Needham v. United States of America
Filing
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OPINION AND ORDER re: 22 MOTION to Dismiss the Complaint in Part: For the reasons set forth above, the United States' motion to dismiss is GRANTED as to Needham's negligent screening, hiring, and training claims. As the Govern ment has not moved to dismiss Needham's negligent supervision claim, that claims survives. That parties are directed to appear for an Initial Pretrial Conference on August 16, 2018 at 11:45 am. The Clerk of the Court is respectfully directed to terminate the motion, Doc. 22. (Initial Conference set for 8/16/2018 at 11:45 AM before Judge Edgardo Ramos.) (Signed by Judge Edgardo Ramos on 7/26/2018) (jwh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DERRILYN NEEDHAM,
Plaintiff,
OPINION AND ORDER
- against 17 Civ. 05944 (ER)
UNITED STATES OF AMERICA,
Defendant.
Ramos, D.J.:
Derrilyn Needham (“Needham”) sues the United States of America (“United States”)
under the Federal Tort Claims Act. Specifically, Needham requests damages for the emotional
harm inflicted when Correction Officer Rudell L. Clark Mullings (“Officer Mullings”) raped her.
The United States now moves to dismiss the negligent screening, hiring, and training claims in
Needham’s Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The
United States also claims that Needham’s Eighth Amendment claim is barred by sovereign
immunity. For the reasons set forth below, the United States’ 12(b)(1) motion is GRANTED.
I.
BACKGROUND
A.
Factual Background
While she was serving a prison sentence at Metropolitan Correctional Center (“MCC”) in
New York City in the summer of 2014, Needham was summoned to her unit’s control room by
Officer Mullings. Compl. ¶ 10, 12, Doc. 1. When she reached the control room, Officer
Mullings asked her to enter but she declined, stating that she preferred to stay in her unit. Id. at ¶
12. Officer Mullings then proceeded to question Needham regarding “her family and life, and
how long a sentence she was serving.” Id. He told her she was someone he would like to know
“on the outside,” asked whether she missed having sex while she was in jail and proceeded to
make an explicit sexual advance toward her. Id. Needham became uncomfortable and left the
area. Id. at ¶ 13. After that episode, Officer Mullings continued to make “uninvited contact and
initiat[ed] unwelcome verbal interactions.” Id. at ¶ 14. Needham alleges that Officer Mullings
enlisted another correctional officer, Officer Fletcher, to act as a liaison between himself and
Needham. Id. at ¶ 15. Officer Fletcher told Needham that Officer Mullings referred to her as his
girlfriend. Id. Needham alleges upon information and belief that Officer Mullings was trying to
“groom” Needham into having a sexual relationship with him by, among other things, enlisting
Officer Fletcher to deliver food to her from outside the facility. Id. at ¶ 16. Needham alleges
that although Officer Fletcher was aware of Officer Mullings’ sexual intentions toward her,
Fletcher did not report the conduct or make any effort to halt it. Id. at 17–18.
In December 2014, Needham told the supervisor at her prison work assignment, Officer
Collier, that Mullings was making unwanted personal advances toward her, to which he
responded, “stay away from him” and that Officer Mullings and those with whom he associated
were dangerous. Id. at ¶ 19. Needham alleges that Officer Collier did nothing in response to her
complaint. Id. In fact, he recommended that she not tell anyone about the conduct. Id.
On February 14, 2015, Needham and two other inmates were waxing the floor of MCC
while a correction officer supervised them. Id. at ¶ 20. The officer left to watch a televised
sporting event and delegated the supervision of Needham and the other two inmates to Officer
Mullings. Id. The other inmates eventually left and Officer Mullings approached Needham from
behind, “grabbed her, forcibly removed her pants and underwear” and raped her as she fought
back. 1 Id. at ¶ 21. Shortly thereafter, Needham reported the rape to law enforcement officers,
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This incident lasted “a few minutes.” Underlying Facts, Compl. ¶ 21, Doc. 1.
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her son, and another inmate. Id. at ¶ 23. On February 19, 2015, Needham saw Officer Mullings
as she worked in the commissary where he stared at her “in an intimidating manner causing her
to become very frightened and upset.” Id. at ¶ 24.
B.
Procedural History
On November, 23, 2015, Mullings was prosecuted for the offense in the Eastern District
of New York; he pled guilty, and was sentenced to 84 months imprisonment by Judge Korman
on May 4, 2016. See USA v. Mullings, 15-cr-00538 (ERK) Docs. 2, 23, 24; see also Pl.’s Mem.
