Johnson v. United States Of America, Federal Bureau of Prisons et al
Filing
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MEMORANDUM OPINION. Signed by District Judge Elizabeth K. Dillon on 8/30/18. (kld)
8/30/18
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION
JAMES B. JOHNSON,
Plaintiff,
v.
UNITED STATES OF AMERICA, et al.,
Defendants.
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Civil Action No.: 5:17-cv-00012
By: Elizabeth K. Dillon
United States District Judge
MEMORANDUM OPINION
Plaintiff James B. Johnson, proceeding pro se, brings this action seeking medical costs
and compensatory damages for defendants’ alleged negligence. On March 15, 2018, the court
entered a memorandum opinion and order addressing defendant Hope Village, Inc’s motion to
dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) and the United States’
motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The complaint
contained a slip-and-fall negligence claim, and the court liberally construed the complaint to
include a second negligence claim for delay in receiving medical care. Because neither
defendant had addressed the liberally-construed claim, the court treated both defendants’ motions
as partial motions to dismiss and granted both partial motions as to the slip-and-fall claim.
Additionally, because it concluded that the United States alone, and not the Federal Bureau of
Prisons (BOP), may be properly named in this Federal Tort Claims Act (FTCA) action, the court
substituted the United States as the sole defendant for those alleged acts or omissions of BOP.
The court allowed Johnson to amend the complaint with regard to his slip-and-fall claim
against Hope Village, which he has done. (Am. Compl., Dkt. No. 43.) The United States has
responded to the liberally-construed negligence claim by filing a motion to dismiss the amended
complaint under Federal Rule of Civil Procedure 12(b)(1), and Hope Village has also filed a
motion to dismiss under Rule (12)(b)(1), Rule 12(b)(6) or, in the alternative, for summary
judgment. The motions have been fully briefed. For the following reasons, the court will grant
both motions.
I. INTRODUCTION
The court incorporates the factual background set out in its March 15 memorandum
opinion. (Mem. Op. 2–3, Dkt. No. 41.) The court notes, however, that the amended complaint
omits Johnson’s allegation in the original complaint that his slip and fall “resulted from
negligence by the Defendants to ensure against slippery and hazardous conditions.” (Compl. 2,
Dkt. No. 3.)
The amended complaint includes an affidavit from Johnson. In it, he states that,
“[b]efore electing for an optional transfer to Hope Village,” Johnson researched Hope Village
and read a review that indicated it was “grossly incompetent, systemically deficient and
deliberately indifferent.” (Johnson Aff. 6, Dkt. No. 43.) Nevertheless, Johnson transferred to
Hope Village, where he slipped on wet steps. At his first appointment with Dr. Amy Morgan at
Unity Healthcare, Dr. Morgan “congratulated” Johnson for securing the appointment because
“Hope Village was poorly managed.” (Am. Compl. 1, Dkt. No. 43.) Johnson attended medical
appointments at Unity Healthcare on at least three different days in February 2016, and he
received an x-ray at Providence Hospital in early March. Dr. Morgan also ordered an MRI, and
she explained that surgery would have to be scheduled, if at all, before he was released from
Hope Village. (Id. at 1–2.)
Dr. Morgan gave Johnson the name and number of “Nurse Heggs, who would coordinate
the MRI.” (Id. at 2.) After weeks without an MRI appointment, Johnson spoke with Heggs, who
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stated that Hope Village had not yet processed the request. Because Johnson was due to be
released from Hope Village on May 3, 2016, Heggs said she would call Hope Village to make
sure the request was processed. The MRI was scheduled for April 29, but Unity Medical Center
(UMC), the MRI provider, postponed the MRI until May 3 due to “a mechanical issue.” (Id.)
Additional facts are discussed in context.
