Wendt v. United States of America

Filing 18

MEMORANDUM OPINION. See Opinion for details. It is so ORDERED. Signed by District Judge Robert E. Payne on 4/17/2017. (sbea, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Riclunond Division

•U.S. DISTRICT COURl
RICHMOND VA

ZEBULON WENDT,
Plaintiff,
Civil Action No. 3:16cv849

v.

UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION
This matter is before the Court on DEFENDANT' s MOTION TO
DISMISS

( ECF No.

7) .

For the

reasons

set

forth below,

the

motion will be granted and the action will be dismissed for lack
of subject matter jurisdiction.
INTRODUCTION
Zebulon Wendt ("Wendt") filed this action under the Federal
Torts

Claim Act

( "FTCA")

against

the

United States

alleging

negligent conduct by the United States Marshals Service {"USMS")
while Wendt was in their custody for a court appearance at the
United States District Court in Richmond, Virginia.

The United

States seeks dismissal under Fed. R. Civ. P. 12(b) (1)
of subject matter jurisdiction.

for lack

FACTUAL BACKGROUND
On April 23,

2015,

United States Immigration and Customs

Enforcement arrested Wendt on federal charges for possession of
obscene material,

remanded him to the custody of the USMS,

and

transported him to the Pamunkey Regional Jail ("PRJ") in Hanover
County, Virginia.

(ECF No.

8-1

~

4.)

Wendt was housed at the

PRJ pursuant to an Intergovernmental Agreement

( "IGA")

between

the USMS and the PRJ that the USMS executed under its statutory
discretion to enter into such agreements. 1 (Id. ~ 5.)
The IGA allows the USMS to house federal detainees with the
PRJ at its facility.

(ECF No. 8-4 at 3.)

The agreement requires

that the PRJ "shall accept and provide for the secure custody,
safekeeping, housing,

subsistence and care of Federal detainees

in

all

accordance

regulations,

with
policies

and

operation of the Facility."
PRJ to

"provide

state
court
(Id.)

and

local

orders

laws,

standards,

applicable

to

the

The IGA further requires the

transportation and escort

guard

services

for

Federal detainees housed at its facility to and from the U.S.
Courthouse."

(Id. at 1, 7.)

USMS does not supervise PRJ's day-

to-day operations but retains the right to inspect the facility
at its discretion.

1

See 18

u.s.c.

§§

(Id. at 3, 12.)

4002, 4013.
2

On July 16,

2015,

PRJ officers transported Wendt from the

PRJ to the United States District Court in Richmond,
for

an

initial

appearance.

{ECF No.

11 6.)

8-1

parked within the sally port at the courthouse,
into the elevator,

Virginia

PRJ

officers

escorted Wendt

then took him to the USMS processing area

within the USMS secure cellblock of the courthouse.

11 7. )

(Id.

At the time, Wendt was wearing leg irons, a belly chain, a black
(Id. 1111 6-7.)

box, and handcuffs.
custody

of

Wendt

to

USMS

PRJ officers then transferred

deputies,

who,

under

normal

USMS

practices, would have removed Wendt's handcuffs, black box, and
belly

chain,

initial

but

not

appearance.

his

leg

irons,

11 8;

{Id.

ECF

in

No.

preparation
11~

8-9,

for

5-6.)

the
USMS

deputies would then escort Wendt f rem the USMS processing area
on the second floor of the courthouse to the courtroom for the
initial appearance
would

have

appearance.

(ECF No.

waited

in

the

Wendt

(Id.)

11 9; ECF No.

8-1,

does

courtroom
not

during

contend

~

8-9,

that

the
there

6)

and

initial
was

any

deviation from these standard practices.
After Wendt' s

initial

him out of the courtroom,
USMS

processing

area

on

appearance,

USMS

onto the elevator,
the

second

floor.

deputies

escorted

and back to the
(Id. )

USMS

then

transferred custody of Wendt to PRJ officers within this area.
(ECF No.

8-1

~

10,

8-9

~

officers placed handcuffs,

7.)

