. 2003). The
decision about what duties were appropriate
for [a particular inmate] was based on the
20
same
“policy
related
analysis.” . . .
Accordingly,
the
discretionary
function
exception [applies] to . . . negligent
supervision claims . . . .
Middleton v. United States Fed. Bureau of Prisons, 658 F. App’x
167, 170 (3d Cir. 2016).
It follows, then, that the assignment of Mr. Hopson to a
work duty that included the operation of a forklift at the FCI
Fort Dix warehouse is a discretionary function for the same
reasoning laid out by the Third Circuit in Middleton, supra.
Such an assignment includes “an element of judgment or choice,”
Gaubert, 499 U.S. at 322, and is “grounded in ‘policy related
analysis.’ Middleton, 658 F. App’x at 170 (citing Santana–Rosa,
335 F.3d at 43–44). Therefore, Plaintiff’s claims regarding the
propriety of assigning inmates to operate forklifts at FCI Fort
Dix are barred by the discretionary function exception and the
United States’ motion for summary judgment shall be granted as
to this form of claim.
Similarly, to the extent Plaintiff asserts that the BOP
owes a special duty to provide an extra measure of public
protection when an inmate/worker is nearby, that claim is also
barred by the discretionary function exception. As argued by the
United States, (see United States’ Br. [Docket Item 39-1], 2526), questions of overall policies for security at the
intersection of the prison and the public space are
21
discretionary. Choosing to implement greater safety or security
measures at the warehouse certainly includes “an element of
judgment or choice,” Gaubert, 499 U.S. at 322, and it implicates
similar policy considerations as those described in Middleton,
658 F. App’x at 170, and Santana–Rosa, 335 F.3d at 43–44,
including facility’s security needs, budgetary concerns, and the
character of the inmate population.
Therefore, Plaintiff’s
claims regarding BOP’s duty to provide an extra measure of
public protection when an inmate/worker is nearby are barred by
the discretionary function exception and the United States’
motion for summary judgment shall be granted as to this form of
claim. Accordingly, summary judgment is granted on Count Six.
f.
Count Seven – Negligence of John Does. Plaintiff
brings suit in Count Seven against John Does 1-20 (fictious
names) for injuries sustained by Plaintiff as a result of
negligence on the part of the John Does. (Amended Complaint
[Docket Item 16], Count Seven ¶ 2-3.) However, Plaintiff
conceded at oral argument that he would consent to dismissing
Defendants John Does 1-20 (fictious names) without prejudice.
The Court shall therefore dismiss Count Seven and Defendants
John Does 1-20 (fictious names) without prejudice and the United
States shall be the only remaining defendant in this case.
8.
Conclusion. For the reasons stated above, Count Two
will be dismissed as to Defendant Hopson individually, while
22
preserving Plaintiff’s claim that Mr. Hopson’s alleged
negligence in the operation of the forklift is attributable to
the United States under the FTCA and as alleged in Count One.
Count Three will similarly be dismissed, except that Plaintiff’s
allegation that Mr. Murray was negligent in his dealings with
Plaintiff is preserved and merged into Count One, since such
negligence would be attributable to the United States. Summary
judgment is denied as to Count Four alleging that the forklift
did not sound its backup warning signal before striking
Plaintiff. Count Five is dismissed as repetitive of other
claims. Summary judgment is granted on Count Six due to the
discretionary function exception of 28 U.S.C. § 2680(a) as
applied to the decision to assign inmates to job functions
interacting with the public, including forklift operations.
Count Seven, alleging John Doe liability, is also dismissed. An
accompanying Order will be entered.
December 11, 2018
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
23
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