II. DISCUSSION
A. Standard of Review Under Federal Rule of Civil Procedure 12(b)(1)
A motion to dismiss under Rule 12(b)(1) tests the court’s subject-matter jurisdiction over
a plaintiff’s claim. The plaintiff bears the burden of establishing that subject-matter jurisdiction
exists. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). In deciding a Rule
12(b)(1) motion, “the district court is to regard the pleadings as mere evidence on the issue, and
may consider evidence outside the pleadings without converting the proceeding to one for
summary judgment.” Id. (quoting Richmond, Fredericksburg & Potomac R.R. Co. v. United
States, 945 F.2d 765, 768 (4th Cir. 1991)). It must, however, “view[ ] the alleged facts in the
light most favorable to the plaintiff, similar to an evaluation pursuant to Rule 12(b)(6).” Lovern
v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999). Dismissal under Rule 12(b)(1) is proper “only if
the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a
matter of law.” Evans, 166 F.3d at 647 (quoting Richmond, Fredericksburg & Potomac R.R.,
945 F.2d at 768).
B. The United States’ Motion to Dismiss
The United States moves to dismiss the amended complaint under Federal Rule of Civil
Procedure 12(b)(1) because it argues that the independent contractor exception to the FTCA bars
Johnson’s claim for negligent delay in providing medical treatment.
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1. The court lacks subject-matter jurisdiction over Johnson’s claim against the United
States for negligent delay in medical care.
The plain language of the FTCA precludes imputing liability for actions of independent
contractors. 28 U.S.C. §§ 1346(b)(1), 2671; Logue v. United States, 412 U.S. 521, 525–27
(1973). Whether a person is a contractor or a federal employee for purposes of the independent
contractor exception is determined under federal law. Robb v. United States, 80 F.3d 884, 887
(4th Cir. 1996) (citing Logue, 412 U.S. at 528). When interpreting the FTCA, the Fourth Circuit
has made clear that the United States will not be liable for negligent acts of independent
contractors unless the United States supervised the “day-to-day operations” of the contractors.
Williams v. United States, 50 F.3d 299, 306 (4th Cir. 1995) (internal citations omitted). “Stated
differently, a court must consider whether the government exercises day-to-day control over the
performance of the work under the contract.” Berkman v. United States, 957 F.2d 108, 112 (4th
Cir. 1992). Establishing standards, supplying financial support, providing advice and oversight,
and inspecting and approving final work—all in order to ensure that federal funds are not used
on unauthorized expenditures—does not give the federal government the “day-to-day control”
necessary for the United States to be held liable for the contractors’ actions. See United States v.
Orleans, 425 U.S. 807, 818 (1976). The plaintiff bears the burden of showing a waiver of
sovereign immunity and that none of the FTCA exceptions apply. See Welch v. United States,
409 F.3d 646, 651 (4th Cir. 2005).
Just as with Johnson’s slip-and-fall claim, the court concludes that the independent
contractor exception applies to immunize the United States from any alleged liability as to
Johnson’s claim for negligent delay in medical care. No allegation or evidence indicates that the
United States exercised day-to-day control over Hope Village employees. Johnson concedes that
“Hope Village is an independent contractor” and that “Hope Village is responsible for the day to
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day operations of its facility and its own employees; the United States is not.” (Pl.’s Opp’n 3,
Dkt. No. 49.) The independent contractor exception applies to Johnson’s claim against the
United States for negligence as to his delay in medical care. See Phillips v. Fed. Bureau of
Prisons, 271 F. Supp. 2d 97, 101 (D.D.C. 2003) (dismissing FTCA claim because of independent
contractor exception and noting that BOP “does not involve itself with the day-to-day business of
Hope Village and keeps a distance from the ‘halfway’ house”). Thus, this claim against the
United States must be dismissed for lack of jurisdiction.
2. The court also lacks subject matter jurisdiction over Johnson’s claim for negligent
oversight
Johnson’s response in opposition also raises a claim of negligent oversight against the
United States. Johnson argues that he “does NOT allege ‘tort liability which might otherwise
arise from the performance of duties which were reasonably delegated to the contractor,’” but
instead “alleges a tortuous [sic] claim of negligence against the United States predicated upon a
culture and climate of incompetence and indifference within the BOP to responsibly provide
oversight of Hope Village.” (Pl.’s Opp’n 5.) In particular, Johnson asserts that the “United
States provides specious oversight of the BOP, which is known to provide shoddy oversight of
Hope Village.” (Id. at 9.)
In response, the United States argues that the court should not consider Johnson’s claim
because he raises it for the first time in his response. But, in keeping with “[p]rinciples requiring
generous construction of pro se complaints,” Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985), the court will consider the claim.
