Young v. The United States
Filing
46
OPINION AND ORDER granting 43 Motion to Dismiss for Lack of Subject Matter Jurisdiction. Ordered by Judge Allyne R. Ross on 3/20/2014. (Rubin-Wills, Jessica)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------------LYNDON CHRISTOPHER YOUNG,
Plaintiff,
-againstTHE UNITED STATES,
Defendant.
--------------------------------------------------------------------ROSS, United States District Judge:
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12-CV-2342 (ARR) (SG)
NOT FOR PRINT
PUBLICATION
OPINION AND ORDER
Plaintiff Lyndon Christopher Young brings this suit under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680, for personal injuries arising out of an incident that
occurred while he was in federal immigration custody in 2009. Defendant United States of
America has moved to dismiss the complaint for lack of subject matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(1) or, in the alternative, for summary judgment. For the
reasons set forth below, I find that the court lacks subject matter jurisdiction over two of
plaintiff’s negligence claims because plaintiff did not satisfy the FTCA’s presentment
requirement, and the court lacks subject matter jurisdiction over the remaining negligence claim
because it is barred by the FTCA’s discretionary function exception. Accordingly, defendant’s
motion is granted and the complaint is dismissed for lack of subject matter jurisdiction.
BACKGROUND
I.
Plaintiff’s Cell Assignment
The following facts are undisputed unless otherwise noted. Plaintiff was detained on
federal immigration charges from 2007 to November 2009 at Federal Detention Center Oakdale
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(“FDC Oakdale”) in Louisiana. Def.’s Local Rule 56.1 Statement of Undisputed Facts (“Def.’s
Facts”), Dkt. #43, Ex. 2, ¶¶ 1-2. During part of plaintiff’s detention at FDC Oakdale, he was
placed in the Special Housing Unit (“SHU”), a unit with increased security designed to house
inmates who commit rule infractions. Id. ¶¶ 3, 10. Between July 6, 2009, and August 4, 2009,
plaintiff shared a cell in the SHU with inmate Bebb Okitapoy. Id. ¶ 39.
Plaintiff asserts that he made multiple complaints to FDC Oakdale staff members
expressing his safety concerns about sharing a cell with Okitapoy. He did not know Okitapoy
prior to their assignment to the same cell in the SHU. Decl. of Adanna U. Ugwonali (“Ugwonali
Decl.”), Dkt. #45, Ex. 3, Dep. of Lyndon Young (“Pl. Dep.”) 180. Plaintiff testified that when an
FDC Oakdale officer brought plaintiff to the SHU for the first time, plaintiff saw Okitapoy in the
cell “making a lot of noise” and was concerned about “the way he was acting.” Id. at 178.
Plaintiff told the officer, Tony King, that he did not want to share a cell with Okitapoy, but he
testified that King “just smiled and put me with him.” Id. Plaintiff testified that during the period
that he and Okitapoy shared a cell, Okitapoy threatened to harm him on about two occasions. Id.
at 91. Okitapoy told plaintiff not to sleep because he would hurt him while he was sleeping. Id. at
77. Plaintiff testified that he filled out written complaint forms, known as “cop-out forms,” in
which he described Okitapoy’s threats, stated that he feared his life was in danger, and asked for
a transfer to a different cell. Id. at 76-77. He recalls filing “a couple” of cop-out forms, but he
does not remember exactly how many he filed and did not keep copies. Id. at 76. He testified that
FDC Oakdale staff did not respond to the cop-out forms. Id. at 77. Plaintiff also testified that “a
couple of times” he told officers on duty that his cellmate was threatening him and asked to be
moved to a different cell. Id. at 78-79. He testified that the officers told him to speak to
supervising officer Frederick Cobb. Id. at 78. Plaintiff testified that every time Cobb performed
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rounds, plaintiff would complain to him about his cellmate, but Cobb told him that he would
have to wait until the monthly “shift change” when inmates would be moved to different cells.
Id. at 79-80.
Defendant denies that FDC Oakdale staff received complaints from plaintiff about his
cellmate. Both King and Cobb testified that they did not recall plaintiff making complaints about
Okitapoy. Decl. of Matthew Silverman (“Silverman Decl.”), Dkt. #44, Ex. E, Dep. of Tony King
(“King Dep.”) 12-14; Ex. C, Dep. of Frederick Cobb (“Cobb Dep.”) 23. Mark Gutierrez, who
was at the time the unit manager, testified that inmates’ reports of threats from other inmates are
typically sent to a lieutenant to investigate. Silverman Decl., Ex. F, Dep. of Mark Gutierrez
(“Gutierrez Dep.”) 22-24. If the lieutenant determined that there was “some actual justification
that there was an issue,” the report would be sent to the Special Investigative Supervisor (SIS)
for an investigation. Id. at 43-44. Gutierrez testified that in his role as unit manager he made
weekly rounds in the SHU to hear any complaints from inmates, and he does not recall that
plaintiff complained to him about wanting to switch his cell. Id. at 40. Lieutenant Brian Webb
asserts that the SIS department has no record of a complaint from plaintiff regarding his
placement with Okitapoy. Decl. of Brian Webb (“Webb Decl.”), Dkt. #44, Ex. 7, ¶ 27.
II.
Incident on August 4, 2009
There is no dispute that an incident occurred between plaintiff and Okitapoy on the
morning of August 4, 2009. Plaintiff testified that Okitapoy was using the toilet in the cell and
had his hands in the toilet. Def.’s Facts ¶ 54. Plaintiff asked Okitapoy to flush the toilet because
it was starting to smell, and Okitapoy took his hands out of the toilet and flung something at
plaintiff, causing plaintiff to feel a “splash.” Id. Okitapoy then rushed at plaintiff, grabbed him
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by the jumpsuit, and head butted him. Id. ¶ 55. Plaintiff fell straight back and hit his head on the
bunk bed and floor. Id. Plaintiff testified that he may have been “knocked out” temporarily and
felt “dizzy.” Pl. Dep. 105. When plaintiff revived, he saw that Okitapoy was on top of him and
that plaintiff’s right foot was facing backwards. Id. at 105-07. Plaintiff testified that Okitapoy
was not hitting him but was holding plaintiff’s jumpsuit so that plaintiff could not move. Id. at
107. Plaintiff testified that he did not feel pain at this time and only felt pain later when officers
pulled Okitapoy off of him. Id.
The record does not clearly establish how long it took for the officers to intervene.
Plaintiff testified that he heard other inmates in the unit calling for officers to come and assist. Id.
at 108. Plaintiff testified that he may have been knocked out for about two or three minutes, then
after he revived and found Okitapoy on top of him, it took about eight minutes for officers to
enter his cell. Id. at 110. He also testified that he saw an officer at the window of the cell telling
Okipatoy to get off him, then, about five minutes later, four or five officers entered the cell
wearing “riot gear” and carrying shields and batons. Id. at 111-12. Plaintiff testified that after the
officers entered the cell, it took about three minutes for them to pull Okipatoy off plaintiff. Id. at
113. For their part, Senior Officer Joseph Manuel and Senior Officer M.B. Cole reported that
they responded to the cell, heard screaming, and saw Okitapoy on top of plaintiff holding him
down. Webb Decl., Ex. 2-3. The officers called for assistance and waited for Lieutenant Webb
and other staff members to arrive. Id. Manuel testified that it would have taken no more than a
minute and a half for officers to arrive at the scene. Silverman Decl., Ex. D, Dep. of Joseph
Manuel (“Manuel Dep.”) 15-16. Webb asserted that he responded to the incident as soon as he
heard about it on the radio and that it would have taken him less than three minutes to get to
plaintiff’s cell, even from the farthest point on the FDC Oakdale grounds. Webb Decl. ¶¶ 28-29,
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31. Webb stated that once he arrived on the scene, he waited for enough staff members to arrive
before ordering that they enter the cell. Id. at ¶ 31.