Opp’n at 1, n.1, Doc. 28. . On August 7, 2017, the instant Federal Tort Claims Act action was
filed, alleging that the United States of America negligently screened, hired, trained, and
supervised Officer Mullings and other correctional officers “who failed to properly act on
information they possessed and to investigate, report, and/or stop Mullings from inappropriate
personal contact, grooming, gift-giving, and eventual rape of the plaintiff.” Compl. ¶ 27. The
United States now moves to dismiss Needham’s negligent screening, hiring, and training claims
pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure claiming
sovereign immunity. 2 Preliminary Statement, Def.’s Mem. at 1, Doc. 23. The United States
separately claims that Needham’s Eighth Amendment claim is barred by sovereign immunity.
Id.
II.
LEGAL STANDARD
A.
Standard of Review
The United States’ motion to dismiss relies on both Rules 12(b)(1) and 12(b)(6). “Courts
are required to decide ‘the jurisdictional question first because a disposition of a Rule 12(b)(6)
motion is a decision on the merits, and therefore, an exercise of jurisdiction.’” Spruill v. NYC
2
The Government is not moving to dismiss the negligent supervision claim.
3
Health & Hosp., 2007 U.S. Dist. LEXIS 63093, at *2 (S.D.N.Y. Aug. 23, 2007), aff’d sub nom.
Spruill v. New York City Health & Hospitals Corp., 367 F. App’x 269 (2d Cir. 2010) (quoting
Magee v. Nassau County Med. Ctr., 27 F. Supp. 2d 154, 158 (E.D.N.Y. 1998)); id. (citing Rhulen
Agency, Inc. v. Alabama Ins. Guar. Ass’n., 896 F.2d 674, 678 (2d Cir. 1990)).
B.
Motion to Dismiss Under Rule 12(b)(1)
“‘Determining the existence of subject matter jurisdiction is a threshold inquiry and a
claim 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.’” Morrison v. Nat’l
Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (citation omitted). “When considering a
motion to dismiss for lack of subject[-]matter jurisdiction . . . , a court must accept as true all
material factual allegations in the complaint.” Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d
129, 131 (2d Cir. 1998). Nevertheless, “[t]he burden of proving jurisdiction is on the party
asserting it.” Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996) (internal quotation marks
omitted).
In other words, “when the question to be considered is one involving the jurisdiction of a
federal court, jurisdiction must be shown affirmatively, and that showing is not made by drawing
from the pleadings inferences favorable to the party asserting it.” Drakos, 140 F.3d at 131.
Accordingly, a court may consider affidavits and other material beyond the pleadings to resolve
jurisdictional questions under Rule 12(b)(1). See Robinson v. Gov’t of Malaysia, 269 F.3d 133,
140 n.6 (2d Cir. 2001).
C.
Federal Tort Claims Act
“[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) (quoting United States v.
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Sherwood, 312 U.S. 584, 586 (1941)). “The doctrine of sovereign immunity is jurisdictional in
nature, and therefore to prevail, the plaintiff bears the burden of establishing that her claims fall
within an applicable waiver.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)
(citation omitted). As established by the Federal Tort Claims Act (“FTCA”), the United States
consents to suit, and thus waives its sovereign immunity, in actions for money damages for
injuries “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); see also Fountain v. Karim, 838 F.3d 129, 131 (2d Cir. 2016). There is, however, an
exception to that waiver known as the discretionary function exception (“DFE”). The DFE
shields the government from liability for claims “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 Supreme Court has instructed that district courts not focus “on the agent’s subjective
intent in exercising the discretion conferred by statute or regulation, but on the nature of the
actions taken and on whether they are susceptible to policy analysis.” United States v. Gaubert,
499 U.S. 315, 324–25 (1991). More specifically, a claim falls within the discretionary function
exception “if two conditions are met.” Molchatsky v. United States, 713 F.3d 159, 162 (2d Cir.
2013) (per curiam). First, the challenged government conduct must be “discretionary in nature,”
Gaubert, 499 U.S. at 322, meaning that the acts in question “involve an ‘element of judgment or
choice’ and are not compelled by statute or regulation,” Molchatsky, 713 F.3d at 162 (quoting
Gaubert, 499 U.S. at 322–23). The DFE “bars claims based on day-to-day management
decisions if those decisions require judgment as to which of a range of permissible courses is
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wisest.” Fazi v. United States, 935 F.2d 535, 538 (2d Cir. 1991). Thus, to fall within the DFE,
an act must not be “compelled by statute or regulation,” because acts in violation of rules and
regulations are, by definition, not discretionary and therefore are afforded “no shelter from
liability.” Coulthurst v. United States, 214 F.3d 106, 109 (2d Cir. 2000); Gaubert, 499 U.S. at
324.
