Pappas v. United States of America

Filing 57

ORDER ADOPTING IN PART 52 Supplemental Report and Recommendation, DENYING IN PART and GRANTING IN PART 56 Plaintiff's Objections to Supplemental Report and Recommendation, GRANTING IN PART, DENYING IN PART, and allowing to CONTINUE TO PEND IN PART 36 Defendant's Motion to Dismiss, REFERRING CASE BACK to Magistrate Judge Gary M. Purcell, all as fully set forth in this Order. Motion referred to Gary M. Purcell. Signed by Honorable Stephen P. Friot on 2/24/14. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

MARKOS N. PAPPAS,
Plaintiff,
vs.
UNITED STATES OF AMERICA,
Defendant.

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Case No. CIV-12-0753-F

ORDER
Before the court are the Supplemental Report and Recommendation of United
States Magistrate Judge Gary M. Purcell, doc. no. 52 (the Report), and plaintiff’s
Objections to that Report. Doc. no. 56. The Report addresses defendant’s motion to
dismiss. Doc. no. 36.
This action is brought by plaintiff, a federal prisoner who appears pro se,
alleging claims under the Federal Tort Claims Act. The claims are described in detail
in the Report but the gist of them is as follows.
In count one, labeled “negligent/wrongful deprivation of a mattress resulting
in physical/emotional injuries,” plaintiff alleges that he was deprived of a mattress due
to disciplinary punishment ordered by Disciplinary Hearing Officer (DHO) J. Haines,
and also due to the (alleged) fact that plaintiff was deprived of a mattress for
measurably longer periods than called for by the disciplinary sanction. As made clear
by the allegations and his briefing, plaintiff contends that both the “as ordered” and
“as carried out” aspects of his claim (court’s terminology) deprived him of a mattress
in violation of federal regulations.

In count two, labeled “negligent/wrongful deprivation of out-of-cell exercise
resulting [in] injuries,” plaintiff alleges that he was deprived of out-of-cell exercise
in violation of federal regulations which require minimum periods of out-of-cell
exercise. The complaint alleges that this deprivation occurred because Bureau of
Prisons (BOP) staff would falsely mark down that plaintiff “refused” out-of-cell
exercise.
The Report recommends granting the motion to dismiss. More specifically, the
Report recommends dismissing the first claim with prejudice, for lack of jurisdiction.
Doc. no. 52, p. 22. This recommendation is based on the Magistrate Judge’s
conclusion that the United States has not waived its immunity to suit under the FTCA
because the mattress-deprivation claim falls within the discretionary function
exception to the FTCA’s waiver. As seen from the discussion which follows, the court
declines to adopt this recommendation.

The Report recommends dismissing

plaintiff’s second claim for failure to state a plausible claim for relief under the FTCA.
Id. The Report reaches this conclusion because an FTCA claim premised on
intentional infliction of emotional distress is not plausible here. The court agrees with
this conclusion but declines to dismiss the out-of-cell exercise claim in its entirety
because plaintiff has not limited this FTCA claim to one premised on intentional
infliction of emotional distress.
Plaintiff’s Objections to the Report
Plaintiff objects to dismissal and has submitted fourteen separate objections to
the Report. Some of plaintiff’s objections are merely cosmetic in nature and do not
substantially impact the analysis or results recommended in the Report. Nevertheless,
the court has considered all objections, including all sub-parts of all objections
(although not all sub-parts are specifically addressed in this order). All objected to
matters have been reviewed de novo.
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1.
In his first objection, plaintiff contends that the last paragraph on page 4 which
continues on page 5 of the Report is “defense’s version of certain events” and is
irrelevant. The statements in question are attributed to DHO Haines and are relevant.
This objection is without merit.
2.
In his second objection, plaintiff asserts that the Magistrate Judge has reversed
the sequence of stages of the administrative appeal process as described on pages 5
and 6 of the Report. It appears the Magistrate Judge reversed the sequence. See dates
of signatures, doc. no. 36-2, pp. 1, 3. The objection is well taken but the reversal of
the sequence is inconsequential.
3.
In his third objection, plaintiff takes issue with the Report’s reference to or
reliance on plaintiff’s habeas litigation relative to the finding of guilt. Plaintiff asserts
that the discussion of his habeas petition on page 8 of the Report is irrelevant. It was
appropriate for the Magistrate Judge to include this paragraph. This objection is
without merit.
4.
In his fourth objection, plaintiff takes issue with the use of the word “concedes”
at page 9 of the Report.