Following normal protocol,

a black box,
3

PRJ

and a belly chain back

on Wendt,

and

then escorted him down

the

hall

and onto

the

second floor elevator for transport to the basement and onto the
PRJ van.

(ECF No. 8-1

The

incident

~

10, 8-9

that

~

forms

6, 7.)
the

basis

for

Wendt's

claim

occurred in the elevator while Wendt was in the custody of PRJ
officers.
Report,

(ECF No.

~

8-1,

dated July 16,

"escorted

Plaintiff

10.)

2015,

to

According to the PRJ Incident
PRJ Officers Walker and Overton

the

elevator

inside

courthouse to load him into the transport van. "

the

federal

( ECF No.

8- 8 . )

Wendt "stepped over the threshold at the elevator door and his
leg iron got caught in the track. "

( ECF No.

8 - 7. )

Wendt fell

and hit his head on the metal elevator floor, suffering injuries
to his forehead,
USMS

deputy

nose,

was

incident occurred.
from

Court

and left ankle.

reported
(ECF No.

Security

present
8-9

Officers

~

of

at
9.)
the

(Id.,
the

ECF No. 8-8.)
time

the

No

alleged

After receiving notice
alleged

incident,

USMS

deputies arrived at the site of the incident and assisted PRJ
officers

in administering first

aid to Wendt.

(ECF No.

8-8.)

Wendt was escorted to the PRJ van for transport back to PRJ a
short time thereafter.
PRJ the same day.

(Id.)

He received medical treatment at

(Id. )

4

PROCEDURAL BACKGROUND

On December 2, 2015, Wendt properly filed an administrative
claim

with

damages.

the

Department

(ECF No. 12-2.)

December 10,

2015,

of

Justice

seeking

$100,000

The Department of Justice responded on

acknowledging receipt of the administrative

claim and seeking further evidence to support it.

(Id.)

counsel

Department

provided

in

additional

documents

to

the

Justice on December 14, 2015 and March 23,

2016.

Wendt's
of

(ECF No. 17.)

From the record, the disposition of Wendt's administrative claim
is unclear.
On October 19, 2016, Wendt filed a FTCA action, 28
1364 (b) ,

2671-2800,

§§

against

the

United

u.s.c.

States,

§

which

responded on February 23, 2017 with a motion to dismiss for lack
of subject matter jurisdiction under Fed. R. Civ. P. 12(b) (1).
LEGAL STANDARD

A defendant may challenge subject matter jurisdiction under
Fed.

R.

Civ.

P.

12(b) (1)

in two separate ways.

United States,

585 F.3d 187, 192

(4th Cir.

v.

F.2d

(4th

Bain,

697

defendant

may

1213,

attack

1219

the

2009)

Cir.

sufficiency

See Kerns

of

(citing Adams

1982)).
the

v.

First,

a

complaint's

jurisdictional allegations.

Id.

In the alternative,

a defendant

may

of

the

allegations

attack

the

veracity

jurisdictional

themselves. Id. Under the latter approach, a court may consider

5

evidence outside the pleadings to determine whether facts exist
to

support

subject

matter

States, so F.3d 299, 304
proceeding,

jurisdiction.

Williams

(4th Cir. 1995).

in this motion,

v.

United

The United States is

under the alternative approach and

has submitted several affidavits and documents in support of its
motion.
"The plaintiff bears
matter
the

jurisdiction is

party

pointing

who

sues

to

the burden of persuasion if subject

challenged under Rule

the
an

United

States

unequivocal

(internal citations omitted).

12 (b) (1)

bears

waiver

of

the

because

burden

immunity. /1

of
Id.

"Sovereign immunity can be waived

only by the sovereign; the circumstances of this waiver must be
scrupulously observed and not expanded by the courts." Kokotis
v.

United

2000) .

All

sovereign.
1996) .

States

Postal

ambiguities
Robb v.

Serv.,
must

223

be

United States,

F. 3d

resolved
80

275,
in

F. 3d 884,

278
favor
887

(4th

Cir.

of

the

(4th Cir.