It is undisputed that once the officers entered the cell, they pulled Okitapoy off plaintiff,
restrained both plaintiff and Okitapoy, and sent both of them for medical assessment. Def.’s
Facts ¶¶ 65-66. Around 8:45 a.m., staff at the SHU assessed plaintiff’s injuries and provided
treatment, then moved him to FDC Oakdale’s Health Services Unit for further treatment. Id. ¶
67. An ambulance then took plaintiff to a local hospital for further evaluation and treatment of
an injury to his right leg. Id. According to hospital records, doctors diagnosed plaintiff with
fractures in his right leg and performed surgery. Ugwonali Decl., Ex. 7. When plaintiff returned
from the hospital to FDC Oakdale, he was placed in a cell by himself and was no longer housed
with Okitapoy. Pl. Dep. 80.
III.
Plaintiff’s FTCA Claim
Plaintiff was deported to his native country of Trinidad in November 2009 and returned
to the United States on May 18, 2011. Def.’s Facts ¶ 2. After plaintiff returned to the United
States, while he was in federal immigration custody at LaSalle Detention Facility (“LaSalle”) in
Louisiana, he filed a claim with the federal government regarding the injuries he sustained at
FDC Oakdale. Pl. Dep. 139-40.
Plaintiff filed his claim by filling out a “Claim for Damage, Injury, or Death, Standard
Form 95” (“SF 95”). Ugwonali Decl., Ex. 9. On the form, plaintiff stated that his claim
concerned an incident that occurred on August 4, 2009, at 10:45 a.m. Id. Section 8 of the form,
labeled “Basis of Claim,” instructs claimants to “[s]tate in detail the known facts and
circumstances attending the damage, injury, or death, identifying persons and property involved,
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the place of occurrence and the cause thereof.” Plaintiff’s response to this section, in full,
consisted of the following statement:
[P]ain and suffering $10,000.00 dollars per day. Psycological [sic] trauma
“mentally and emotionally punitive damages” $10,000.00 per day, Negligent in
ICE security custody. $10,000.00 per day, occurred at F.D.C. P.o. Box 5010,
Oakdale, la 71463.
Id. In the section of the form labeled “State the nature and extent of each injury or cause of
death, which forms the basis of the claim,” plaintiff wrote: “[B]odily damage extreme injury
continuous pain and suffering—see medical records from incident in Oakdale F.D.C, MR lyndon
young inplate of a stainless steel rod.” Plaintiff continued this answer on a separate typed page
on which he stated: “My right leg bone was drilled from my knees down to my ankle and
implanted with a stainless steel rod that was placed with three pins holding the bone together,
based on my injury I need to seek disability and medical coverage.” Id. Plaintiff signed this
separate page and dated it May 31, 2011. Id. At the bottom of the SF 95, in the section entitled
“Amount of Claim (in dollars),” plaintiff filled in the box for “Personal Injury” with the phrase
“Bodily harm” and filled in the box for “Total” with “$20,650.000.” Id. Plaintiff testified that he
typed his answers onto the form himself with assistance from a fellow inmate in LaSalle who
helped inmates with legal issues. Pl. Dep. 140-41. He sent the form from LaSalle by certified
mail to the Department of Homeland Security, U.S. Immigration and Customs Enforcement
(“ICE”). Id. at 139, 146-47. On July 22, 2011, the Federal Bureau of Prisons (“BOP”) sent
plaintiff a letter acknowledging that ICE received the claim on June 8, 2011, and forwarded it to
the BOP for processing. Ugwonali Decl., Ex. 10.
Plaintiff testified that he also sent a handwritten letter to ICE with additional details about
his claim. Ugwonali Decl., Ex. 8. In the handwritten letter, dated June 6, 2011, and addressed to
“chief counsel,” plaintiff asked ICE to acknowledge receipt of his tort claim. Id. He also stated:
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On Aug 04, 2009 at 10:45 am, whiles being in Protected Custody my cell mate
who is mentaly disturb attacted me causing me bodily damage to my left eye and
nose by a head bott causing my eye to swell and nose to bleed. I slip and fell
whiles on the floor I heard other inmates from other Cells Calling for the Staff
Employes to help me that’s when I notice my right leg was broken, it was
approximately 7 to 8 minutes it took the Officers to come to my Aid when they
came to the Cell they ask the disturb inmate to get off me he answer back saying
no they then rushed in the Cell and grabed him off me, it took the Ambulance 15
minutes to get to the Facility, I then was tooken at Christus St Frances Cabrini
Hospital at Alexandria, LA, and was rushed for Emergency Surgury . . . . I told
the C.O.’s not to put me together with that inmate but they still put me with him.
Id. Plaintiff also provided his contact information. Id. In his deposition, plaintiff initially testified
that he wrote this handwritten letter before he filled out the SF 95, to make sure he “wrote it
properly” before typing the information onto the form. Pl. Dep. 147. Plaintiff testified that he
included just a “brief” description on the typed claim form and that he also enclosed the
handwritten letter with his claim form to give “a rundown of what happened.” Id. at 148. After
further questioning regarding the dates on the SF 95 and the handwritten letter, plaintiff stated
that he had sent two different mailings to ICE and had only received an acknowledgement of
receipt for one of the mailings, but he could not remember what documents he had included in
each mailing. Id. at 158-59. Plaintiff later testified that he had written the handwritten letter on
June 6, 2011, and had sent the letter by certified mail two or three days later. Id. at 176-77. He
testified that the staff at the mail room at LaSalle gave him receipts when he mailed letters, but
he no longer has the receipts because he could not take his paperwork with him when he left the
detention center. Id. at 152.
Defendant asserts that the government never received plaintiff’s June 6 handwritten
letter. Defendant submitted a declaration from Steven G. Ohrvall, an Associate Legal Advisor in
the ICE department that is responsible for reviewing all FTCA claims submitted to ICE. Decl. of
Steven G. Ohrvall, Dkt. #44, Ex. 4, ¶¶ 1-2. Ohrvall states that all administrative claims, including
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ones addressed to “Office of Chief Counsel,” would be forwarded to his office for processing. Id.
¶ 2. He states that a review of ICE records shows that ICE received one FTCA claim from
plaintiff, consisting of a SF 95 and a one-page typed attachment that was signed on May 31,
2011. Id. ¶¶ 4-5. Ohrvall states that “ICE records contain no further correspondence from
Plaintiff or his attorneys regarding this tort claim.” Id. ¶ 7. Defendant also submitted a
declaration from Tamala Robinson, a BOP legal assistant. Decl. of Tamala Robinson, Dkt. #44,
Ex. 5, ¶ 1. Robinson states that, according to a review of BOP files, the BOP received the
following documents regarding plaintiff’s tort claim: the SF 95 and one-page typed attachment
forwarded from ICE; a letter from plaintiff dated September 26, 2011, with an updated address;
and a letter from plaintiff dated November 10, 2011, asking the BOP to forward any decision or
response to his attorneys. Id. ¶¶ 8, 10, 12. Robinson states that “[n]o further correspondence was
received from Plaintiff or his attorneys regarding this tort claim.” Id. ¶ 14.