Even so, the court concludes that it lacks jurisdiction over Johnson’s claim for negligent
oversight. The FTCA excludes discretionary functions from its waiver of sovereign immunity.
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See 28 U.S.C. § 2680(a). This discretionary function exception provides that the sovereign
immunity waiver does not apply to:
any claim based upon an act or omission of an employee of the Government,
exercising due care, in the execution of a statute or regulation, whether or not
such statute or regulation be valid, or based upon the exercise or performance or
the failure to exercise or perform a discretionary function or duty on the part of
the federal agency or an employee of the Government, whether or not the
discretion involved be abused.
Id. “To state a claim under the FTCA, a plaintiff has the burden of stating a claim for a state-law
tort and establishing that the discretionary function exception does not apply.” Spotts v. United
States, 613 F.3d 559, 569 (5th Cir. 2010). If the exception does apply, the court “must dismiss
the affected claims for lack of subject matter jurisdiction.” Indem. Ins. Co. v. United States, 569
F.3d 175, 180 (4th Cir. 2009). As this court has explained, “[g]overnment contracts that delegate
primary responsibility over services while leaving to itself an oversight role are examples of
policy choices protected by the discretionary function exception.” Blankenship v. United States,
210 F. Supp. 3d 857, 860 (W.D. Va. 2016). And, as was true in Blankenship, Johnson has failed
to identify a federal statute, regulation, or policy that would place the BOP’s supervision of Hope
Village outside the scope of the discretionary function exception. See id. at 861.
Applying these principles, courts have dismissed claims similar to the negligent oversight
claim at hand on the basis of the discretionary function exception. See, e.g., Lopez v. United
States Immigration & Customs Enf’t, 455 F. App’x 427 (5th Cir. 2011) (dismissing FTCA action
as barred by the discretionary function exception where plaintiff asserted the United States
Marshals Service (USMS) committed negligence with respect to its failure to oversee medical
care at contracted correctional center); Ahern v. United States, No. 2:14-cv-259, 2017 WL
2215633, at *10 (S.D. Tex. May 19, 2017) (dismissing FTCA action as barred by discretionary
function exception where plaintiff asserted that individuals from USMS acted negligently with
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respect to his medical care); Johnson v. United States, No. 4:05–cv-40, 2006 WL 572312, at *6
(E.D. Va. Mar. 7, 2006) (dismissing FTCA action as barred by discretionary function exception
where plaintiff asserted that the USMS was negligent with respect to contracted jail’s failure to
provide medical care).
Johnson has not set forth any allegations to show that the BOP’s “supervision” of Hope
Village was not a discretionary function. Because Johnson has failed to meet his burden of
establishing that the discretionary function exception does not apply, the court will dismiss his
claim for negligent oversight for lack of subject matter jurisdiction.1
C. Hope Village’s Motion to Dismiss, or in the Alternative, for Summary Judgment
Hope Village moves to dismiss the amended complaint under Federal Rule of Civil
Procedure 12(b)(1) or under Rule 12(b)(6) or, in the alternative, for summary judgment, on
several grounds. First, it argues that Johnson failed to exhaust his administrative remedies.
Second, it contends that his amended complaint fails to state a claim upon which relief may be
granted. And third, it asserts that it is entitled to summary judgment because the undisputed facts
establish that Johnson’s negligence claim fails..
With regard to its failure-to-exhaust argument, Hope Village mistakenly relies on the
exhaustion requirement set forth in the Prison Litigation Reform Act (PLRA). 42 U.S.C.
§ 1997e(a) (“No action shall be brought with respect to prison conditions under section 1983 of
this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are exhausted.”) But the text of that
provision itself is clear that it does not apply to a former inmate who has been released and is not
a prisoner at the time he files his complaint, and the Fourth Circuit has so held. Cofield v.
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Even if the court had jurisdiction, the claim would fail because Johnson has not shown that any failure to
supervise proximately caused his injury. See infra at Section II.C (discussing lack of proximate causation as to the
related claim against Hope Village).