Second, to fall within the DFE, the judgment exercised must be “‘of the kind that the
discretionary function exception was designed to shield,’” Gaubert, 499 U.S. at 322–23 (quoting
Berkovitz v. United States, 486 U.S. 531, 536 (1988))—that is, “grounded in ‘considerations of
public policy’ or susceptible to policy analysis,” Molchatsky, 713 F.3d at 162 (quoting Gaubert,
499 U.S. at 322). The DFE’s purpose is to prevent “judicial second-guessing of legislative and
administrative decisions grounded in social, economic, and political policy through the medium
of an action in tort.” Gaubert, 499 U.S. at 323 (internal quotation marks and citations omitted).
Accordingly, certain acts, although discretionary, do not fall within the DFE because they
“involve ‘negligence unrelated to any plausible policy objective.’” Riascos-Hurtado v. United
States, No. 09 CV 003 (RJD) (VMS), 2015 U.S. Dist. LEXIS 73821, at *14 (E.D.N.Y. June 5,
2015) (quoting Coulthurst, 214 F.3d at 111); see Coulthurst, 214 F.3d at 111 (2d Cir. 2000)
(noting that “[a]n inspector’s decision (motivated simply by laziness) to take a smoke break
rather than inspect the machines, or an absent-minded or lazy failure to notify the appropriate
authorities upon noticing the damaged cable, are examples of negligence fairly encompassed by
the allegations of the complaint that do not involve ‘considerations of public policy’” (quoting
Gaubert, 499 U.S. at 323)); Indian Towing Co. v. United States, 350 U.S. 61, 68–69 (1955)
(careless maintenance of a lighthouse not exemption from liability); Andrulonis v. United States,
952 F.2d 652, 655 (2d Cir. 1991) (careless failure of government scientist to maintain proper
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safety procedures and warn others of potential dangers not immune); Caraballo v. United States,
830 F.2d 19, 22 (2d Cir. 1987) (negligent patrol of a beach vulnerable to suit).
If an act is not compelled by any statute or regulation, but rather such statute or
regulation permits employee discretion, “the very existence of the regulation creates a strong
presumption that a discretionary act authorized by the regulation involves consideration of the
same policies which led to the promulgation of the regulation” and “it must be presumed that the
agent’s acts are grounded in policy when the agent exercises that discretion.” Gaubert, 499 U.S.
at 324.
III.
DISCUSSION
In seeking dismissal, the Government points to Supreme Court and Second Circuit
precedent which states generally that the Government’s screening, hiring, and training of
employees fall within the DFE and are thus barred. Def.’s Mem. at 4–7. In response, relying
primarily on 18 USC § 4042(a), Ninth Circuit precedent, and case law from the Eastern District
of New York, Needham argues that she has sufficiently plead that the Government’s conduct
does not fall within the DFE and that her claims should stand. Pl.’s Mem. Opp’n at 4–7.
Because Needham does not satisfy either prong of the Gaubert test, her claims must be
dismissed. See 499 U.S. 322–323.
The Court finds persuasive the authority relied upon by the Government that actions such
as screening, hiring, and training are generally discretionary in nature. See, e.g., Hekmat v. U.S.
Transp. Sec. Admin., 247 F. Supp. 3d 427, 437–38 (S.D.N.Y. 2017) (holding that the TSA’s
hiring procedures are discretionary and “clearly involve matters of public policy”); Cuoco v.
United States Bureau of Prisons, 2003 U.S. Dist. LEXIS 16615, at *19–20 (S.D.N.Y. Sep. 22,
2003) (holding that “challenges to the personnel decisions of the United States are barred by the
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discretionary function exception to the FTCA”); Riascos-Hurtado, 2015 U.S. Dist. LEXIS
73821, at *18 (concluding that “plaintiffs’ allegations of negligent screening, hiring, and training
cannot survive the discretionary function inquiry”); Saint-Guillen v. United States, 657 F. Supp.
2d 376, 387 (E.D.N.Y. 2009) (holding that where a complaint does not allege any misconduct
regarding defendant’s hiring, retention, and training practices, such practices are discretionary).
Moreover, as the Government correctly points out, Needham fails to adequately allege that the
specific personnel decisions at issue here were “compelled by statute or regulation.” Coulthurst,
214 F.3d at 109.
In arguing otherwise, Needham relies on 18 USC § 4042(a), which states in relevant part
that the Bureau of Prisons shall “provide suitable quarters and provide for the safekeeping, care,
and subsistence of all persons charged with or convicted of offenses against the United States.”
Needham states that the language of this statute “is broad enough to impose a duty on the
Government to determine the basic fitness of an applicant to become a correctional officer.”