There is no dispute that the BOP sent plaintiff a letter dated December 30, 2011,
informing plaintiff that the BOP had denied his FTCA claim. The letter states, in relevant part:
You claim government liability in the amount of twenty thousand six hundred
fifty and 00/100 dollars ($20,650.00) for alleged personal injury . . . . You appear
to claim that on August 4, 2009, staff at the Federal Correctional Complex (FCC)
in Oakdale, Louisiana, implanted a steel rod in your right leg, resulting in a
disability. An investigation into your claim revealed on August 4, 2009, you were
involved in an altercation with another inmate at FCC Oakdale. Staff completed
an injury assessment and noted a laceration on your left eyebrow, a bruise on your
lower eye, and a deformed right lower leg. You were transported to a contract
local hospital for an emergency surgical procedure to repair spiral fractures of
your right tibia and fibula . . . . No evidence supports your claim of negligence.
Bureau of Prisons staff provided timely and appropriate medical treatment for
your condition, including medication and surgery by a contract orthopedic
specialist . . . . Because no evidence indicates that you suffered any injuries
caused by the negligent or wrongful acts or omissions of any government
employee acting within the scope of employment, your claim is denied.
Ugwonali Decl., Ex. 11. The letter also advised plaintiff that he could file suit in federal district
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court within six months if he disagreed with the agency’s determination. Id.
IV.
Procedural History
Plaintiff, through counsel, brought this district court suit on May 11, 2012. Dkt. #1. In
his Second Amended Complaint, plaintiff asserts that FDC Oakdale staff members negligently
failed to protect him from the attack by his cellmate. Second Am. Compl., Dkt. #19. First,
plaintiff alleges that he made numerous complaints to staff regarding his cellmate “acting
violently, threatening plaintiff, acting indecently and acting in an unstable and frightening
manner,” but staff members did not report his complaints to the appropriate supervisors. Id. ¶ 40.
Second, plaintiff alleges that BOP staff assigned plaintiff to share a cell with an inmate who had
a “propensity for violence and mental instability” and failed to properly monitor his cellmate. Id.
¶ 47. Third, plaintiff alleges that staff “failed [to] respond to or ignored the numerous screams
and shouts for assistance, intervention and help by the plaintiff and numerous other inmates, for
ten to fifteen minutes while the plaintiff was being violently attacked by his cellmate.” Id. ¶ 53.
As a result of the “carelessness and inattentiveness” of FDC Oakdale staff, plaintiff suffered
“serious and permanent personal injuries requiring the care and treatment of physicians,
hospitalization and medication,” has been “hampered in his daily routine,” and experiences
“permanent excruciating pain while attempting or trying to carry out his daily chores.” Id. ¶¶ 57,
59. Plaintiff seeks compensatory damages, attorneys’ fees, and costs.
Defendant originally proposed filing a motion to dismiss plaintiff’s complaint for lack of
subject matter jurisdiction on the same grounds raised in the instant motion. Instead, plaintiff
amended the complaint and the parties proceeded to discovery. The parties have now engaged in
extensive fact discovery, including a deposition of plaintiff, depositions of BOP officials in
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Louisiana, and disclosure of BOP records. 1 Discovery is now complete, except that the parties
have deferred expert discovery with respect to damages. Dkt. #34.
Defendant now brings a motion to dismiss the complaint or, in the alternative, for
summary judgment. Defendant argues that the court lacks subject matter jurisdiction over this
action because plaintiff did not comply with the FTCA’s presentment requirement and because
plaintiff’s claims are barred by the FTCA’s discretionary function exception. Def.’s Mem. of
Law in Supp. of Mot. (“Def.’s Mem.”), Dkt. #43, Ex. 3. Plaintiff opposes the motion, arguing
that he adequately presented his claim and that BOP officials’ acts of negligence and
inattentiveness fall outside the scope of the discretionary function exception. Pl.’s Mem. of Law
in Opp’n to Mot. (“Pl.’s Opp’n”), Dkt. #45.
DISCUSSION
I.
Standard of Review Under Rule 12(b)(1)
“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)
when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000). As the party seeking to invoke the jurisdiction
of the court, plaintiff bears the burden of demonstrating that subject matter jurisdiction is proper
based on a preponderance of the evidence. Aurecchione v. Schoolman Transp. Sys., Inc., 426
F.3d 635, 638 (2d Cir. 2005). In resolving a motion to dismiss pursuant to Rule 12(b)(1), the
court must accept as true all material factual allegations in the complaint but will not draw
inferences favorable to the party asserting jurisdiction. J.S. ex rel. N.S. v. Attica Cent. Schs., 386
F.3d 107, 110 (2d Cir. 2004); Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir.
1998). The court may consider affidavits and other materials beyond the pleadings but cannot
1
The parties have filed portions of Okitapoy’s BOP records under seal to protect the privacy of a non-party.
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“rely on conclusory or hearsay statements contained in the affidavits.” J.S. ex rel. N.S., 386 F.3d
at 110; see also Robinson v. Gov’t of Malaysia, 269 F.3d 133, 140-41 & n.6 (2d Cir. 2001).
II.
FTCA’s Presentment Requirement
It is well settled that “[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.” United States v. Mitchell, 445 U.S. 535, 538 (1980); Dotson v.
Griesa, 398 F.3d 156, 177 (2d Cir. 2005). The FTCA provides a limited waiver of sovereign
immunity for certain types of tort claims. Celestine v. Mt. Vernon Neighborhood Health Ctr.,
403 F.3d 76, 80 (2d Cir. 2005). The statute grants federal courts exclusive jurisdiction over suits
against the United States for “personal injury . . . caused by the negligent or wrongful act or
omission of any employee of the Government while acting within the scope of his office or
employment.” 28 U.S.C. § 1346(b)(1).
The FTCA requires a plaintiff to exhaust administrative remedies before filing suit. A
claimant cannot bring a suit in federal court until he has “first presented the claim to the
appropriate Federal agency and his claim shall have been finally denied by the agency in
writing.” 28 U.S.C. § 2675(a). While the statute does not define what a claimant must do in order
to “present” a claim to the agency, the relevant federal regulation states that, for the purposes of
§ 2675, “a claim shall be deemed to have been presented when a Federal agency receives from a
claimant, his duly authorized agent or legal representative, an executed Standard Form 95 or
other written notification of an incident, accompanied by a claim for money damages in a sum
certain.” 28 C.F.R. § 14.2(a). The claimant must present the claim in writing to the federal
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agency within two years after the claim accrues. 28 U.S.C. § 2401(b). The FTCA also establishes
a six-month statute of limitations for filing suit after the agency’s final denial of the claim. Id.
The Supreme Court has explained that the purpose of the FTCA’s presentment
requirement is to reduce the burden on the judicial system by giving agencies an initial
opportunity to resolve claims before they reach the courts. McNeil v. United States, 508 U.S.
106, 111-12 (1993). Accordingly, the requirements of § 2675 must be strictly construed:
The most natural reading of the statute indicates that Congress intended to require
complete exhaustion of Executive remedies before invocation of the judicial
process. Every premature filing of an action under the FTCA imposes some
burden on the judicial system and on the Department of Justice which must
assume the defense of such actions. Although the burden may be slight in an
individual case, the statute governs the processing of a vast multitude of claims.
The interest in orderly administration of this body of litigation is best served by
adherence to the straightforward statutory command.