Plaintiff contends this is an unfair and inaccurate

characterization of what he actually argued in his response to the motion to dismiss.
He contends that what he intended to convey in his response was that he should be
permitted to add constitutional claims separate and apart from his FTCA claims. This
portion of the Report reveals that the Magistrate Judge interpreted plaintiff’s
arguments as seeking to bring FTCA claims premised on constitutional claims, and
the court construes this portion of the Report as determining only that issue. This was
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an appropriate understanding of plaintiff’s argument at the time, especially because
the complaint clearly alleges as follows. “This is not a civil rights or Bivens-type
complaint. This is a complaint pursuant to the federal Tort Claims Act (“FTCA”)....”
Doc. no. 1, p. 1. at n.*. Plaintiff’s fourth objection is without merit.
5.
In his fifth objection, plaintiff challenges the Magistrate Judge’s conclusion that
the court lacks jurisdiction over constitutional claims in this FTCA action. The Report
correctly concludes that “constitutional claims are not within the purview of the
FTCA,” and that “The Court lacks jurisdiction to consider [plaintiff’s] constitutional
claims against Defendant USA under the FTCA....” Doc. no. 52, p. 11.1 This
objection is without merit.
6.
In his sixth objection, plaintiff takes issue with the Magistrate Judge’s finding
at p. 11 of the Report that “Plaintiff does not allege a breach of any duty under
Oklahoma law.” As the Report correctly states, because they are brought as FTCA
claims, plaintiff’s claims depend on a violation of state law.

To satisfy this

requirement, plaintiff argues, first, that his claims allege intentional infliction of
emotional distress (IIED). Secondly, citing Caldwell v. United States, 1993 U.S.App.

1

The balance of the quoted sentence recommends dismissal with prejudice for failure to state
a claim. However, dismissals for lack of jurisdiction based on the United States’s failure to waive
its sovereign immunity, should be dismissals without prejudice. See, F.D.I.C. v. Meyer, 510 U.S.
471, 476-778 (1994) (issue of whether there is a cognizable claim for violation of a constitutional
right under the FTCA discussed as a jurisdictional issue concerning whether the United States has
waived its sovereign immunity); Rural Water Sewer and Solid Waste Management, Dist. No. 1,
Logan County, Oklahoma v. City of Guthrie, 654 F.3d 1058, 1069 at n.9 (10th Cir. 2011) (dismissals
based on sovereign immunity must be without prejudice). Therefore, the court will adopt the
Magistrate Judge’s recommendation that constitutional claims purportedly brought under the FTCA
will be dismissed, but not the Magistrate Judge’s recommendation that such claims be dismissed
with prejudice.

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LEXIS 4613 (10th Cir. Mar. 3, 1993),2 plaintiff asserts that the Tenth Circuit has found
that Oklahoma recognizes a duty of custodial care, the standard for which is set by
federal statutes or regulations. Citing Howard v. Zimmer, 299 P.3d 463 (Okla. 2013),
plaintiff argues that “Oklahoma law allows private individuals to maintain a parallel
claim for negligence per se based on violation of a federal regulation whose
enforcement lies with a governmental entity.” Thus, under Howard v. Zimmer,
plaintiff argues that he has alleged an FTCA claim based on Oklahoma law.
In Howard v. Zimmer, the Oklahoma Supreme Court reiterates Oklahoma’s
recognition of a cause of action for negligence per se based on the violation of a
federal regulation when the claimed injury was caused by the violation, the injury was
of the type intended to be prevented by the regulation, and the injured party was one
of the class intended to be protected by the regulation. Id. at 465, n.3. As described
in Howard v. Zimmer, negligence per se is a theory which enables a plaintiff to
establish, as a matter of law, that defendant’s conduct constituted a breach of duty in
a negligence action so that only causation and damages need be proved. Id. Thus,
the negligence per se doctrine goes to the manner in which a plaintiff is required to
prove his negligence claim.3

