CHAPPELL v. UNITED STATES OF AMERICA

Filing 51

MEMORANDUM OPINION AND ORDER OVERRULING PLAINTIFF'S OBJECTIONS [DKT. NO. 50 ], ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 48 ], AND DISMISSING COMPLAINT WITHOUT PREJUDICE [DKT. NO. 1 ]: The Court ADOPTS the Report and Recommendation (Dkt. N o. 48 ); OVERRULES Chappell's objections (Dkt. No. 50 ); GRANTS the defendant's motion to dismiss for lack of subject matter jurisdiction (Dkt. No. 29 ); DENIES as MOOT the defendant's motion to dismiss for failure to state a claim or, in the alternative, for summary judgment (Dkt. No. 29 ); and DISMISSES Chappell's FTCA claims WITHOUT PREJUDICE for lack of subject matter jurisdiction (Dkt. No. 1 ). The Court directs the Clerk to enter a separate judgment order. Signed by Senior Judge Irene M. Keeley on 8/22/2018. (Copy to PS Plaintiff via CM, RRR.) (wrr) (Additional attachment(s) added on 8/22/2018: # 1 Certified Mail Return Receipt) (wrr).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
BRYAN CHAPPELL,
Plaintiff,
v.

CIVIL ACTION NO. 1:16CV206
(Judge Keeley)

UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION AND ORDER OVERRULING PLAINTIFF’S OBJECTIONS
[DKT. NO. 50], ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 48],
AND DISMISSING COMPLAINT WITHOUT PREJUDICE [DKT. NO. 1]
Pending before the Court is the Report and Recommendation of
United States Magistrate Judge Robert W. Trumble, recommending
dismissal of the complaint filed by the pro se plaintiff, Bryan
Chappell (“Chappell”). For the reasons that follow, the Court
ADOPTS the Report and Recommendation (Dkt. No. 48), GRANTS the
defendant’s

motion

to

dismiss

for

lack

of

subject

matter

jurisdiction (Dkt. No. 29), and DISMISSES Chappell’s complaint
WITHOUT PREJUDICE (Dkt. No. 1).
I. BACKGROUND
On September 26, 2016, pursuant to the Federal Tort Claims
Act,

28

U.S.C.

§§

2671,

et

seq.

(“FTCA”),

Chappell

filed

a

complaint against the United States (“the defendant”) in the United
States District Court for the Southern District of Indiana (Dkt.
No. 1). Pursuant to 28 U.S.C. § 1402(b), and because Chappell’s
claim arises from his incarceration at USP Hazelton, a federal

CHAPPELL V. USA

1:16CV206

MEMORANDUM OPINION AND ORDER OVERRULING PLAINTIFF’S OBJECTIONS
[DKT. NO. 50], ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 48],
AND DISMISSING COMPLAINT WITHOUT PREJUDICE [DKT. NO. 1]
correctional institution located in the Northern District of West
Virginia, the case was transferred to this Court on October 28,
2016 (Dkt. No. 8).1
In his complaint, Chappell alleges that certain officers
employed by the Bureau of Prisons (“BOP Officers”) intentionally
injured him during a medical transport from USP Hazelton to a local
hospital (Dkt. No. 15). Specifically, he alleges that, when he
advised the Officers that his leg shackles were too tight, they “in
turn . . . tightened the shackles,” and then “intentionally left
[him] shackled to a [hospital] bed, with the restraints cutting
into [his] legs.” Id. at 6. He further alleges that one of the
Officers later “warned . . . that he would kill [him] if he
reported” the incident, placing him “in fear for [his] life.” Id.
at 6, 9. As a result of the cuts to his legs, Chappell allegedly
suffers from “permanent scarring, disfigurement, [and] great pain.”
He seeks $150,000 in damages. Id. at 9.
Pursuant to 28 U.S.C. § 636 and this Court’s local rules, the
Court referred the complaint to Magistrate Judge Trumble for
initial review and a Report and Recommendation (“R&R”). Thereafter,

1

Shortly thereafter, on November 21, 2016, Chappell filed his
complaint on the court-approved form (Dkt. No. 15).
2

CHAPPELL V. USA

1:16CV206

MEMORANDUM OPINION AND ORDER OVERRULING PLAINTIFF’S OBJECTIONS
[DKT. NO. 50], ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 48],
AND DISMISSING COMPLAINT WITHOUT PREJUDICE [DKT. NO. 1]
the defendant moved to dismiss Chappell’s complaint for lack of
subject matter jurisdiction and for failure to state a cognizable
claim.