Id. at 112; see Milares Guiraldes de Tineo v. United States, 137 F.3d 715, 719 (2d Cir. 1998)
(“Any limitations imposed by the waiver statute, whether they be substantive, procedural, or
temporal, are to be strictly applied against the claimant.”); Keene Corp. v. United States, 700
F.2d 836, 841 (2d Cir. 1983) (“[B]ecause the FTCA constitutes a waiver of sovereign immunity,
the procedures set forth in Section 2675 must be adhered to strictly.”). The plaintiff bears the
burden of pleading and proving compliance with the requirements of § 2675. See In re Agent
Orange Prod. Liab. Litig., 818 F.2d 210, 214 (2d Cir. 1987). The presentment requirement
cannot be waived, and a federal court lacks subject matter jurisdiction over a claim that has not
been properly presented. Celestine, 403 F.3d at 82. 2
2
While plaintiff is now represented by counsel, he filed his SF 95 pro se while he was in federal custody. Pro se
claimants are held to the same strict presentment requirements of § 2675. See McNeil, 508 U.S. at 113 (“While we
have insisted that the pleadings prepared by prisoners who do not have access to counsel be liberally construed . . .
we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse
mistakes by those who proceed without counsel.”); Adeleke v. United States, 355 F.3d 144, 153 (2d Cir. 2004)
(“This procedural hurdle [in § 2675] applies equally to litigants with counsel and to those proceeding pro se.”);
Torres v. United States, No. 07-CV-1390 (NGG)(LB), 2008 WL 2157124, at *3 (E.D.N.Y. May 20, 2008) (“[T]he
presentment requirements of the FTCA apply with equal force to pro se litigants”).
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A. Sufficiency of Presentment
The Second Circuit has held that merely filing a SF 95 does not necessarily satisfy the
presentment requirement. Romulus v. United States, 160 F.3d 131, 132 (2d Cir. 1998) (per
curiam). Instead, the claim must “provide enough information to permit the agency to conduct an
investigation and to estimate the claim’s worth.” Id. (citing Keene Corp., 700 F.2d 836 at 842).
The claim does not need to satisfy formal pleading requirements, but it must “be specific enough
to serve the purposes intended by Congress in enacting § 2675(a)—to ease court congestion and
avoid unnecessary litigation, while making it possible for the Government to expedite the fair
settlement of tort claims asserted against the United States.” Johnson by Johnson v. United
States, 788 F.2d 845, 848-49 (2d Cir. 1986) (internal quotation marks omitted), overruled on
other grounds by Sheridan v. United States, 487 U.S. 392 (1988). “A claimant must provide
more than conclusory statements which afford the agency involved no reasonable opportunity to
investigate.” Romulus, 160 F.3d at 132.
Yet a claim may be sufficient even if it does not present the claimant’s specific theories
of liability or the facts underlying those theories. In Johnson by Johnson, the Second Circuit held
that a claim form alleging sexual assault by a postal service employee was sufficient to put the
agency on notice of a claim for negligent supervision. 788 F.2d at 849. 3 The Court noted:
“Although the claim supplied no facts evidencing negligent supervision and did not allege all the
factual elements of such a theory of liability, a reasonably thorough investigation of the incident
should have uncovered any pertinent information in the government’s possession relating to the
agency’s knowledge, or lack of knowledge, of any prior sexual misconduct by its employee.” Id.
Following the guidance in Johnson by Johnson, district courts in this circuit have found that
3
Defendant relies on the district court opinion in Johnson by Johnson, but the Second Circuit reversed the district
court on the issue of presentment, while affirming the district court’s dismissal of plaintiff’s suit on other grounds.
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plaintiffs properly presented claims that a reasonable government investigation should have
revealed, even if the claim forms did not include the specific facts necessary to support the claim.
See Henry v. U.S. Dep’t of Homeland Sec., No. 10-CV-2164 (JFB)(ETB), 2011 WL 477719, at
*5 (E.D.N.Y. Feb. 2, 2011) (claim alleging injury during airport screening was sufficient because
“a reasonable investigation of the claim” would look at “any involvement/responsibility or lack
thereof of [agency] personnel in the alleged conduct and injuries”); Lopez v. Zenk, No. 06-CV4601 (RJD), 2008 WL 3285895, at *3 (E.D.N.Y. Aug. 8, 2008) (“[T]he question is not whether
plaintiff asserted a claim for negligent denial of medical care, or even the facts necessary to
establish such a claim, but whether the facts asserted should have, upon investigation, uncovered
sufficient information for the Bureau of Prisons to expedite the fair settlement of the matter.”).
B. Plaintiff’s Administrative Claim
In assessing whether plaintiff properly presented his claims, the court will only consider
the information that plaintiff provided to the agency on the SF 95 and one-page typed
attachment, since it is undisputed that the agency timely received these documents from plaintiff.
Plaintiff also asks the court to consider the additional allegations that he stated in his June 6
handwritten letter, but plaintiff has not produced any evidence that the agency ever received this
letter. The majority of district courts in this circuit have held that a plaintiff must show proof that
the agency actually received a claim in order to satisfy the FTCA’s presentment requirement.
See, e.g., Jaghama v. United States, No. 11-cv-5826, 2013 WL 508497, at *2 (E.D.N.Y. Feb. 11,
2013); Torres v. United States, No. 07-CV-1390 (NGG)(LB), 2008 WL 2157124, at *3
(E.D.N.Y. May 20, 2008); Pinchasow v. United States, 408 F. Supp. 2d 138, 142 (E.D.N.Y.
2006), aff’d, No. 06-1139-CV, 2006 WL 3370714 (2d Cir. Nov. 20, 2006). Plaintiff asserted in
his deposition that he mailed the handwritten letter by certified mail, but he has no receipt or
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other evidence of mailing. Even if plaintiff could prove that he had mailed the letter, defendant
has provided declarations of two agency employees stating that their files have no record of it,
which is sufficient to establish that the agency did not receive it. See Jaghama, 2013 WL 508497,
at *3 n.2; Pinchasow, 408 F. Supp. 2d at 143; Vecchio v. United States, No. 05 Civ. 393(PAC),
2005 WL 2978699, at *5-*6 (S.D.N.Y. Nov. 3, 2005); Rodriguez v. United States, No. 02 Civ.
6947(SHS), 2003 WL 21961121, at *2 (S.D.N.Y. Aug. 14, 2003). Therefore, the court cannot
consider plaintiff’s June 6 handwritten letter in determining whether he satisfied the presentment
requirement.
In considering the sufficiency of plaintiff’s SF 95, it is clear that the form does not
mention any of his specific negligence claims. In this litigation, plaintiff identifies at least three
bases for holding the BOP liable for his injuries: they assigned him to share a cell with an
unstable cellmate, they ignored his reports of threats from his cellmate, and they responded
negligently when his cellmate attacked him. None of these theories of negligence appear on the
SF 95. Instead, the form only states that plaintiff was injured on August 4, 2009, and describes
the injuries that he suffered, without providing any explanation of how plaintiff sustained these
injuries. The form includes a general assertion, “Negligent in ICE security custody,” but does not
explain how any BOP staff members acted negligently. Based on this information, the BOP
construed plaintiff’s SF 95 as raising a claim of medical malpractice. In the denial letter, the
agency states that plaintiff challenges the fact that FDC Oakdale staff “implanted a steel rod in
your right leg, resulting in a disability.” The agency investigated the medical care that plaintiff
received after the August 4 incident, concluded that it was “timely and appropriate,” and denied
the claim. In short, then, what happened in this case is exactly what the FTCA’s presentment
requirement is supposed to prevent: plaintiff filed a vague SF 95 that the agency incorrectly
15
interpreted as a claim for medical malpractice, and plaintiff is now attempting to sue in federal
court based on theories of liability that the agency never investigated or tried to resolve.