2

The court is unable to locate a reported decision of the Caldwell case. United States v.
Caldwell, dated March 3, 1993, is referenced in a table of decisions without reported opinions, at
986 F.2d 1426. In the Tenth Circuit, unpublished decisions are not precedential.
3

The complaint alleges, and plaintiff’s briefing in response to the motion to dismiss argues,
that defendant’s actions with respect to the taking of plaintiff’s mattress, as well as defendant’s
handling of the out-of-cell exercise issue, violated BOP regulations. Thus, although plaintiff did not
use the phrase “negligence per se” in his complaint or in his briefing before the Magistrate Judge,
this particular theory of negligence is not a new theory raised for the first time in objections to the
Report. Additionally, pro se parties’ pleadings are more liberally construed than pleadings
composed by lawyers. Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007).

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Plaintiff’s briefing does not address the specific elements of the negligence per
se doctrine as applied to his claims. Nevertheless, at least with respect to his mattressdeprivation claim, plaintiff arguably could establish a breach of duty based on BOP
employees’ alleged violation of the governing regulations. In particular, see 28 C.F.R.
§541.21(b) (continuously in effect through July 19, 2011) stating: “Living conditions
may not be modified for the purpose of reinforcing acceptable behavior....” and
§ 541.21(c)(3)(2010) (continuously in effect through July 19, 2011) stating: “Staff
shall furnish a mattress and bedding,” and “An inmate may not be segregated without
clothing, mattress, blankets and pillow, except when prescribed by the medical officer
for medical or psychiatric reasons.” Accordingly, the court respectfully disagrees with
the Report’s statement that plaintiff has not alleged a breach of any duty under
Oklahoma law. This aspect of plaintiff’s sixth objection is well taken.
7.
In his seventh objection, plaintiff challenges the Magistrate Judge’s finding that
the discretionary function exception bars plaintiff’s FTCA claims. In support,
plaintiff adopts the arguments in his response to the motion to dismiss, doc. no. 49 at
pp. 3-8.
Plaintiff’s seventh objection is well taken to the extent that plaintiff objects to
application of the discretionary function exception to his mattress-deprivation claim.
For reasons explained in connection with plaintiff’s ninth objection, the court finds
that the 2011 regulations relied on by the defendant and by the Magistrate Judge never
became effective, even under their original effective date, until the impounding of
plaintiff’s mattress had already been ordered as a disciplinary sanction. As a result,
the court disagrees with the Magistrate Judge’s conclusion that plaintiff’s mattressdeprivation claim should be dismissed based on the discretionary function exception.

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Instead, plaintiff’s mattress-deprivation claim will be referred back to the Magistrate
Judge for further proceedings.4
The discretionary function exception as it relates to plaintiff’s out-of-cell
exercise claim is addressed under the twelfth objection.
8.
In his eighth objection, plaintiff challenges the Magistrate Judge’s failure to
address whether application of the discretionary function exception is a factual issue
for trial. Other findings stated in this order render this objection moot.
9.
Plaintiff’s ninth objection relates to the mattress deprivation claim. Plaintiff
objects to the Magistrate Judge’s reliance on regulations which became effective on
June 20, 2011, having had their original effective date of March 1, 2011 extended on
March 1, 2011 to June 20, 2011. For reasons explained below, this objection is well
taken.
The Magistrate Judge appears to have incorrectly concluded that the amended
regulations became effective in December of 2010. (For example, the Report states:
“Given the fact that the relevant regulations governing segregated housing unit
conditions were amended effective in December 2010 and the effectiveness of those
amended regulations was delayed in March 2011, AFTER DHO Haines imposed the
mattress-removal sanction upon Plaintiff in his February 2011 disciplinary
proceeding, DHO Haines could reasonably have relied on the BOP’s amended
regulation which specified that a mattress and bedding must be provided to inmates

4

Depending on how the Magistrate Judge determines future issues, proceedings may need
to address: grounds for dismissal not addressed in the Report but urged in the motion, the viability
of the mattress-deprivation claim as an FTCA claim premised on negligence per se, and whether
plaintiff should be permitted to allege or proceed with his mattress-deprivation claim as an FTCA
claim premised on intentional infliction of emotional distress.

