REED v. UNITED STATES OF AMERICA

Filing 24

OPINION. Signed by Judge Jerome B. Simandle on 9/10/2018. (dmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

LEONARDO REED,

HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 16-3994 (JBS-JS)

v.
UNITED STATES OF AMERICA,

OPINION
Defendant.

APPEARANCES:
LEONARDO REED, Plaintiff Pro Se
Register No. #10152-084
FCI FORT DIX
Inmate Mail/Parcels
EAST: P.O. Box 2000
Fort Dix, NJ 08640
CRAIG CARPENITO
United States Attorney
By: J. Andrew Ruymann
Assistant U.S. Attorney
U.S. ATTORNEY’S OFFICE
402 East State Street
Suite 430
Trenton, NJ 08608
Attorneys for Defendant United States of America
SIMANDLE, District Judge:
INTRODUCTION
Before the Court is Defendant United States of America’s
motion for summary judgment on Plaintiff Leonardo Reed’s Federal
Tort Claims Act (“FTCA”) complaint. Motion, Docket Entry 44.
Plaintiff Leonardo Reed has not opposed the motion. The motion

is being decided on the papers pursuant to Federal Rule of Civil
Procedure 78. For the reasons set forth below, the motion is
granted.
Plaintiff’s complaint stems from an injury he received at
FCI Fort Dix, a federal correctional facility maintained by the
Bureau of Prisons (“BOP”), when he cut himself on razor wire
located alongside of an interior fence while retrieving a
softball during recreation time. The principal issues to be
decided are whether the Court lacks jurisdiction over the
complaint because (1) Plaintiff failed to include in his FTCA
notice of claim form an allegation that BOP staff negligently
ordered or tasked him to retrieve the softball from within the
wire, and (2) the decision to place razor wire alongside of the
interior fence falls within the discretionary function exception
to the FTCA’s waiver of sovereign immunity.
The Court finds that Plaintiff has not made an allegation
that BOP staff negligently ordered or tasked him to retrieve the
softball (either in his administrative tort claim or in this
case), and that the discretionary function exception applies to
his allegation that federal officials negligently placed the
razor wire that caused his injury. The Court therefore lacks
jurisdiction over the FTCA complaint, and the Court will grant
the summary judgment motion for the reasons stated below.

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II. BACKGROUND
A. Procedural History
Plaintiff filed this complaint on July 1, 2016. The Court
granted his in forma pauperis application on July 11, 2016.
Docket Entry 2. On July 18, 2016, the Court conducted a
preliminary screening based upon the allegations in the
Complaint and permitted the FTCA claims to proceed against the
United States. Docket Entry 3.
The United States moved to dismiss the complaint under
Federal Rule of Civil Procedure 12(b)(6), Motion to Dismiss,
Docket Entry 9, which the Court denied on June 26, 2017. Docket
Entry 13.
On February 15, 2018, the United States moved for summary
judgment. Plaintiff did not file opposition to the motion.
B. Statement of Facts
1. Allegations in Pleadings
Plaintiff alleges the BOP was negligent in placing razor
wire in various locations throughout the facility in areas that
are accessible to inmates, including but not limited to the
recreation area on the “wrong side of the fences.” Complaint ¶¶
12-13. Plaintiff alleges that several inmates have received
injuries due to the placement of the wire, which “generally
reaches to just above knee level with some areas reaching face
level.” Id. ¶¶ 15-16.
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According to the complaint, Plaintiff was playing softball
in the Fort Dix recreation yard on June 22, 2015 when a ball
fell into an area “within the razor wire.” Id. ¶ 27. The
complaint asserted that the softball commonly fell within the
wires. Id. ¶ 24. Plaintiff further alleged that “[i]nmates are
tasked with retrieving the balls from within the razor wire[,]”
and that “[s]everal inmates have previously been cut while
retrieving the ball from within the razor wire.” Id. ¶¶ 25-26.
Plaintiff alleges the razor wire cut into his left wrist
when he retrieved a softball on June 22, 2015. Id. ¶¶ 28-29. The
cut caused heavy blood loss, and “medical staff feared that an
artery may have been cut.” Id. ¶¶ 29, 32. Plaintiff was left
with a “½ inch keloid type scar.” Id. ¶ 33.
Plaintiff alleges his injury was caused by the negligence
of BOP staff in placing razor wire around Fort Dix.
2. Defendant’s Statement of Material Facts
According to the United States, Plaintiff warming up for
the softball game on June 22, 2015 between 5:30 p.m. and 6:30
p.m. with his team’s catcher. Defendant’s Statement of Material
Facts (“DSOF”), Docket Entry 23-2 ¶ 2. BOP Recreation Specialist
Dekovin McCaulley was supervising the game. Id. ¶ 3. During the
warm-up, a ball bounced off Plaintiff’s glove and rolled into
the razor wire located at the base of a fence between the soccer