Alternatively,

it

moved

for

summary

judgment

on

his

“contradictory and factually unsupported” claims (Dkt. No. 29).
After being granted an extension of time in which to do so,
Chappell

filed

a

response

in

opposition

to

the

defendant’s

alternate motions (Dkt. No. 46).
On June 22, 2018, Magistrate Judge Trumble entered a Report
and Recommendation (“R&R”) recommending that the Court grant the
defendant’s

motion

and

dismiss

Chappell’s

FTCA

claim

without

prejudice (Dkt. No. 48). Specifically, the R&R concluded that the
“discretionary function” exception applies in this action, thereby
shielding the United States from liability and depriving the Court
of subject matter jurisdiction. Id. at 14-16 (citing United States
v. Gaubert, 499 U.S. 315, 322 (1991)). The R&R further concluded
that, to the extent Chappell attempted to raise additional claims
in an affidavit he attached to his response brief, those claims are
barred as administratively unexhausted. Id. at 16-17.
The R&R informed Chappell of his right to file “written
objections

identifying

those

portions

of

the

Report

and

Recommendation to which objection is made, and the basis for such

3

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MEMORANDUM OPINION AND ORDER OVERRULING PLAINTIFF’S OBJECTIONS
[DKT. NO. 50], ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 48],
AND DISMISSING COMPLAINT WITHOUT PREJUDICE [DKT. NO. 1]
objection.” The Court received Chappell’s timely “Objection to the
Magistrate’s Report and Recommendations” on July 9, 2018 (Dkt. No.
50). This case is now ripe for decision.
II. STANDARDS OF REVIEW
A.

Review of the R&R
When reviewing a magistrate judge’s R&R, the Court must review

de novo only the portions to which an objection has been timely
made. 28 U.S.C. § 636(b)(1)(C). On the other hand, “the Court may
adopt,

without

recommendations

explanation,
to

which

any
the

of

the

prisoner

magistrate
does

not

judge’s
object.”

Dellacirprete v. Gutierrez, 479 F. Supp. 2d 600, 603-04 (N.D.W. Va.
2007) (citing Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983)).
Moreover, the pleadings and objections of a pro se plaintiff are
entitled to liberal construction. See DiPilato v. 7-Eleven, Inc.,
662 F. Supp. 2d 333, 340 (S.D.N.Y. 2009) (noting that pro se
objections should be "accorded leniency" and "construed to raise
the strongest arguments that they suggest" (internal quotation
omitted)).
B.

Rule 12(b)(1)
Pursuant to Fed. R. Civ. P. 12(b)(1), a party may move to

dismiss an action for lack of subject matter jurisdiction. “A
4

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MEMORANDUM OPINION AND ORDER OVERRULING PLAINTIFF’S OBJECTIONS
[DKT. NO. 50], ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 48],
AND DISMISSING COMPLAINT WITHOUT PREJUDICE [DKT. NO. 1]
defendant may contest subject matter jurisdiction in one of two
ways: by attacking the veracity of the allegations contained in the
complaint or by contending that, even assuming the allegations are
true,

the

complaint

fails

to

set

forth

facts

upon

which

jurisdiction is proper.” Durden v. United States, 736 F.3d 296, 300
(4th Cir. 2013) (citing Kerns v. United States, 585 F.3d 187, 192
(4th Cir. 2009)). When a defendant challenges the existence of
subject matter jurisdiction, the Court is “free to weigh the
evidence and satisfy itself as to the existence of its power to
hear the case.” Williams v. United States, 50 F.3d 299, 304 (4th
Cir. 1995) (internal quotation marks and citations omitted). The
Court may consider evidence outside of the pleadings, whether by
affidavit, deposition, or live testimony, without converting the
motion into one for summary judgment. Id. The burden is on the
plaintiff to prove that subject matter jurisdiction exists. Evans
v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999).
III. DISCUSSION
Chappell objects to the recommendations in the R&R that:

1)

the Court should dismiss his complaint based on the discretionary
function exception to the FTCA; and 2) certain additional claims

5

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MEMORANDUM OPINION AND ORDER OVERRULING PLAINTIFF’S OBJECTIONS
[DKT. NO. 50], ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 48],
AND DISMISSING COMPLAINT WITHOUT PREJUDICE [DKT. NO. 1]
outlined in his affidavit have not been fully exhausted. The Court
addresses each of these objections in turn below.
A.