Plaintiff argues that he properly presented all of his claims because his SF 95 asserted a
claim for negligence while he was in custody on August 4, 2009, and the BOP “actually
investigated this incident and the circumstances surrounding it.” Pl.’s Opp’n 11. Plaintiff also
contends that nothing on plaintiff’s SF 95 suggests a claim of medical malpractice, so the
agency’s interpretation of his form was unreasonable. Id. at 11-12. Defendant, in turn, argues
that the form’s generalized allegation of “negligen[ce]” cannot be read to present “any and all
factual bases and theories that extend from some non-descript ‘incident.’” Def.’s Reply Mem. of
Law (“Def.’s Reply”), Dkt. #43, Ex. 4, at 4. Both of these arguments conflate the various
theories of negligence that plaintiff now seeks to advance in this litigation, but the inquiry
regarding whether a claim was properly presented is necessarily case-specific. I will analyze
each of plaintiff’s theories of liability in turn to determine whether a reasonable investigation of
plaintiff’s SF 95 would have uncovered sufficient information for the BOP to evaluate the claim,
“avoid unnecessary litigation,” and “expedite the fair settlement of tort claims.” Johnson by
Johnson, 788 F.2d at 848-49.
1. Plaintiff’s Cell Assignment
Plaintiff’s SF 95 does not properly present the claim that BOP officials negligently
assigned him to share a cell with an unstable and dangerous inmate. His form does not even
mention his cellmate at all, let alone refer to his cellmate’s mental illness or disciplinary history.
Nothing on the form would have given the agency any notice that it should investigate BOP
officials’ decision to assign plaintiff to share a cell with Okitapoy.
16
To be sure, a reasonable investigation of plaintiff’s SF 95 would have informed the
agency that plaintiff’s cellmate caused his injuries, even though plaintiff does not provide this
information on his form. The BOP medical records include plaintiff’s statement to the treating
medical professionals regarding the cause of the injury: “Had argument with another cellmate
and altercation happened inside the cell.” Decl. of Heather Howard, Dkt. #44, Ex. 2, at ECF 4.
Indeed, the agency’s denial letter states that the government’s investigation of the claim
“revealed on August 4, 2009, you were involved in an altercation with another inmate.”
Ugwonali Decl., Ex. 11. Therefore, the government was aware that plaintiff’s claim involved an
incident with his cellmate on August 4, but the connection between this incident and the BOP’s
decision weeks earlier to place plaintiff with this cellmate is simply too attenuated to expect the
agency to anticipate this claim.
In order to present this claim to the agency, plaintiff would not be expected to specifically
assert a claim for “negligent placement,” nor would he have to assert all of the underlying facts.
Johnson by Johnson does not require this level of detail in order to satisfy the FTCA’s
presentment requirement, and certainly plaintiff had no access to specific information regarding
the BOP’s decision to place him with Okitapoy. Yet in other cases where courts have found
claim forms to be sufficient under Johnson by Johnson, plaintiffs have provided at least some
information that would alert the agency to the claim under a common-sense reading of the form.
For example, in Lopez, plaintiff’s SF 95 alleged that he was assaulted by corrections
officers, injured, and taken to the hospital. 2008 WL 3285895, at *3. The district court found that
this form sufficiently presented a claim for negligent denial of medical care, because “[a]
reasonably thorough investigation should have uncovered, at a minimum, any noteworthy delay
in securing medical treatment promptly after the incident.” Id. at *4. Indeed, even a cursory look
17
at plaintiff’s records would have shown that the assault occurred in the evening and that plaintiff
was not admitted to the hospital until the next day. Id. In Lopez, then, even though the plaintiff
did not specifically allege a delay in receiving medical care, the agency could reasonably be
expected to infer this claim by connecting the two events that his form did mention: an injury
and subsequent treatment at the hospital. Similarly, in Sovulj v. United States, the plaintiff
alleged that BOP doctors misdiagnosed her husband’s medical condition while he was in
custody. No. 98-CV-5550(FB), 2003 WL 21524835, at *1 (E.D.N.Y. July 2, 2003). Her
presentment letter to the BOP asserted a claim for her husband’s “wrongful death . . . caused by
the negligence of your facility and staff.” Id. The court found that this “skeletal” claim satisfied
the FTCA’s presentment requirements because it “was sufficient for the agency to begin
reviewing its records to investigate plaintiff’s claim.” Id. at *3. In Sovulj, the plaintiff’s claim
did not specify what type of “negligence” she alleged against BOP staff. Yet if an agency knows
that it is investigating a wrongful death claim regarding a former inmate, it is entirely reasonable
to expect the agency to investigate the medical care that the inmate received while he was in
custody. 4 In both of these cases, the claims that the plaintiffs asserted were the types of claims
that would typically arise from the facts that appeared on the face of their forms. Here, by
contrast, plaintiff provided no information on his form that would lead the agency to infer that he
might have a claim for negligent placement with an unstable cellmate.
4
Plaintiff also relies on a Ninth Circuit case, Rooney v. United States, 634 F.2d 1238 (9th Cir. 1980). In Rooney, the
plaintiff was injured in a fall while performing painting and maintenance work at an Air Force base. His claim stated
that he “sustained injuries as a result of a fall and subsequent medical care,” and also stated that government
employees “negligently and carelessly treated, transported and cared for the claimant.” Id. at 1242. The government
argued that this form presented a claim for medical malpractice but did not present a claim that government
negligence caused his fall. The court ruled that both claims were properly presented, finding that “it was not
necessary for [plaintiff] to allege in his administrative claim that the Government’s negligence caused his fall.” Id. at
1242-43. Here, just as in Lopez and Sovulj, plaintiff’s claim regarding the cause of his fall is readily apparent from a
common-sense reading of his claim form, since he referred to “injuries as a result of a fall.”
18
Plaintiff’s SF 95 was not “specific enough to serve the purpose of the FTCA to enable the
federal government to expedite the fair settlement of tort claims.” Romulus, 160 F.3d at 132. The
form failed to make any reference to plaintiff’s cellmate or his dangerousness that would put the
agency on notice of plaintiff’s claim. In light of the purposes of the FTCA presentment
requirement, and the clear guidance that the requirement must be construed strictly, I find that
plaintiff did not properly present his claim regarding his placement with his cellmate. 5
2. Plaintiff’s Prior Complaints About His Cellmate
Plaintiff’s SF 95 also fails to present his claim that BOP officials negligently ignored his
complaints about his cellmate’s prior threats. Here, too, the form does not mention that plaintiff’s
cellmate had previously threatened him or that plaintiff had made complaints to BOP officials
about his cellmate. A reasonable government investigation into the events of August 4, 2009,
would not have uncovered this claim, since the medical records and officers’ reports from the
incident make no reference to prior threats. Nothing on the SF 95 would have put the agency on
notice that it should investigate plaintiff’s history with his cellmate.
The Second Circuit’s decision in Johnson by Johnson does not require a different result.
In Johnson by Johnson, where the claim alleged sexual assault by a postal worker, the court held
that a reasonable government investigation should have addressed “the agency’s knowledge, or
lack of knowledge, of any prior sexual misconduct by its employee.” Id. at 849. Under those
facts, it was reasonable to require the agency to look into the employee’s history, since the
5
I note that, even if plaintiff’s claim regarding his placement with his cellmate had satisfied the presentment
requirement, it would be barred by the FTCA’s discretionary function exception. See supra Part III. Housing
assignments are left to the discretion of prison administrators. See 28 C.F.R. § 541.21 (inmates in the SHU “may be
housed either alone or with other inmates”) (emphasis added). Decisions about which inmates must be separated
from other inmates are susceptible to policy analysis, as they “involve a balancing of a number of public policy
considerations including the inmate safety, the ability of inmates to move about the facility, general concerns for
prison security, and the effective use of limited resources.” Ortiz v. United States, No. 01 Civ. 4665(AKH), 2002
WL 1492115, at *4 (S.D.N.Y. July 11, 2002); accord Taveras v. Hasty, No. Civ.A.CV-02 -1307 (DGT), 2005 WL
1594330, at *4 (E.D.N.Y. July 7, 2005) (claim that BOP negligently failed to segregate inmate with violent
propensities “clearly fall[s] within the discretionary-function exception”).