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Bowser, 247 F. App’x 413, 414 (4th Cir. 2007); see also Lesesne v. Doe, 712 F.3d 584, 588
(D.C. Cir. 2013) (collecting authority and noting that every court of appeals to have addressed
the issue has held that PLRA exhaustion is not required of a plaintiff who is not confined when
his complaint is filed). Johnson filed his initial complaint in this matter on February 17, 2017,
but he was released from Hope Village custody on May 3, 2016. Thus, the PLRA’s exhaustion
requirement does not apply to his claims in this case. Accordingly, the court will not dismiss the
amended complaint based on any failure by Johnson to exhaust administrative remedies.
With regard to Hope Village’s motion to dismiss under Rule 12(b)(6) and its alternate
motion for summary judgment, the court turns first to the slip-and-fall claim. The court
previously dismissed this claim due to a lack of supporting factual allegations. Johnson’s
amended complaint does nothing to remedy those deficiencies. Indeed, in his amended
complaint, he does not even include the most cursory of allegations in his original complaint and
may not even be asserting a slip-and-fall claim.2 Regardless, the factual allegations are
insufficient, and so that claim against Hope Village will be dismissed.
With regard to Johnson’s claim that Hope Village was negligent due to a delay in
scheduling his MRI, the court first notes that neither Hope Village nor Johnson have pointed the
court to any cases addressing a similar type of negligence claim, i.e., one based on a failure to
timely order a diagnostic test in which the plaintiff seeks primarily financial damages (rather
than damages for personal injuries). That is, Johnson is arguing that the BOP would have paid
for the surgery had he still been at Hope Village, but once released, he was responsible for the
cost of the surgery. Thus, his claim appears to be more in the vein of a negligence claim causing
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To the extent Johnson argues in his response to the motion to dismiss that he intended to include such a
claim, that cannot save (or revive) his claim. He did not, and he cannot assert it through a response to a dispositive
motion. In any event and applying liberal construction, even his response fails to allege sufficient facts for such a
claim to survive a motion to dismiss.
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only property damage. Similarly, neither party has cited to any cases regarding the standard of
care in this situation or cited to any cases discussing whether the facts here would support a
finding that the applicable standard of care was breached. The court is thus left without the
benefit of any authority from the parties to guide its inquiry.
Nonetheless, under the District of Columbia law applicable here,3 it is clear that
[t]he plaintiff bears the burden of presenting evidence “which
establishes the applicable standard of care, demonstrates that this
standard has been violated, and develops a causal relationship
between the violation and the harm complained of.” In negligence
actions the standard of care by which the defendant’s conduct is
measured is often stated as “that degree of care which a reasonable
prudent person would have exercised under the same or similar
circumstances.”
Pannu v. Jacobson, 909 A.2d 178, 201 (D.C. 2006) (quoting Morrison v. MacNamara, 407 A.2d
555, 560 (D.C. 1979)). The court concludes that Johnson has failed to meet this burden.
Hope Village has challenged that Johnson has not presented evidence of delays caused by
it and notes evidence showing that certain delays were beyond its control in the scheduling of his
MRI, including delays—admitted by Johnson—in the medical provider’s availability and
equipment problems. In response, Johnson has failed to point to sufficient facts to support this
negligence claim.
For example, he has not presented any facts to show the precise delay here. His amended
complaint alleges a delay of “upwards of seven weeks,” (Am. Compl. ¶ 8), but the evidence in
the record suggests that the delay was, at most, one month. In support of its motion, Hope
Village has offered an affidavit from the administrative director of Hope Village, Joseph Wilmer.
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As this court noted in its earlier opinion, “[s]ince this court’s jurisdiction with respect to Hope Village is
based upon diversity, the choice-of-law rules of the forum state, Virginia, must apply. See ITCO Corp. v. Michelin
Tire Corp., 722 F.2d 42, 49 n.11 (4th Cir. 1983), cert. denied, 469 U.S. 1215 (1985)). Under Virginia’s choice-oflaw principles, tort claims are governed by the law of the state where the alleged harm occurred. Vicente v.
Obenauer, 736 F. Supp. 679, 690 (E.D. Va. 1990); see also Jones v. R. S. Jones & Assoc., 246 S.E.2d 33, 34 (Va.