In the absence of a waiver of sovereign immunity,

Court lacks the power to hear the case,

the

and the claim must be

dismissed. United States v. Testan, 424 U.S. 392, 399 (1976).

DISCUSSION

The United States asserts that Wendt was under the custody
and supervision of independent contractors at the time of the
incident in which he was injured and that the United States has

6

not,

in that circumstance,

waived its sovereign immunity from

suit.
Generally, the 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 the court's jurisdiction
to entertain the suit.

Lehman v.

/1

Nakshian,

(1981); Federal Deposit Ins. Corp. v. Meyer,
(1994)

156,

160

510 U.S. 471, 475

("Absent a waiver, sovereign immunity shields the Federal

Government

and

limited waiver

its

agencies

of

from

sovereign

suit. 11 ) .

immunity

employees of a federal agency,

Importantly,

The

for

FTCA grants

torts

or their agents,

scope of their employment. See 28 U.S.C.

§§

a

committed by
acting in the

1346(b), 2671, 2674.

the FTCA constrains the term "federal agency"

explicitly exclude
2671.

u. S.

453

"any contractor with the United States.

to
/1

§

Thus, Congress did not waive the United States' sovereign

immunity

for

injuries

caused

by

the

actions

of

independent

contractors performing work for the United States.

See United

States v.

80 F.3d at

Orleans,

425 U.S.

807,

814

(1976);

Robb,

887.
As

a

waiver

of

sovereign

immunity,

the

FTCA

is

to

be

strictly construed and all ambiguities must be resolved in favor
of

the

sovereign.

independent

Robb,

contractor

80

F.3d

exception

at
to

887.
the

Consequently,

waiver

of

the

sovereign

immunity has been construed broadly. Id. Whether a person is an
7

independent contractor or an employee is determined by federal
law. Id.; see Logue v. United States, 412 U.S. 521, 528 (1973).
The
whether,

analytical

framework

v.

well-settled

for the purposes of the FTCA,

employee or agent,
States.

is

for

determining

a person is a

federal

or an independent contractor for the United

Under the Supreme Court instructions set out in Logue

United States,

the

"critical factor"

for distinguishing an

employee or agent from an independent contractor is whether the
United States has the power "to control the detailed physical
performance
Orleans,

of

the

425 U.S.

contractor."

at 814.

412

U.S.

at

528;

see

also

The Fourth Circuit has interpreted

Logue's "control test" to mean that sovereign immunity is waived
only where the United States "actually supervises the
day operations'

of

the

endeavor."

Williams,

\day-to-

F.3d at

SO

306.

Furthermore, in Wood v. Standard Products Co., 671 F.2d 825, 832
(4th

Cir.

1982),

the

Fourth

Circuit

noted

that

government

supervision of day-to-day operations must relate to "the primary
activity contracted for and not the peripheral,

administrative

acts relating to such activity."
In Williams,

the Court of Appeals

found that

the United

States did not waive sovereign immunity in a slip-and-fall case
where

the

United

Meridian,

to

facility.

Id.

States

provide
In

had

contracted

maintenance

making

that
8

with

services

determination,

a

third-party,

for
the

a

federal
Court

of

Appeals looked to the conduct of the parties rather than to the
terms

of

the

Meridian

contract.

was

responsible

an

for

The

Court

independent

of

Appeals

contractor

the daily operations of

concluded

because
the

that

Meridian

was

facility and the

United States neither supervised nor controlled the day-to-day
operations or the custodial duties.
further cited,
standing

with approval,
the

for

safeguards,

directives

work
and

or

the

that

right

require

standards,

The Court of Appeals

cases from several jurisdictions

proposition

including

contractor's

Id.

to

certain

inspect

adherence

does

not

an

to

contractual
independent

United

convert

an

States

independent

contractor into an employee or agent of the United States.

Id.

at 306-07.
This

principle

applies

with

equal

force

to

the

IGA

issue, as this Court held in Johnson v. United States,
572312

at

f

(E.D.

*4

Va.

Mar.

7,

2006).