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confined in a SHU for sleeping purposes only.” Doc. no. 52, p. 16, underlining
added.)
The amended version of the regulation, however, never became effective in
December of 2010. Rather, the amended version was adopted on December 8, 2010
to expressly become effective for the first time on March 1, 2011. See, 75 FR 7626301, 2010 WL 4956298 (F.R.) (“This rule is effective on March 1, 2011.”). The
disciplinary sanction which called for plaintiff’s mattress to be impounded (which the
court may consider at this stage because the sanction is referenced in, and is central
to, the complaint) is dated February 16, 2011. Doc. no. 36-1, p. 3 (impound mattress
from 0700-1900 while on disciplinary segregation), p. 4 (sanction signed on 2/16/11).
Once the effective date is corrected, the Report’s rationale fails because DHO Haines
was afforded no discretion by a version of the regulation not then in effect. See,
Berkovitz v. United States, 486 U.S. 531, 536 (1988) (the exception will not apply
when a federal regulation specifically prescribes a course of conduct which was not
followed because, in this event, the employee has no rightful option but to adhere to
the directive and no discretion is involved). In these circumstances it also cannot be
concluded, as the Report did, that “DHO Haines could reasonably have relied on the
BOP’s amended regulation,” doc. no. 52, p. 16 (if reasonable reliance could be
construed as the issue).
Having rejected the sole reason used by the Report to support dismissal of the
mattress-deprivation claim, this claim will not be dismissed at this stage.
10.
Plaintiff’s tenth objection also relates to the mattress-deprivation claim.
Plaintiff asserts that whether the regulations effective during 2010 or the regulations
effective in 2011 applied, sanctions listed in those regulations do not include

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“impound mattress.” Plaintiff is correct. Defendant has identified no regulation
which specifically authorized the impounding of a mattress.
11.
Plaintiff’s eleventh objection primarily pertains to the mattress-deprivation
claim. However, in this objection, plaintiff also objects, in general terms, to the
Magistrate Judge purportedly raising sua sponte the discretionary function exception.
The Magistrate Judge did not raise this issue sua sponte. See, motion to dismiss, doc.
no. 36, pp. 9-16. This aspect of plaintiff’s eleventh objection is without merit.
In the eleventh objection, plaintiff also challenges the Magistrate Judge’s
application of the discretionary function exception to the alleged failure of BOP staff
to provide plaintiff a mattress “at all for a total of 6 days over a 30-day period” and
for less time than required by the “impound mattress sanction for the other 24 days of
the 30-day period.” Doc. no. 56, p. 9. In other words, plaintiff objects to dismissal
of the “as carried out” aspect of his mattress-deprivation claim in which plaintiff
alleges that he was deprived of a mattress for periods measurably longer than called
for by the disciplinary sanction. As shown by the discussion below, this aspect of
plaintiff’s eleventh objection is well taken.
To support dismissal of this aspect of plaintiff’s claim, the Report relied on the
conclusion that the sanction (as ordered) came within the discretionary function
exception (a conclusion the court has now rejected). From that starting point, the
Report reasons that the exception is broad enough to apply even to a subsequent
abuse relating to the manner in which the ordered sanction was carried out. Doc. no.
52, p. 17. The court does not read the discretionary function exception so broadly.
Accordingly, the court disagrees with the Report’s recommendation that the “as
carried out” aspect of the mattress-deprivation claim be dismissed because it falls
within the discretionary function exception to the FTCA’s waiver of immunity. At
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least as alleged, this aspect of the mattress-deprivation claim does not come within the
discretionary function exception.
12.
In his twelfth objection, plaintiff disagrees with the Magistrate Judge’s
recommendation to dismiss the out-of-cell exercise claim, which plaintiff continues
to characterize (as he did in his complaint) as a claim of “negligent/wrongful denial
of out-of-cell exercise periods as mandated by federal regulations.” Doc. no. 56, p.
9. Plaintiff urges the same objections as those stated in his sixth objection. Thus, he
asserts that doctrines of state tort law (negligence per se as articulated in Howard v.
Zimmer, and intentional infliction of emotional distress) support his FTCA claim for
deprivation of out-of-cell exercise.
To the extent that plaintiff’s FTCA claim for out-of-cell exercise claim is
premised on an IIED theory, the court agrees with the Magistrate Judge that such a
claim is not plausible and should be dismissed.5 The court, however, declines to adopt
the recommendation that plaintiff’s second claim be dismissed, at this point, in its
entirety. The second claim is clearly alleged as a claim for negligence based on
violation of federal regulations, and plaintiff’s response brief did not discard the
negligence aspect of this claim.6 Therefore, the balance of the out-of-cell exercise