Discretionary Function
1.

Applicable Law

The FTCA provides a cause of action for suits against the
United States alleging state law torts. “But the FTCA does not
create a statutory cause of action against individual government
employees.” Harbury v. Hayden, 522 F.3d 413, 416 (D.C.Cir. 2008).
Suits against government officers in their official capacities, and
those against government agencies, are treated as suits against the
government entity itself. See Kentucky v. Graham, 473 U.S. 159
(1985). Accordingly, in such suits, the defense of sovereign
immunity is available unless Congress has chosen to waive it.
Under 28 U.S.C. §§ 1346(b), Congress has waived sovereign
immunity for claims brought against the United States based on the
negligence or wrongful acts or omissions of its employees committed
within the scope of employment. 28 U.S.C. §§ 1346(b)(1), 2671-2680.
This waiver is a narrow one, however, and subject to an exception
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
6

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1:16CV206

MEMORANDUM OPINION AND ORDER OVERRULING PLAINTIFF’S OBJECTIONS
[DKT. NO. 50], ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 48],
AND DISMISSING COMPLAINT WITHOUT PREJUDICE [DKT. NO. 1]
not the discretion involved be abused.” Id. § 2680(a). “Because
waivers of sovereign immunity must be strictly construed, the
plaintiff

bears

the

burden

of

demonstrating

jurisdiction

and

showing that none of the FTCA's exceptions apply.” Wood v. United
States, 845 F.3d 123, 127 (4th Cir. 2017) (citing Welch v. United
States, 409 F.3d 646, 651 (4th Cir. 2005)).
Determining whether the so-called “discretionary function”
exception applies requires application of a two-step analysis.
First, a court must determine whether the conduct in question
“involves an element of judgment or choice.” Berkovitz ex rel.
Berkovitz v. United States, 486 U.S. 531, 536 (1988). When a
statute, regulation, or policy prescribes the employee's conduct,
the conduct cannot be discretionary and thus is unprotected by the
discretionary function exception. Id.; see also United States v.
Gaubert, 499 U.S. 315, 322 (1991).
Second, even where the challenged conduct involves judgment or
choice, a court must still determine whether the decision made was
“based on considerations of public policy.” Berkovitz, 486 U.S. at
537. “This second step of the analysis is designed to prohibit
courts

from

‘second

guessing’

decisions

‘grounded

in

social,

economic, and political policy through the medium of an action in

7

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1:16CV206

MEMORANDUM OPINION AND ORDER OVERRULING PLAINTIFF’S OBJECTIONS
[DKT. NO. 50], ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 48],
AND DISMISSING COMPLAINT WITHOUT PREJUDICE [DKT. NO. 1]
tort.’” Wood, 845 F.3d at 128 (quoting Gaubert, 499 U.S. at 323).
“When established government policy, as expressed or implied by
statute, regulation, or agency guidelines, allows a Government
agent to exercise discretion, it must be presumed that the agent's
acts are grounded in policy when exercising that discretion.”
Gaubert, 499 U.S. at 324.
The Fourth Circuit has long cautioned that “[a]ll waivers of
sovereign immunity must be ‘strictly construed . . . in favor of
the sovereign.’” Welch v. United States, 409 F.3d 646, 650 (4th
Cir. 2005) (quoting Lane v. Pena, 518 U.S. 187, 192 (1996)). Of
importance to the analysis is the principle that “it is the
plaintiff's burden to show that . . . none of the statute's waiver
exceptions apply to his particular claim.” Id. at 651. Should the
plaintiff fail to meet this burden, his claim must be dismissed.
Medina v. United States, 259 F.3d 220, 223 (4th Cir. 2001).
2.
In

The Report and Recommendation
his

R&R,

Magistrate

Judge

Trumble

observed

that

the

“discretionary function” exception precludes governmental liability
for “any claim based upon . . . the exercise or performance or
failure to exercise or perform a discretionary function or duty on
the part of a federal agency or an employee of the Government,
8