4

field and the softball field. Id. ¶ 4. See also Docket Entry 236 at 6-9.
Upon seeing the ball within the razor wire, Plaintiff asked
McCaulley if he could retrieve the ball; McCaulley told
Plaintiff to “‘go ahead.’” DSOF ¶ 6. According to the United
States, Plaintiff testified at his deposition that other balls
were available on the field as other inmates were using them to
warm up before the game. He also testified that “‘the most
logical thing to do’ would have been to use a softball bat” to
retrieve the ball from the wire. Id. (quoting Deposition
Transcript, Docket Entry 23-4 18-22, 39, 65-66). Plaintiff
stated at his deposition that McCaulley did not order him to
retrieve the ball. Id. Plaintiff decided to use his bare hand to
retrieve the ball on his own. Id. ¶ 10. Plaintiff was cut by the
wire and went to the medical unit for treatment. Id. ¶ 12. BOP
medical staff cleaned the wound and gave Plaintiff a Band-Aid.
Id.
On September 28, 2015, Plaintiff submitted an
administrative tort claim to the BOP under the FTCA. Id. ¶ 23.
See also Docket Entry 1-3. Plaintiff argued in his
administrative claim that BOP officials were negligent in their
placement of razor wire around Fort Dix, not that BOP officials
negligently “tasked or ordered” him to retrieve the ball. Id. ¶

5

15. The BOP denied Plaintiff’s administrative claim on March 25,
2016. Id. ¶ 17.
The United States argues razor wire was placed on the
ground at the base of the interior fences due to security
concerns at Fort Dix. Id. ¶ 26. According to Michael Bond,
Facilities Manager at Fort Dix, Fort Dix’s perimeter fences are
near publicly accessible areas. Id. Fort Dix also has interior
fences, known as “slow-down fences,” within the perimeter
fences. Id. It is one of these “slow-down fences” that runs
between the softball and soccer fields and upon which Plaintiff
was injured. See Docket Entry 23-6 at 6-9.
Mr. Bond states that “[p]rior to the installation of the
razor wire at the base of the interior fences, inmates were
cutting holes in the interior fences to get closer to the
perimeter fences so that they could retrieve contraband thrown
or propelled over the perimeter fencing by outside accomplices.”
DSOF ¶ 26. Accordingly, Mr. Bond consulted in 2011 with Donna
Zickefoose, former Fort Dix Warden; Hal Sutherland, former
Associate Warden; and Janel Fitzgerald, former Captain, to
determine steps to combat the increasing amount of contraband,
including but not limited to cellphones and drugs, in Fort Dix.
Id. ¶¶ 26-27. They concluded that placing razor wire on the
ground of the interior fences would deter inmates from cutting
the fences and make it more difficult for inmates to obtain
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contraband from the area between the interior and perimeter
fences. Id. ¶ 27.
The parties involved in making the determination to place
razor wire on the inside of the interior fences determined razor
wire was a cost-effective way to combat the contraband problem
and that the benefits to institutional security and control
outweighed the possible risks of the placement of razor wire.
Id. ¶ 31. No federal statute, regulation, or directive
prohibited placing razor wire on the interior fences in 2011.
Id. ¶ 28. The razor wire was installed on all interior fences on
Fort Dix’s East and West Compounds between the end of 2011 and
Spring 2013. Id. ¶ 33. “The height of the razor wire placed on
the ground varies from location to location and ranges from
about 12 inches to about 5 feet in height.” Id. ¶ 32.
III. STANDARD OF REVIEW
Where, as in the instant case, a summary judgment motion is
unopposed, Rule 56(e)(3) still requires the Court to satisfy
itself that summary judgment is proper because there are no
genuine disputes of material fact and the movant is entitled to
judgment as a matter of law. See also Anchorage Assocs. v.
Virgin Islands Bd. of Tax Review, 922 F.2d 168, 175 (3d Cir.
1990) (interpreting prior version of Rule 56). Federal Rule of
Civil Procedure 56(a) generally provides that the “court shall
grant summary judgment if the movant shows that there is no
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genuine dispute as to any material fact” such that the movant is
“entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a).
A “genuine” dispute of “material” fact exists where a
reasonable fact finder's review of the evidence could result in
“a verdict for the non-moving party” or where such fact might
otherwise affect the disposition of the litigation. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over
irrelevant or unnecessary facts, however, fail to preclude the
entry of summary judgment. Id. Conclusory, self-serving
submissions cannot alone withstand a motion for summary
judgment. Gonzalez v. Sec'y of Dept. of Homeland Sec., 678 F.3d
254, 263 (3d Cir. 2012) (internal citations omitted). Further,
in an unopposed motion, a movant who files a proper Local Civil
Rule 56.1 statement of undisputed material facts receives the
benefit of the assumption that such facts are admitted for
purposes of the summary judgment motion. See L. Civ. R. 56.1
(providing that “any material fact not disputed shall be deemed
undisputed for the purposes of the summary judgment motion”).
Accordingly, where a properly filed and supported summary
judgment motion is unopposed, it would be an exceptional case
where the court concludes that summary judgment should
nonetheless be denied or withheld, although the Court has