19
agency could only be liable for an assault by an individual employee if the agency had
negligently failed to supervise him. Here, by contrast, since plaintiff sustained injuries while he
was in federal custody, there were numerous possible bases for holding the BOP liable. The
agency cannot be expected to speculate that plaintiff might be asserting a claim regarding prior
complaints about his cellmate, since his form provided no indication of this claim.
Just as with plaintiff’s claim regarding his cell assignment, allowing this claim to go
forward would contravene the purposes of the FTCA’s presentment requirement. Plaintiff’s SF
95 only put the agency on notice that it should investigate the incident on August 4, 2009. The
form provided no notice that the agency should investigate any prior threats that plaintiff’s
cellmate had made against him or any prior complaints that plaintiff had made regarding his
cellmate. Plaintiff did not provide sufficient information to allow the agency to evaluate this
claim and expedite settlement, so this claim is barred by the FTCA’s presentment requirement.
3. Officers’ Response to August 4 Incident
By contrast, I find that plaintiff’s SF 95 did properly present his third claim that officers
responded negligently to the incident on August 4, 2009. The form put the agency on notice that
plaintiff suffered injuries at FDC Oakdale on that date. Even if the agency construed the form as
a medical malpractice claim, a reasonable investigation should have included an inquiry into
what led plaintiff to receive medical attention on that day. Once the agency knew that the
plaintiff’s injuries arose from an incident with his cellmate, the investigation should have
examined FDC Oakdale’s entire response to the altercation, encompassing not just the treatment
by medical personnel but also the intervention of the officers on duty.
This situation is distinguishable from other cases where courts found that the plaintiffs’
claim forms did not give the agency sufficient information to evaluate the claim. In each of those
20
cases, the plaintiffs filed claims regarding automobile accidents, then failed to respond to the
agencies’ requests for information, such as medical records, that were solely in the plaintiffs’
possession. See Romulus, 160 F.3d at 131-32 (plaintiffs failed to respond to two requests for
medical reports, bills, and wage loss statements); Yunkeung Lee v. U.S. Dep’t of Army, No. 11CV-331 (RRM)(CLP), 2013 WL 4048329, at *7 (E.D.N.Y. Aug. 9, 2013) (plaintiff did not
respond to request for medical records and itemized bills); Furman v. U.S. Postal Serv., 349 F.
Supp. 2d 553, 555-56 (E.D.N.Y. 2004) (plaintiff did not respond to agency’s requests for
medical bills and wage loss statements). In all of these cases, the agencies had no way to
evaluate the claim’s worth, because they had no way of assessing the damages unless the
plaintiffs provided their medical records. Here, by contrast, plaintiff filed a claim regarding an
incident that occurred when he was in government custody, so the government had access to the
relevant incident reports and medical records. The agency’s records included reports by three
officers who responded to the scene at plaintiff’s cell. See Webb Decl., Exs. 1-3. Therefore, the
agency had the information necessary to investigate whether the officers acted negligently when
responding to the incident.
This claim is therefore more similar to the claims in Lopez and Sovulj, both of which
involved allegations of negligence by BOP staff where the relevant information was in the
agency’s possession. In Lopez, since the agency was on notice that the inmate was assaulted
while in BOP custody and subsequently received medical treatment, the court expected the
agency to look at its records to assess whether that medical care was given promptly. 2008 WL
3285895, at *4. In Sovulj, the court found that an investigation into a former inmate’s wrongful
death claim should include a review of his medical records. 2003 WL 21524835, at *3. Here,
too, the agency was aware that plaintiff’s injuries arose from an incident with his cellmate, so the
21
agency should have been expected to look at its own records to determine whether officers
handled that incident properly.
Therefore, I find that plaintiff only presented one of his claims to the agency. Plaintiff’s
SF 95 failed to put the agency on notice of his claims regarding his placement with his cellmate
or his prior reports about his cellmate’s threats, so the court lacks subject matter jurisdiction over
those claims. The only claim that plaintiff properly presented is the claim regarding FDC
Oakdale officers’ negligence in responding to the August 4, 2009, incident with his cellmate. 6
III.
FTCA’s Discretionary Function Exception
Having found that one of plaintiff’s claims satisfies the presentment requirement, I now
must consider defendant’s second ground for dismissal under the FTCA’s discretionary function
exception. I find that the court lacks subject matter jurisdiction over plaintiff’s claim that FDC
Oakdale officials responded negligently to the incident with his cellmate on August 4, 2009,
because the officers’ decisions regarding how to respond to a conflict between inmates fall
within the discretionary function exception.
The FTCA’s limited waiver of sovereign immunity incorporates a number of exceptions.
Under the discretionary function exception, the United States cannot be held liable for claims
based on “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). This exception is intended to
6
The parties also raise another dispute regarding the presentment of plaintiff’s claims. In order for a claim to be
properly presented, the claimant must specify a sum certain. This is a jurisdictional requirement that cannot be
waived. Adams by Adams v. U.S. Dep’t of Hous. & Urban Dev., 807 F.2d 318, 321 (2d Cir. 1986). On the SF 95,
plaintiff wrote the amount of his claim as “20,650.000.” The BOP’s denial letter shows that the agency construed
this figure as $20,650. Ugwonali Decl., Ex. 11. Yet plaintiff testified that he intended to write $20,650,000 on his
form but “made a mistake and put the comma [in] the wrong spot.” Pl. Dep. 142. In light of this court’s disposition
of the claims, it is unnecessary to resolve this issue.
22
“prevent judicial second-guessing of legislative and administrative decisions grounded in social,
economic, and political policy through the medium of an action in tort.” United States v.
Gaubert, 499 U.S. 315, 323 (1991) (internal quotation marks omitted). A claim falls within the
discretionary function exception if it satisfies a two-part test: (1) the challenged government
conduct must be discretionary, meaning it involves an “element of judgment or choice” and is
not mandated by statute or regulation; and (2) the judgment must be grounded in “considerations
of public policy” or susceptible to policy analysis. Id. at 322-23; Berkovitz v. United States, 486
U.S. 531, 536-37 (1988). A court lacks subject matter jurisdiction over any claim falling within
the discretionary function exception. Fazi v. United States, 935 F.2d 535, 537 (2d Cir. 1991).
A. Discretionary Act Prong
Plaintiff’s claim regarding the officers’ response to the August 4 incident clearly satisfies
the first prong of the Berkovitz-Gaubert test, because decisions regarding inmate security and
safety are discretionary in nature. “[A] prison’s internal security is peculiarly a matter normally
left to the discretion of prison administrators.” Rhodes v. Chapman, 452 U.S. 337, 349 n.14
(1981). The federal statute that prescribes the BOP’s duties states, in relevant part, that the BOP
must “provide suitable quarters and provide for the safekeeping, care, and subsistence of all
persons charged with or convicted of offenses against the United States.” 18 U.S.C. § 4042(a)(2).