5

Following a lengthy discussion of the IIED tort, the Report states that plaintiff “has not
stated a plausible claim for negligence under Oklahoma law.” Doc. no. 52, p. 20. The court
presumes the Report intended to conclude that plaintiff had not stated a plausible claim for
intentional infliction of emotional distress under Oklahoma law.
6

See, e.g., doc. no. 49, p. 1, referring to “wrong/negligent conduct,” and plaintiff’s statements
at pp. 10 - 11 that his claims are cognizable under, inter alia, Oklahoma’s law of intentional
infliction of emotional distress.

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claim will survive this order, to be addressed by the Magistrate Judge in future
proceedings.7
13.
In his thirteenth objection, plaintiff complains that the Magistrate Judge raised
the statute of limitations issue sua sponte, when considering whether to allow plaintiff
to amend his complaint to assert Bivens claims. The Report considered possible
future Bivens amendments because plaintiff stated that he may request an opportunity
to amend to assert same. In these circumstances it was entirely appropriate, although
not required, for the Magistrate Judge to consider whether the proposed amendment
would be futile. Part of the futility inquiry may properly include consideration of
whether the proposed claims would be barred by the applicable statute of limitations.
Plaintiff complains the Report does not consider certain doctrines that might toll or
extend the limitations period. Plaintiff, however, states no particulars that might
suggest any of these doctrines even potentially apply here. This objection is without
merit.
14.
In his fourteenth objection, plaintiff complains that the Magistrate Judge should
have held a hearing or heard oral argument. Evidentiary hearings and oral arguments
are not ordinarily held on motions to dismiss, and no hearings are necessary at this
stage. This objection is without merit.

7

Because the Report evaluated plaintiff’s second claim only as an FTCA claim premised on
the intentional tort of IIED, it does not address other issues raised in the motion to dismiss including
whether the discretionary function exception applies to the second claim, whether the second claim
is cognizable under the FTCA because it arguably depends on “misrepresentation” or “deceit”, or
whether plaintiff’s second claim (or first claim) is cognizable at all under the FTCA based on other
arguments made in defendant’s moving brief and reply brief.

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Rulings
Plaintiff’s objections are DENIED IN PART and GRANTED IN PART, to
the extent indicated in the body of this order.
The Supplemental Report and Recommendation is ADOPTED IN PART.
With the minor AMENDMENT noted in this order’s discussion of plaintiff’s second
objection, the Report is ADOPTED to the extent that it sets out background
information and standards for evaluating plaintiff’s claims (i.e. the unnumbered first
part and parts II - V of the Report). The Report is also ADOPTED to the extent that
it recommends dismissal of any constitutional claims alleged under the purview of the
FTCA although such claims are dismissed without prejudice. See, n.1, supra. The
Report is also ADOPTED to the extent that it recommends dismissal with prejudice
of plaintiff’s FTCA out-of-cell exercise claim, but only to the extent that this claim
is premised on intentional infliction of emotional distress.
The motion to dismiss is GRANTED IN PART as follows. Constitutional
claims alleged under the purview of the FTCA are DISMISSED without prejudice for
lack of jurisdiction. Rule 12(b)(1), Fed. R. Civ. P.

Plaintiff’s FTCA out-of-cell

exercise claim is DISMISSED under Rule 12(b)(6) but only to the extent that this
claim is premised on intentional infliction of emotional distress. Defendant’s motion
is DENIED IN PART as follows. The motion is DENIED to the extent that it seeks
dismissal of the mattress-deprivation claim under the discretionary function exception
to the United States’s waiver of sovereign immunity provided in the FTCA. The
motion to dismiss CONTINUES TO PEND with respect to any grounds for dismissal
not addressed in the Report and not foreclosed by this order, to be considered in future
proceedings before the Magistrate Judge.

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This action is REFERRED BACK to the Magistrate Judge for all purposes
stated in the original referral including further proceedings consistent with this order.
Dated this 24th day of February, 2014.

12-0753p012.wpd

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