CHAPPELL V. USA

1:16CV206

MEMORANDUM OPINION AND ORDER OVERRULING PLAINTIFF’S OBJECTIONS
[DKT. NO. 50], ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 48],
AND DISMISSING COMPLAINT WITHOUT PREJUDICE [DKT. NO. 1]
whether or not the discretion involved be abused” (Dkt. No. 48 at
10)(quoting 28 U.S.C. § 2680(a)). Accordingly, he applied the
two-part test from Berkovitz and Gaubert to determine whether the
discretionary function exception bars suit against the United
States in this case.
Here, after considering the nature of the conduct involved, he
determined that the conduct at issue was the Officers’ decision to
use leg restraints when transporting Chappell to a local hospital,
and concluded that whether to apply leg restraints is a decision
within

the

BOP’s

judgment

(Dkt.

No.

48

at

14-15).

Next,

he

concluded that the Officers’ conduct “derives from considerations
of public policy,” such as how “best [to] ensure the safety of the
public when transporting prisoners.” Id. at 15-16. Based on this
analysis, he concluded that the discretionary function exception
applied to shield the United States from liability for Chappell's
FTCA claim. Id. at 16.
3.

Analysis

Chappell contends that the challenged conduct is not the
Officers’

decision

to

apply

leg

restraints

but

rather

their

“intentional tighten[ing] of [the restraints] to the point of
causing physical injury” to him (Dkt. No. 48 at 6). Because the
9

CHAPPELL V. USA

1:16CV206

MEMORANDUM OPINION AND ORDER OVERRULING PLAINTIFF’S OBJECTIONS
[DKT. NO. 50], ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 48],
AND DISMISSING COMPLAINT WITHOUT PREJUDICE [DKT. NO. 1]
Officers’ conduct in tightening the restraints “was not authorized
by any Policy or Procedure,” he asserts that it is unprotected by
the FTCA’s discretionary function exception. Id. at 7.
a.

Use of Restraints

As an initial matter, and as adequately explained in the R&R,
a prison official's decision about how to restrain a prisoner
during

transport

involves

an

element

of

judgment

or

choice.

Although 18 U.S.C. § 4042(a) provides that the Bureau of Prisons
has the duty, among others, to provide for the safekeeping and care
of all inmates, it does not specifically set forth the manner in
which that goal is to be carried out. Officers therefore have
substantial discretion to determine how to carry out their actions.
See, e.g., Calderon v. United States, 123 F.3d 947, 950 (7th Cir.
1997) (stating that “while it is true that [section 4042] sets
forth a mandatory duty of care, it does not . . . direct the manner
by which the BOP must fulfill this duty[ ]”).
Furthermore, prison officials make decisions regarding the
application of restraints during a staff-escorted medical trip
pursuant to the policy outlined in BOP Program Statement 5538.07,
Escorted Trips (the “Escort Policy”). See Dkt. No. 30-2 at 31-50.

10

CHAPPELL V. USA

1:16CV206

MEMORANDUM OPINION AND ORDER OVERRULING PLAINTIFF’S OBJECTIONS
[DKT. NO. 50], ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 48],
AND DISMISSING COMPLAINT WITHOUT PREJUDICE [DKT. NO. 1]
Section 570.44 of the Escort Policy sets forth certain “Supervision
and Restraint Requirements,” providing that
[i]nmates under escort will be within the constant and
immediate visual supervision of escorting staff at all
times. Restraints may be applied to an inmate going on an
escorted trip, after considering the purpose of the
escorted trip and the degree of supervision required by
the inmate.
Dkt. No. 30-22 at 40 (emphasis added). The Escort Policy further
provides, in relevant part, that for inmates with a custody level
of “IN,”2 “[h]andcuffs with martin chains will be used at all
times. Additional restraint equipment may be used at the escorting
officers' discretion.” Id. at 44 (emphasis added).
It is undisputed that, at the time of the challenged conduct,
Chappell was being transported into the community under escort, and
that he was classified as an “IN custody” inmate. Citing Chappell’s
custody classification and the relevant provisions of the Escort
Policy, the R&R concluded, and the parties seemly agree, that the

2

According to BOP Program Statement P5100.08, Inmate Security
Designation and Custody Classification, “IN custody” is “[t]he
second highest custody level assigned to an inmate which requires
the second highest level of security and staff supervision. An
inmate who has IN custody is assigned to regular quarters and is
eligible for all regular work assignments and activities under a
normal level of supervision. [However,] [i]nmates with IN custody
are not eligible for work details or programs outside the
institution's secure perimeter” (Dkt. No. 30-2 at 62).
11

CHAPPELL V. USA

1:16CV206

MEMORANDUM OPINION AND ORDER OVERRULING PLAINTIFF’S OBJECTIONS
[DKT. NO. 50], ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 48],
AND DISMISSING COMPLAINT WITHOUT PREJUDICE [DKT. NO. 1]
Officers’

application

of

requisite

“handcuffs

with

Chappell was

leg

restraints,

martin

discretionary

(Dkt.

in

chains,”
No.