1993). As stated above, Johnson slipped and fell at Hope Village, which is located in the District of Columbia.
Thus, the court applies the District of Columbia’s substantive law.” (March 15 Mem. Op. 4, Dkt. No. 41.)
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Mr. Wilmer explains that it is required by its contract with the BOP to seek BOP approval for
residents to receive medical treatment in the community, absent a medical emergency. “Upon
receipt of BOP approval, the resident is then scheduled for treatment with the medical provider at
the first available date.” (Wilmer Aff. ¶ 2, Dkt. No. 47-2.) To obtain that approval, Hope
Village submits a specific form to the BOP. Attached to Wilmer’s affidavit are documents he
describes as true and correct copies of documents culled from Johnson’s file. They reflect that
Hope Village requested approval for Johnson’s MRI on April 7, 2016, and that the request was
approved by the BOP the following day. Johnson does not contest these dates, nor does he offer
any facts to contradict that his MRI was scheduled at the first available date.
Johnson also has not identified the specific date that Dr. Morgan ordered the MRI or
when Hope Village learned of it, other than to aver that it was at some point after she received
and reviewed the March 8 x-ray. But construing the (somewhat vague) facts in his favor, based
on his own affidavit, a jury could find that Hope Village knew the MRI had been ordered on or
about March 8, and failed to take any steps to obtain an MRI until April 7. Thereafter, there is
nothing in the record that could attribute any delay in the appointment to Hope Village. Johnson
has not shown when Hope Village called to make the MRI appointment, which was originally
scheduled for April 29, 2016. Likewise, Johnson has failed to present any evidence that there
was an appointment available earlier such that any earlier call would have resulted in an earlier
appointment. Thus, viewing all of the facts in the light most favorable to Johnson, the jury could
find that Hope Village failed, for a period of—at most—about a month (March 8 to April 7) to
request approval for his MRI.
Notably, however, Johnson has presented no information at all as to what type of delay
might be typical in this circumstance (either at Hope Village or at any other similar facility), nor
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has he submitted any other facts calling into question the reasonableness of that delay.
Especially given that many medical appointments are scheduled months out from the date of a
request, this absence of information is noteworthy.
Additionally, Johnson has not presented any information to show that any of the people
responsible for the scheduling of the appointment were aware of any great urgency to the
situation. In particular, while the financial consequences for Johnson may have been
significant,4 there is no indication in the records that this was an emergency surgery or that it was
crucial that it be done immediately for health reasons. Indeed, the primary injury that he alleges
caused his knee problems occurred in 2013, and he still has not had the surgery. So, it is hard to
see how anyone at Hope Village would think there was a medical need for urgency.
In short, while what is “reasonable under all the circumstances” in a negligence case is
typically a jury question, the court cannot find that the facts here could allow a reasonable jury to
find that Hope Village acted negligently due to this brief delay.
Furthermore, Johnson has alleged that the harm he suffered was not having his surgery
before his release. (Am. Compl. ¶ 11 (alleging that had the scheduling of the MRI not been
delayed, his knee “surgery would have been ordered within days of the MRI.”).) This allegation,
however, is not supported by any facts and based purely on Johnson’s own speculation. Thus, he
has failed to put forth evidence that Hope Village’s alleged negligence was the proximate cause
of his injury, i.e., his failure to obtain the surgery before his release. His claim also fails for this
reason—a complete lack of facts to establish causation.
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On the other hand, as Hope Village notes, Johnson may have been eligible upon his release for
Medicaid, and he also was advised during his February 10, 2016 visit to Unity that he would be eligible for
insurance upon release from the half-way house if further treatment was necessary. (Hope Village Supp. Mem. 14,
Dkt. No. 47.)
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Accordingly, the court will grant the summary judgment motion as to the claim that Hope
Village was negligent based on some delay in scheduling Johnson’s MRI.
III. CONCLUSION
For the reasons stated above, the court will grant the United States’ motion to dismiss,
grant Hope Village’s motion to dismiss the slip-and-fall claim, and grant Hope Village’s motion
for summary judgment on the second negligence claim. An appropriate order will follow.
Entered: August 30, 2018.
/s/ Elizabeth K. Dillon
Elizabeth K. Dillon
United States District Judge
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