The BOP must also “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)(3). “This statutory
duty means that the BOP must exercise ordinary diligence or reasonable care to keep prisoners
safe and free from harm.” Smith v. United States, 207 F. Supp. 2d 209, 214 (S.D.N.Y. 2002)
(internal quotation marks omitted). Yet the statute imposes only a general duty of care and “sets
forth no particular conduct BOP personnel should engage in or avoid while attempting to fulfill
23
their duty to protect inmates.” Taveras v. Hasty, No. 02-CV-1307 (DGT), 2005 WL 1594330, at
*3 (E.D.N.Y. July 7, 2005) (internal quotation marks omitted); see also Enigwe v. Zenk, No. 03CV-854 (CBA), 2007 WL 2713849, at *8 (E.D.N.Y. Sept. 14, 2007) (“[I]n general decisions
regarding the best way to safeguard prisoners are discretionary in nature.”) (collecting cases).
In particular, no federal statute, regulation, or policy prescribes how BOP officers should
act when responding to a fight between inmates. “As courts in this Circuit have held, corrections
officers responding to prison fights act with discretion based upon their judgment and
experience.” Winters v. United States, No. 10 Civ. 7571(JMF), 2013 WL 1627950, at *6
(S.D.N.Y. Apr. 16, 2013). For example, the regulations authorize BOP staff to use force “as a
last alternative after all other reasonable efforts to resolve a situation have failed,” and only to
use “that amount of force necessary to gain control of the inmate, to protect and ensure the safety
of inmates, staff, and others, to prevent serious property damage and to ensure institution
security and good order.” 28 C.F.R. § 552.20. The regulations also authorize staff to “apply
physical restraints necessary to gain control of an inmate who appears to be dangerous because
the inmate . . . [a]ssaults another individual.” 28 C.F.R. § 552.20(a). The regulations leave it to
the discretion of BOP officers to assess each individual situation and determine whether the use
of force is warranted, what amount of force is necessary, and what type of physical restraints are
necessary. In this case, therefore, the officers who responded to the incident between plaintiff
and his cellmate had discretion to determine what type of intervention the situation warranted.
B. Public Policy Prong
Applying the second prong of the Berkovitz-Gaubert test, the court must consider
whether the officers’ discretionary decisions were grounded in considerations of public policy.
Where, as here, the relevant statutes and regulations grant officials discretion, “it must be
24
presumed that the agent’s acts are grounded in policy when exercising that discretion.” Gaubert,
499 U.S. at 324. This presumption can be overcome if the plaintiff can show that “the challenged
actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory
regime.” Id. Decisions about how to intervene in a fight between inmates are “inherently
susceptible to policy analysis” because they involve on-the-spot judgments based on
considerations of inmate safety, officer safety, and available resources. Winters, 2013 WL
1627950, at *6. Accordingly, “[c]ourts have consistently held that the decision as to how to
respond to inmate violence is one grounded in policy considerations.” Banks v. United States,
No. 10 Civ. 6613(GBD)(GWG), 2011 WL 4100454, at *14 (S.D.N.Y. Sept. 15, 2011)
(collecting cases), report and recommendation adopted by 2011 WL 5454550 (S.D.N.Y. Nov. 9,
2011).
In this case, it is undisputed that once the first officer arrived on the scene, he did not
intervene immediately and instead waited for backup, then a group of officers entered plaintiff’s
cell together. Prior cases establish that the decision to wait for backup and the determination
about how many staff members should be present before intervening are exactly the types of
policy judgments that the discretionary function exception is intended to shield. In Taveras, a
fight broke out between plaintiff and another inmate while they were in a locked recreation cell.
An officer called for backup and waited while “the two inmates continued to fight.” Taveras,
2005 WL 1594330, at *1-*2. The court held that the officer’s decision to wait for assistance
before unlocking the cell and separating the inmates fell within the discretionary function
exception, “as there exists no provision that mandates breaking up inmate fights immediately,
possibly at the expense of safety of the prison personnel.” Id. at *4. In Banks, an officer ordered
plaintiff and another inmate to stop fighting, then left the area to secure the unit without first
25
separating them. After the officer left, the inmate assaulted plaintiff again. Banks, 2011 WL
4100454, at *1. The court concluded that the discretionary function exception shielded the
decision because the officer “observed a safety risk and made an on-the-spot assessment of how
best to resolve it.” Id. at *14; see also Winters, 2013 WL 1627950, at *6 (finding that officer’s
response to fight in common area by ordering prisoners to lock in, securing the door, and calling
for assistance falls within the discretionary function exception). Here, too, the determination
about how many officers to assemble before entering plaintiff’s cell was a public policy decision
that required the officers to balance considerations of safety and available resources.
C. Negligent Guard Theory
Plaintiff can overcome the FTCA’s discretionary function exception if he can
demonstrate that the officers’ actions in this case were the result of laziness, carelessness, or
inattentiveness, rather than grounded in policy considerations. The Second Circuit has held that,
under the so-called “negligent guard theory,” an official’s “lazy or careless failure to perform his
or her discretionary duties with due care” is not shielded by the discretionary function exception.
Coulthurst v. United States, 214 F.3d 106, 110 (2d Cir. 2000); see also Triestman v. Fed. Bureau
of Prisons, 470 F.3d 471, 476 (2d Cir. 2006) (per curiam) (citing Coulthurst as articulating the
“negligent guard theory”). “The negligent guard theory is a theory of liability under the FTCA
over which the district court clearly has subject matter jurisdiction.” Triestman, 470 F.3d at 476.
Plaintiff argues that this case falls within the negligent guard theory because the officers
took too long to intervene. The record does not clearly establish how long it took the officers to
respond. Plaintiff testified that after his cellmate knocked him to the floor, he may have been
knocked out for two or three minutes. Pl. Dep. 109-110. He testified that it took about eight
minutes for officers to enter his cell, though it is unclear whether he means eight minutes from
26
the time that his cellmate initially rushed at him or eight minutes from the time that he revived
after he was knocked out. Id. at 108-109. Plaintiff also testified that he saw an officer at the
window of his cell, then about five minutes later a group of officers entered his cell wearing riot
gear and helmets and carrying shields and batons. Id. at 111-12. The parties dispute how the
court should construe this testimony. Plaintiff argues that this testimony means it took about
thirteen minutes for officers to intervene: eight minutes for the first officer to arrive at the cell
door, then five more minutes for the officers to enter the cell. Pl.’s Opp’n 26. Yet I do not find
this to be a plausible interpretation of the record. Plaintiff testified multiple times that it took
about eight minutes for officers to enter his cell, not eight minutes for officers to get to the door
of his cell. Pl. Dep. 108-10. I agree with defendant that the most logical reading of plaintiff’s
testimony is that it took about eight minutes for officers to enter his cell, and an officer was at the
cell door for about five minutes of that period. Def.’s Reply 18. Drawing all reasonable
inferences in plaintiff’s favor, I find that his testimony alleges, at most, that he was knocked out
for two or three minutes, then after he revived it took three minutes for the first officer to arrive
at the window of his cell and another five minutes for a group of officers to enter his cell.
Defendant has not provided any evidence that specifically rebuts plaintiff’s testimony.
The reports that the officers submitted at the time of the incident do not specify how long it took
them to respond. Webb wrote that he was notified of the fight by radio at approximately 8:30
a.m., responded to the cell, waited for “enough staff” to arrive on the scene, and then ordered the
officers to open the cell door. Webb Decl., Ex. 1. Officers Cole and Manuel submitted identical
reports stating that they heard screaming in the area of plaintiff’s cell at approximately 8:30 a.m.,
looked in to the cell, saw Okitapoy on top of plaintiff, called for assistance, and “waited for the
Lieutenant and responding staff to arrive” before entering the cell. Webb Decl., Exs. 2-3. None
27
of the officers provided any information in the reports about how long it took for Webb to arrive
on the scene or how much longer they waited for other officers to arrive before entering the cell.