48

at

addition

while

to

the

transporting

14-15).

See also

Chappell’s “Objection,” Dkt. No. 50 at 6 (“Plaintiff has no quarrel
with the requirement that he be shackled [during an escorted trip],
under BOP Policy”).
The

relevant

Escort

Policy

provisions

do

not

provide

a

specific, mandatory course of conduct for BOP officers to follow in
supervising and restraining prisoners during a staff-escorted trip;
rather, they give the officers ample room for the exercise of their
judgment by providing factors for them to consider (e.g., “the
purpose of the escorted trip,” and “the degree of supervision
required by the inmate”)(Dkt. No. 30-22 at 40). Significantly, the
Escort

Policy

explicitly

states

that

“[a]dditional

restraint

equipment may be used at the escorting officers' discretion. Id. at
44 (emphasis added).
Other courts have concluded that the choice of when restraints
should be used rests with the BOP. See, e.g., El-Hanafi v. United
States, No. 1:13-CV-2072, 2015 WL 72804, at *10 (S.D.N.Y. Jan. 6,
2015)(concluding that the “ultimate decision as to which restraints
are appropriate remains entirely within the [BOP’s] discretion,
12

CHAPPELL V. USA

1:16CV206

MEMORANDUM OPINION AND ORDER OVERRULING PLAINTIFF’S OBJECTIONS
[DKT. NO. 50], ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 48],
AND DISMISSING COMPLAINT WITHOUT PREJUDICE [DKT. NO. 1]
and,

indeed,

is

a

classic

example

of

act

that

requires

the

officers’ judgment as to which of a range of permissible courses is
the wisest”)(internal quotation marks and citation omitted).
The

magistrate

judge

correctly

concluded

that

decisions

regarding the application of restraints during prisoner transport
are grounded in public policy, such as how best to ensure the
safety and security of prisoners, BOP staff, and the public when
escorting prisoners into the community. Accordingly, because the
Officers’ conduct “involve[d] an element of choice or judgment,”
and because the decision itself was “based on considerations of
public policy,” Berkovitz, 486 U.S. at 536-37, the Court adopts the
recommendation of the R&R and concludes that the Officers’ decision
to apply leg restraints when escorting Chappell into the community
falls with the FTCA’s discretionary function exception.
b.
Having

Manner of Application
concluded

that

the

BOP’s

decision

to

apply

leg

restraints during the transport of prisoners into the community for
medical treatment is discretionary, the Court turns next to the
precise issue raised in Chappell’s objections, whether prison
officials also have discretion regarding the manner in which those
restraints are applied. As noted earlier, Chappell contends that
13

CHAPPELL V. USA

1:16CV206

MEMORANDUM OPINION AND ORDER OVERRULING PLAINTIFF’S OBJECTIONS
[DKT. NO. 50], ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 48],
AND DISMISSING COMPLAINT WITHOUT PREJUDICE [DKT. NO. 1]
the Officers intentionally and impermissibly tightened his leg
restraints

after

he

complained

that

they

were

causing

him

discomfort (Dkt. No. 15 at 6; 50 at 6-7).
Chappell concludes that the initial shackling was authorized
but asserts that “What occurred thereafter was not authorized by
any Policy or Procedure” (Dkt. No. 50 at 7). BOP Policy Statement
P5566.06,

Use

of

Force

and

Application

of

Restraints

(the

“Restraint Policy”), however, provides for a certain amount of
judgment or choice as to the manner in which any restraints are to
be applied.
Section
“Principles

6

of

the

Governing

Restraint
the

Use

of

Policy
Force

sets

forth

and

certain

Application

of

Restraints,” and, in relevant part, provides that
h. [r]estraint equipment or devices (e.g., handcuffs) may
not be used in any of the following ways:
(1) As a method of punishing an inmate;
...
(3) In a manner that causes unnecessary physical
pain or extreme discomfort; ....
Dkt. No.