Pl.’s Mem. Opp’n at 4. But the breadth and generality of the statute undercuts her claim: the
DFE applies when statutes broadly outline the agency’s responsibilities but do not compel
specific action. The statute in question requires BOP discretion to “provide for the safekeeping,
care and subsistence” of prisoners, but it does not dictate how the BOP should achieve those
goals or how it should screen, hire, or train its staff. 18 USC § 4042(a). See Paulino-Duarte v.
United States, 2003 U.S. Dist. LEXIS 20000, at *5 (S.D.N.Y. Nov. 6, 2003) (holding that 18
USC § 4042(a) does not compel the BOP’s action because it “merely outlines the general
responsibilities of the BOP and leaves the BOP with ‘judgment or choice’ in determining the
proper course to fulfill these objectives.”). Compare Paulino-Duarte, 2003 U.S. Dist. LEXIS
20000, at *5, with USAA Cas. Ins. Co. v. Permanent Mission of the Republic of Namib., 681 F.3d
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103, 109 (2d Cir. 2012) (holding that a statute that “imposes upon the ‘person causing . . .
construction’ within a building the duty to ‘[m]aintain the structural integrity of [party walls],’
and to ‘take all necessary steps to protect such wall[s]’” compelled action and was not
discretionary) (alterations in original), and Ben v. United States, 160 F. Supp. 3d 460, 467, 474
(N.D.N.Y. 2016) (holding policies that required probation officers to “develop a written
supervision case plan . . . ; inspect electronic monitoring equipment at least once per month;
conduct daily review of electronic monitoring activity reports . . . ; receive immediate
notification of electronic monitoring tamper alerts; conduct immediate investigation of tamper
alerts; and provide a report to the court concerning any violation of the court-imposed
conditions” compelled specific actions and were thus non-discretionary). Thus, because the
relevant acts in the instant case involved an element of judgment, and because there is no
statutorily compelled course of action for the acts complained of, the DFE applies.
Nor does Needham set forth allegations sufficient to demonstrate that the decisions were
not grounded in policy considerations. As an initial matter, Needham states that the BOP failed
to properly act on the information she provided and to investigate, and stop Mullings from
inappropriate personal contact, and “eventual rape of the plaintiff.” Compl. ¶ 27. Those
allegations, however, are not relevant to the process that the United States undertook in hiring,
screening, and training the correctional personnel in question. Nor has Needham alleged that the
personnel decisions here involved “negligence unrelated to any plausible policy objectives.”
Coulthurst, 214 F.3d at 111. And even if she did, such claims are likely to fail. See SaintGuillen, 657 F. Supp. 2d at 387 (stating “federal courts have found that such hiring, [and]
training . . . decisions generally fall within the exception” because ‘[t]he hiring decisions of a
public entity require consideration of numerous factors, including budgetary constraints, public
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perception, economic conditions, individual backgrounds, office diversity, experience and
employer intuition.’” (quoting Burkhart v. Wash. Metro. Area Transit Auth., 112 F.3d 1207,
1217 (D.C. Cir. 1997))); see also Riascos-Hurtado, 2015 U.S. Dist. LEXIS 73821, at *18
(holding that screening, hiring, and training “require a balancing of competing objectives, and
are of the nature and quality that Congress intended to shield from tort liability.”). Needham
therefore offers no allegations to overcome the presumption that these decisions were grounded
in policy considerations. See Gaubert, 499 U.S. at 324 (noting that where a statute or regulation
permits employee discretion, “the very existence of the regulation creates a strong presumption
that a discretionary act authorized by the regulation involves consideration of the same policies
which led to the promulgation of the regulation” and “it must be presumed that the agent’s acts
are grounded in policy when the agent exercises that discretion”); see also Cheng Yong Wang v.
United States, 61 F. App’x 757, 759 (2d Cir. 2003) (holding that discretionary conduct that is
based on considerations of public policy “is bulletproof from liability under the [DFE].”).
Needham offers two bases to distinguish her case from the prevailing case law that holds
that personnel decisions are shielded from liability by the DFE. Pl.’s Mem. Opp’n at 4–7.
Neither is persuasive.
First, Needham emphasizes that she alleged negligent screening, hiring, and training of
the correction officers but that she “has no way to know more” about the circumstances. Pl.’s
Mem. Opp’n at 6. Indeed, the court in Riascos-Hurtado dismissed the plaintiff’s screening,
hiring, and training claims precisely because the plaintiffs did “not deduce[] any evidence
suggesting that the BOP’s hiring of [the subject officer] strayed from . . . normal considerations.”
2015 U.S. Dist. LEXIS 73821, at *16–19. So too here, as Needham fails to provide any
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