In

at

2006 WL

Johnson,

an

intergovernmental contract between USMS and Virginia Peninsula
Regional

Jail

"housing,

("VPRJ")

safekeeping,

required
and

that

subsistence

VPRJ
of

provide

federal

for

the

prisoners."

While USMS retained the right to perform "periodic inspections"
of

the

VPRJ

facility,

safeguard did
States

is

not

not

contractor."

Id.

the

Court

"nullify the

responsible

for

held

general
the

that

this

contractual

rule

that

the

actions

of

an

United

independent

The Court then applied the Williams "control"
9

test

and

concluded,

by

undisputed

facts

independent

contractor

examining

between

the

because

both

the

that

parties,
USMS

contract

did not

and

the

was

an

VPRJ

supervise

VPRJ's

day-to-day operations. Id.
It

is

clear

that

PRJ,

including

Officers

Overton

and

Walker, are independent contractors and not federal employees or
agents.

USMS contracted with PRJ for the "custody, safekeeping,

housing, subsistence and care of Federal detainees in accordance
with all state and local laws, standards, regulations, policies
and court orders applicable to the operation of the Facility."
{ECF No. 8-4, at 3.}

The IGA further requires that PRJ ''provide

transportation and escort guard services for Federal detainees

u. s. Courthouse." {Id. at

housed at its facility to and from the
7.}

Similar to the intergovernmental agreement in Johnson,

the

IGA allows periodic inspections of the Facility by the United
States

but

operations.
provision

places
As

in

responsibility
Williams

empowering

the

and
United

"detailed physical performance"

on

PRJ

Johnson,
States

in the

for

its

the
to

day-to-day

IGA

lacks

control

execution of

the

a

PRJ' s
IGA.

Nothing in the IGA suggests that the PRJ falls under the FTCA
definition of "employee of the government."

Thus,

PRJ and its

employees are independent contractors of the United States for
the purposes of the FTCA.

10

Furthermore,

as

the

United

States

aptly

points

out

and

Wendt does not dispute, at the time of the incident Wendt was in
the

custody

personnel

of

were

PRJ

Officers

involved

deputy

supervise

after

they

the

resumed

in

Overton

the

and

incident.

actions

of

control

over

Walker.
Nor

Officers
Wendt

No

USMS

did any USMS

Overton
when

and
the

Walker
initial

appearance concluded and Wendt was returned to the custody of
those PRJ officers.
Because

Wendt

was

under

the

custody

contractors at the time of the incident,

independent

the United States did

not waive sovereign immunity under the FTCA.
Court lacks subject matter jurisdiction.

of

Accordingly, this

The DEFENDANT'S MOTION

TO DISMISS (ECF No. 7) will be denied without prejudice.
In response to the DEFENDANT' s MOTION TO DISMISS

(ECF No.

7), Wendt filed a motion seeking to join the Pamunkey Regional
Authority and Officers Overton and Walker as defendants.
stated above,

As

these parties are independent contractors and no

colorable claim under the FTCA may be made against them.

Nor

would joining these parties as defendants disturb the conclusion
that this Court lacks subject matter jurisdiction.
circumstance,

PLAINTIFF'S

MOTION

TO

JOIN

Under that

PAMUNKEY

REGIONAL

AUTHORITY AND OFFICERS OVERTON AND WALKER AS DEFENDANTS IN THE
ABOVE-STYLED MATTER (ECF No. 13) must be denied.

11

CONCLUSION

For
DISMISS

the

foregoing

(ECF No.

dismissed

without

7)

reasons,

will

the

DEFENDANT'S

be granted and the

prejudice,

and

PLAINTIFF'S

MOTION

TO

action will

be

MOTION

TO

JOIN

PAMUNKEY REGIONAL AUTHORITY AND OFFICERS OVERTON AND WALKER AS
DEFENDANTS

IN

THE

ABOVE-STYLED

MATTER

(ECF

No.

13)

will

denied.
It is so ORDERED.

/sf
Robert E. Payne
Senior United States District Judge

Richmond, Virginia
Date: April .....i~...1 2017

12

be