In their statements for this litigation, the officers did not recall exactly how long it took them to
respond to this particular incident, so they could only speak to their usual practices. Webb Decl.
¶ 9; Manuel Dep. 15. Therefore, I will accept plaintiff’s version of events as undisputed.
Nevertheless, I find that plaintiff’s allegations regarding the officers’ response do not
establish that the officers acted negligently, lazily, or carelessly. Plaintiff asks the court to infer
that the officers must have been lazy or careless because it took them longer than usual to arrive
at the scene. Officer Manuel testified that it would take no more than a minute and a half for
officers to intervene in a fight. Manuel Dep. 15-16. Plaintiff argues that, since there is no
explanation for why it took longer for the officers to intervene in this case, the delay must have
been due to laziness or inattentiveness. Pl.’s Opp’n 26-27. Yet plaintiff misconstrues Manuel’s
testimony. Manuel stated that it generally takes him a minute and a half to arrive at the scene of a
fight, but he further stated that once officers arrive, they must make an on-the-spot decision
about how to proceed. He testified that if he saw inmates fighting in the yard, he would not
“jump in the middle of the fight and try to break it up,” and instead would “wait for the adequate
amount of staff to show up plus a supervisor.” Manuel Dep. 16. His testimony is consistent with
the undisputed fact that the officers waited for backup before intervening.
Plaintiff has not pointed to any evidence in the record to affirmatively show that the
officers acted in a lazy or careless manner, nor do the surrounding circumstances give rise to an
inference that the officers must have been negligent. This case stands in contrast to Hartman v.
Holder, where an inmate attacked plaintiff after an officer had placed the unit on “lock down” for
the night and all the inmates were together in the dormitory room. No. 1:00-cv-6107-ENV-JMA,
28
2009 WL 792185, at *1 (E.D.N.Y. Mar. 23, 2009). Under BOP rules, when the unit is locked
down and secured, the officer on duty is required to conduct frequent rounds. Id. at *4. After the
inmate attacked plaintiff, the “uncontroverted” record showed that it took the officer on duty at
least fifteen minutes to respond. Id. at *10. The court held that the officer’s alleged “failure to
observe for at least a quarter hour a noisy, violent altercation occurring within a room containing
all of the inmates under her supervision” sufficiently made out a claim that the officer was
“distracted or inattentive to her duties.” Id. In Hartman, the evidence in the record could not
explain why it took the officer fifteen minutes to even notice an incident that occurred in the
room she was supposed to be patrolling, giving rise to an inference that she had been careless.
Here, not only did the officers respond more quickly than the officer in Hartman, but plaintiff’s
own testimony provides an explanation for what the officers were doing before they intervened:
they were waiting for backup to arrive and putting on protective gear. These actions clearly fall
within the discretionary function exception and in no way suggest laziness or carelessness.
Plaintiff has therefore not met his burden to establish that the negligent guard theory
applies to this case. Both Coulthurst and Triestman only considered the allegations that are
necessary to allow a complaint to go forward at an earlier stage of the litigation. In Coulthurst,
the court held that the plaintiff’s complaint alleging that he was injured in the prison’s gym
encompassed the possibility that prison officials were lazy or inattentive in inspecting the
equipment. 214 F.3d at 109-10. The court noted that the government would be entitled to
judgment after discovery “[i]f the plaintiff is unable to offer sufficient evidence to establish a
triable issue of fact.” Id. at 111. In Triestman, the court held that a pro se complaint stated a
claim under the negligent guard theory because it alleged that “the officer on duty when the
incident occurred failed to patrol or respond diligently to an emergency situation out of laziness
29
or inattentiveness.” 470 F.3d at 475. The court made clear, however, that it construed the
complaint liberally due to the plaintiff’s pro se status and expressed “no ultimate view of the
merits of the negligent guard theory in this case, or even of its capacity to withstand summary
judgment.” Id. at 476. Here, by contrast, the parties have completed discovery and developed the
record of what happened on August 4, 2009. The plaintiff cannot point to any evidence in this
record to support an inference that the officers acted negligently. See Banks, 2011 WL 4100454,
*15 (distinguishing case from Coulthurst and Triestman because “here it is specifically alleged
that [the officer] responded to the safety risk,” and plaintiff has not alleged facts that show
laziness or inattentiveness). Since this claim falls within the discretionary function exception, the
court lacks subject matter jurisdiction. 7
7
Even if plaintiff could establish that this case falls outside the discretionary function exception, defendant would
still be entitled to judgment as a matter of law on another ground: plaintiff cannot establish all of the elements of a
negligence claim. A claim for negligence under the FTCA is governed by the law of the state “where the act or
omission occurred,” 28 U.S.C. § 1346(b)(1), so Louisiana law applies to this case. Under Louisiana law, courts
assess negligence claims using a duty-risk analysis in which the plaintiff “must prove that the conduct in question
was a cause-in-fact of the resulting harm, the defendant owed a duty of care to plaintiff, the requisite duty was
breached by the defendant, and the risk of harm was within the scope of protection afforded by the duty breached.”
Louisiana ex rel. Jackson v. Phelps, 672 So.2d 665, 666-67 (La. 1996). To establish the first element of cause-infact, “[t]he inquiry to be made is whether the accident would have occurred but for the defendant’s alleged
substandard conduct or, when concurrent causes are involved, whether defendant’s conduct was a substantial factor
in bringing about the accident.” Daye v. Gen. Motors Corp., 720 So.2d 654, 659 (La. 1998). Here, plaintiff testified
that after his cellmate knocked him down, he momentarily lost consciousness, and when he revived he noticed that
his cellmate was sitting on top of him and that plaintiff’s right leg was twisted. Pl. Dep. 105-07. Plaintiff testified
that after he revived, his cellmate was not hitting him but was “just holding my jumper” so that plaintiff could not
move. Id. at 107. Plaintiff testified that he did not feel pain at this time until the officers entered the cell and pulled
his cellmate off him. Id. Therefore, plaintiff’s own testimony makes clear that the injury to his leg occurred
immediately after his cellmate jumped on him, before the officers would have had any chance to respond. Plaintiff’s
injury would have occurred regardless of the officers’ allegedly negligent delay in responding to the incident, and
any delay was not a substantial factor in bringing about the injury. Therefore, defendant would be entitled to
judgment, since no rational factfinder could conclude that defendants’ conduct was the cause-in-fact of plaintiff’s
injury. See Qin Chen v. United States, 494 F. App’x 108, 109-10 (2d Cir. 2012) (affirming dismissal of plaintiff’s
FTCA claim because plaintiff could not establish the elements of negligence under New York law).
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CONCLUSION
For the foregoing reasons, defendant’s motion to dismiss is granted. The court lacks
subject matter jurisdiction over plaintiff’s claims that BOP officers negligently assigned him to a
cell with an unstable cellmate and negligently failed to respond to plaintiff’s complaints about
his cellmate because, for both of these claims, plaintiff failed to satisfy the FTCA’s presentment
requirement. The court lacks subject matter jurisdiction over plaintiff’s remaining claim that
officers negligently responded to the incident with his cellmate on August 4, 2009, because the
officers’ decisions about how to intervene in a fight between inmates fall within the FTCA’s
discretionary function exception, and plaintiff has not presented sufficient evidence to bring the
claim within the negligent guard theory. Accordingly, the complaint is dismissed in its entirety.
The Clerk of Court is directed to enter judgment and close the case.
SO ORDERED.
__/s/___________________________
Allyne R. Ross
United States District Judge
Dated:
March 20, 2014
Brooklyn, New York
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