8

discretion to do so if unsatisfied that the law and facts point
to judgment as a matter of law.
IV. ANALYSIS
“As the Supreme Court has stated, ‘[t]he United States, as
sovereign, is immune from suit save as it consents to be sued,
and the terms of its consent to be sued in any court define that
court's jurisdiction to entertain the suit.’” CNA v. United
States, 535 F.3d 132, 140–41 (3d Cir. 2008), as amended (Sept.
29, 2008) (quoting United States v. Sherwood, 312 U.S. 584, 586
(1941)) (alteration in original). The FTCA acts as a limited
waiver of that immunity, “and permits suits against the United
States for torts committed by ‘any employee of the Government
while acting within the scope of his office or employment, 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.’” S.R.P. ex rel.
Abunabba v. United States, 676 F.3d 329, 332 (3d Cir. 2012)
(quoting 28 U.S.C. § 1346(b)(1)).1

1

If the Court had jurisdiction over the claim, New Jersey
substantive law would govern. See F.D.I.C. v. Meyer, 510 U.S.
471, 478 (1994). Under New Jersey law, “[t]he fundamental
elements of a negligence claim are a duty of care owed by the
defendant to the plaintiff, a breach of that duty by the
defendant, injury to the plaintiff proximately caused by the
breach, and damages.” Robinson v. Vivirito, 86 A.3d 119, 124
(N.J. 2014).
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The United States moves for summary judgment on two issues
impacting this Court’s jurisdiction over the FTCA claim: whether
Plaintiff exhausted his administrative remedies and whether the
discretionary function exception applies. As the Court finds in
favor of the United States on both questions as a matter of law,
the Court lacks jurisdiction over the complaint.2
A.

Administrative Remedies
Before filing a suit in federal court, a plaintiff suing

under the FTCA must present the offending agency, in this case
the BOP, with notice of the claim, including a “sum certain”
demand for monetary damages. White–Squire v. U.S. Postal Serv.,
592 F.3d 453, 457 (3d Cir. 2010). “Because the requirements of
presentation and a demand for a sum certain are among the terms
defining the United States's consent to be sued, they are
jurisdictional.” Id. (citing United States v. Sherwood, 312 U.S.
584, 587 (1941)). These requirements cannot be waived. Id.
(citing Bialowas v. United States, 443 F.2d 1047, 1049 (3d Cir.
1971)).
The United States argues Plaintiff failed to comply with
the notice provision of the FTCA because his notice of claim
form did not reference any negligence on the part of BOP