30-2

at

14

Restraint

Policy goes

(emphasis
on to

in

original).

Critically,

state that, “[i]n

the

general, when

applying restraints, staff will use sound correctional judgement
14

CHAPPELL V. USA

1:16CV206

MEMORANDUM OPINION AND ORDER OVERRULING PLAINTIFF’S OBJECTIONS
[DKT. NO. 50], ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 48],
AND DISMISSING COMPLAINT WITHOUT PREJUDICE [DKT. NO. 1]
[sic] to ensure unnecessary pressure is not applied to the inmate.
Id. at 14 (emphasis added). The Policy further recognizes that,
while restraints may not be “improperly applied” or “unnecessarily
tight[],” the “proper application of restraints may result in some
discomfort.” Id. at 14-15.
Thus, although the Restraint Policy prohibits prison officials
from using restraints in a manner that causes unnecessary pain or
discomfort, it does not mandate a specific, non-discretionary
course of conduct to ensure that unnecessary pressure is not
applied to the restrained prisoner. Rather, much like the Escort
Policy, the Restraint Policy explicitly gives officers ample room
for the “use of sound correctional judgement [sic]” in their course
of conduct. Accordingly, decisions regarding the manner in which
restraints are tightened, including the officers’ determinations as
to the appropriate amount of pressure to be applied, necessarily
involve an element of choice or judgment. Further, as to decisions
regarding the application of restraints during prisoner transport,
decisions regarding the manner in which those restraints are
applied are grounded in public policy considerations, including the
safety and security of prisoners and BOP staff.

15

CHAPPELL V. USA

1:16CV206

MEMORANDUM OPINION AND ORDER OVERRULING PLAINTIFF’S OBJECTIONS
[DKT. NO. 50], ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 48],
AND DISMISSING COMPLAINT WITHOUT PREJUDICE [DKT. NO. 1]
Finally,

although

the

question

whether

the

Officers

intentionally applied too much pressure to Chappell’s restraints
may present a genuine issue of material fact, the Officers’ actions
in this case fall within the broad realm of the “discretionary
function” exception. And, as set forth in the statutory language,
that exception applies regardless of whether the agent for the
government abused his discretion. 28 U.S.C. § 2680(a). Therefore,
even if, after being advised by Chappell that his leg restraints
were uncomfortably tight, the officers responded by tightening his
restraints further, such abuse of the Officers’ discretion in the
application of restraints would fall within the ambit of the
exception.
The Officers’ declarations state either that they do not
recall Chappell or do not recall his alleged complaints about his
leg restraints (see Dkt. Nos. 30-4 at ¶¶ 9, 11, 13; 30-5 at ¶¶ 45).3 Chappell maintains his assertions to the contrary (see Dkt.

3

More particularly, Officer Edgar Andrews states that he was
not personally involved in restraining Chappell during the September
24, 2015, escorted trip, and that he does not recall Chappell
complaining that his leg restraints were too tight during his trip
to the hospital (Dkt. No. 30-4 at ¶¶ 7-11, 13). Officer Marshall
McMillen states that, while he does not specifically recall Chappell
or the September 24, 2015, trip, he does not recall any inmate ever
alleging that he or she suffered physical discomfort or injury
because his or her restraints were applied too tightly during an
16

CHAPPELL V. USA

1:16CV206

MEMORANDUM OPINION AND ORDER OVERRULING PLAINTIFF’S OBJECTIONS
[DKT. NO. 50], ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 48],
AND DISMISSING COMPLAINT WITHOUT PREJUDICE [DKT. NO. 1]
No. 50 at 6-7), but does not dispute that, at the time of the
challenged conduct, he was an “IN custody” prisoner being escorted
into the community and that the Officers were permitted to restrain
him

pursuant

to

the

BOP’s

Escort

and

Restraint

Policies.