2

The Court does not reach the United States’ proximate cause
argument because the Court lacks jurisdiction over the
complaint.
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employees for their alleged “ordering or tasking” Plaintiff to
retrieve the ball from the razor wire. Thus, according to the
United States, the Court lacks jurisdiction over the complaint
to the extent it raises negligence claims based on those alleged
actions.
The Court does not read the complaint as raising negligence
claims based on any alleged “ordering or tasking” by BOP
officials even under the liberal standard it is required to
provide to pro se plaintiffs. Plaintiff clearly articulated in
his complaint that he believed “BOP staff . . . breached the
duty of care owed to [him] to provide him with safekeeping, care
and protection, by negligently placing razor wire on the floor
where he can be, and was, harmed by it.” Complaint ¶ 34. The
alleged “order” or “task” may have impacted whether Plaintiff
“voluntarily” retrieved the ball, but the Court does not
interpret the complaint as raising the alleged “order” or “task”
as a separate claim of negligence.
Regardless, to the extent the complaint could be construed
as raising that theory of negligence the Court lacks
jurisdiction over it because Plaintiff did not present it to the
BOP in his notice of tort claim. In the “Basis of Claim” section
of the form, Plaintiff wrote that “the West Side Fort Dix
institution has improperly and negligently placed razor wire
throughout the institution in areas accessible to inmates . . .
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.” FTCA Claim Form, Docket Entry 1-3 at 2. “The razor wire has
simply been negligently placed on the wrong side of the fences
and generally reaches to knee level with several areas reaching
face level.” Id. He does not assert BOP staff directed him to
retrieve the ball. Id. “Although an administrative claim need
not propound every possible theory of liability in order to
satisfy section 2675(a), . . . a plaintiff cannot present one
claim to the agency and then maintain suit on the basis of a
different set of facts.” Deloria v. Veterans Admin., 927 F.2d
1009, 1011–12 (7th Cir. 1991); accord Roma v. United States, 344
F.3d 352, 362 (3d Cir. 2003).
Because Plaintiff did not include any allegation that BOP
staff were negligent for “ordering” or “tasking” him with
retrieving the softball in his notice of claim form, the Court
lacks jurisdiction over any negligence claim against the United
States based on that alleged order or task.
B. Discretionary Function Exception
The United States argues the Court lacks jurisdiction over
Plaintiff’s claim regarding the placement of the razor wire
because the placement of razor wire within a prison facility is
a discretionary function. Under the FTCA, discretionary
functions are excluded from the waiver of sovereign immunity:
The provisions of this chapter and section 1346(b) of
this title shall not apply to — Any claim based upon an
act or omission of an employee of the Government,
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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 exception “immunizes from secondguessing ‘legislative and administrative decisions grounded in
social, economic, and political policy.’” S.R.P. ex rel.
Abunabba v. United States, 676 F.3d 329, 332 (3d Cir. 2012)
(quoting Gotha v. United States, 115 F.3d 176, 179 (3d Cir.
1997)). “Although a plaintiff bears the burden of establishing
that his claims fall within the scope of the FTCA's waiver of
the federal government's sovereign immunity . . ., the
Government has the burden of proving the applicability of the
discretionary function exception.” Id. at 333 (citing Merando v.
United States, 517 F.3d 160, 164 (3d Cir 2008)).
First, the Court must identify the challenged conduct.
Merando, 517 F.3d at 165. From the uncontested record before the
Court, there is no question that the challenged conduct is the
decision of BOP employees to place razor wires on the inside of
the interior fences. The complaint alleges that “Reed suffered a
stabbing wound, blood loss and a permanent scar due to BOP
employee negligence in placing razor wire on the floor in a
recreation area, in breach of the BOP duty of care owed to

13

Reed.” Complaint ¶ 9. Plaintiff’s FTCA notice of claim form
states as the basis of his claim:
the West Side Fort Dix institution has improperly and
negligently placed razor wire throughout the institution
in areas accessible to inmates where they can be harmed
by it, including by Commissary, R&D, Records, Food
Service, Facilities and recreation areas. The razor wire
has simply been negligently placed on the wrong side of
the fences and generally reaches to knee level with
several areas reaching face level.
FTCA Claim Form, Docket Entry 1-3 at 2. Furthermore, Plaintiff
testified during his deposition that he brought this lawsuit
because he felt “the wire shouldn’t be there at all . . . .”
Deposition Transcript 41:23-24. It is clear that the sole
conduct challenged by Plaintiff is the decision to place razor
wire in areas of Fort Dix that allegedly pose dangers to
inmates.
Having identified the challenged conduct, the Court must
now conduct a two-step inquiry to determine whether the
discretionary function exception applies. S.R.P., 676 F.3d at
333. In order to qualify for the discretionary function
exception, the challenged conduct must be “discretionary.”
“[T]he discretionary function exception will not apply when a
federal statute, regulation, or policy specifically prescribes a
course of action for an employee to follow. In this event, the
employee has no rightful option but to adhere to the directive.”
Berkovitz v. United States, 486 U.S. 531, 536 (1988).

14

“[T]he duty of care owed by the Bureau of Prisons to
federal prisoners is fixed by 18 U.S.C. § 4042 . . . .” United
States v. Muniz, 374 U.S. 150, 164–65 (1963).

Under that

statute:
The Bureau of Prisons, under
Attorney General, shall —
(1)

the

direction

of

the

have charge of the management and regulation of all
Federal penal and correctional institutions;

(2) provide suitable quarters and provide for the
safekeeping, care, and subsistence of all persons
charged with or convicted of offenses against the United
States, or held as witnesses or otherwise;
(3) provide for the protection, instruction, and
discipline of all persons charged with or convicted of
offenses against the United States
18 U.S.C. § 4042(a)(1)-(3). “As noted by the Eleventh Circuit,
these provisions ‘do not mandate a specific, non-discretionary
course of conduct,’ but rather leave the BOP ‘ample room for
judgment.’” Santana-Rosa v. United States, 335 F.3d 39, 44 (1st
Cir. 2003) (quoting Cohen v. United States, 151 F.3d 1338, 1343
(11th Cir. 1998)). See also Rodriguez v. United States, 695 F.
App'x 669, 673 & n.4 (3d Cir. 2017) (noting that “it appears
that every Court of Appeals to have addressed the issue
precedentially has reached the same conclusion” and citing
cases). The specific placement of razor wire within Fort Dix was
not mandated by statute, but required the BOP to exercise an
“element of judgment or choice.” Berkovitz, 486 U.S. at 536. But

15

see Gray v. United States, 486 F. App’x 975 (3d Cir. 2012)
(holding inmate’s FTCA claim not barred by discretionary
function exception due to prison policy requiring officers to
collect razors at the end of shower time). The first part of the
inquiry is satisfied.
Next, the Court must consider “whether that judgment is of
the kind that the discretionary function exception was designed
to shield.” Berkovitz, 486 U.S. at 536. “Only those decisions
‘susceptible to policy analysis’ are protected by the
exception.” S.R.P. ex rel. Abunabba v. United States, 676 F.3d
329, 336 (3d Cir. 2012) (quoting United States v. Gaubert, 499
U.S. 315, 325 (1991)). “In other words, there must be a
‘rational nexus’ between the Government's decision and ‘social,
economic, and political concerns.’” Id. (quoting Cestonaro v.
United States, 211 F.3d 749, 759 (3d Cir. 2000)).
The Supreme Court has previously stated that “[r]unning a
prison is an inordinately difficult undertaking that requires
expertise, planning, and the commitment of resources . . . .”
Turner v. Safley, 482 U.S. 78, 84–85 (1987) (internal citations
and quotation marks omitted). The United States has submitted
evidence, uncontested by Plaintiff, indicating that the decision
to place razor wire along the interior fences was a policy
decision made in response to the growing problem of contraband
in FCI Fort Dix. According to Fort Dix Facilities Manager
16

Michael Bond, contraband, including cellphones and drugs, was
being thrown over the perimeter fences onto Fort Dix FCI
property prior to the installation of the razor wire in 2011.
Declaration of Michael Bond (“Bond Dec.”), Docket Entry 23-9 ¶
5. Inmates would then cut holes in the interior “slow-down”
fences to retrieve the contraband and bring it back into the
facility. Bond and other Fort Dix officials came up with the
cost-effective solution of placing razor wire along the interior
fences to deter inmates from cutting holes in them. Id. ¶¶ 6,
10. These officials included the warden at the time, Donna
Zickefoose; Hal Sutherland, the Associate Warden; and Janel
Fitzgerald, former Captain. Id. The officials notified the BOP
Northeast Regional Office of their decision to place razor wire
along the interior fences once it was made. Id. ¶ 9.
The uncontested record before the Court shows that BOP
officials used their judgment as to the best way to combat
contraband within Fort Dix, a significant policy concern, and
that they designed and installed this barrier to address those
security needs. The United States has carried its burden of
proof in showing the discretionary function exception applies;
therefore, the Court lacks jurisdiction over the complaint under
the FTCA. The summary judgment motion is granted.

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V.

CONCLUSION
For the reasons stated above, the United States’ motion for

summary judgment is granted. An appropriate order follows.

September 10, 2018
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

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