Accordingly, even when Chappell’s allegations are taken as true,
the Officers’ actions can be considered, at most, an abuse of
discretion regarding how they chose to restrain a prisoner in the
community. They therefore fall within the “discretionary function”
exception. See, e.g., Calderon v. Foster, No. 5:05-CV-00696, 2007
WL 1010383, at *6 (S.D.W. Va. Mar. 30, 2007), aff'd sub nom.
Calderon v. Corr. Officer Foster, 264 F. App'x 286 (4th Cir.
2008)(concluding that, even where a prison official’s intent was a
genuine issue of material fact, his decision to kick a cell door
while a prisoner was on the toilet “could be categorized as an
abuse of discretion in discipline, and within the ambit of the
exception”).
In light of the application of the discretionary function
exception to the FTCA's waiver of sovereign immunity, the Court
concludes that Chappell's claim against the United States is barred
and subject to dismissal.

escorted trip (Dkt. No. 30-5 at ¶¶ 4-5).
17

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MEMORANDUM OPINION AND ORDER OVERRULING PLAINTIFF’S OBJECTIONS
[DKT. NO. 50], ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 48],
AND DISMISSING COMPLAINT WITHOUT PREJUDICE [DKT. NO. 1]
B.

Affidavit
Chappell also objects to the R&R’s conclusion that additional

FTCA claims outlined in an affidavit he submitted in response to
the government’s motion (“Affidavit”) were not fully exhausted and
cannot be pursued in the instant complaint (Dkt. No. 50 at 2-6). He
contends that he “presented” his claims to the BOP, as required by
28 C.F.R. § 14.2. Id. at 2, 4.
It is well-established, and Chappell does not argue otherwise,
that the administrative process must be fully exhausted before FTCA
claims may be brought in an action in federal court. 28 U.S.C.
§ 2675(a). Pursuant to 28 C.F.R. § 14.2, “a claim shall be deemed
to have been presented when a Federal agency receives from a
claimant . . . an executed Standard Form 95 or other written
notification of an incident, accompanied by a claim for money
damages in a sum certain for . . . personal injury, or death
alleged to have occurred by reason of the incident.” 28 C.F.R.
§ 14.2; see also Phillips v. Driver, No. 1:07-CV-102, 2009 WL
5067525, at *2 & n.1 (N.D.W. Va. Dec. 16, 2009), aff'd, 440 F.
App'x 176 (4th Cir. 2011). Accordingly, administrative exhaustion
under the FTCA required Chappell to submit written notification of
the incidents cited in the Affidavit to the BOP, as the federal
18

CHAPPELL V. USA

1:16CV206

MEMORANDUM OPINION AND ORDER OVERRULING PLAINTIFF’S OBJECTIONS
[DKT. NO. 50], ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 48],
AND DISMISSING COMPLAINT WITHOUT PREJUDICE [DKT. NO. 1]
agency allegedly responsible for the activities giving rise to his
claims.
Here,

the

record

reflects

that

Chappell

filed

an

administrative tort claim, or Standard Form 95 (“SF-95"), with the
BOP on January 7, 2016 (Dkt. No. 30-1 at 9-11). As also alleged in
the instant complaint, in his SF-95, Chappell alleged that during
a medical transport on September 24, 2015, the Officers applied
“leg shackles” that were “too tight” and which “cut[] into his
ankles,” and that when he complained about the shackles Officer
Andrews refused to loosen them. Id. at 9. As in the instant
complaint, he further alleged that, sometime after returning to USP
Hazelton, Officer Andrews threatened him with bodily harm. Id. at
11. Chappell’s Affidavit, however, clearly raises additional claims
that were not included in his original SF-95. For example, he now
alleges that, while he was restrained to a bed in the local
hospital, Officer Andrews “placed his hand against [his] throat”
and choked him until he began to lose consciousness, and then
“pulled a pistol,” which he pointed at Chappell’s head while
“pulling on” his leg restraints (Dkt. No. 46-1 at 5-6). Because
Chappell never mentioned these incidents in his SF-95, the BOP has
not been afforded the opportunity to investigate, or make final
dispositions of, these additional claims. Accordingly, the Court
19

CHAPPELL V. USA

1:16CV206

MEMORANDUM OPINION AND ORDER OVERRULING PLAINTIFF’S OBJECTIONS
[DKT. NO. 50], ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 48],
AND DISMISSING COMPLAINT WITHOUT PREJUDICE [DKT. NO. 1]
concludes

that they

have

not

been

exhausted for

purposes

of

Chappell’s FTCA complaint. 28 U.S.C. § 2675(a).
IV. CONCLUSION
In conclusion, for the reasons discussed, the Court:
1.

ADOPTS the R&R (Dkt. No. 48);

2.

OVERRULES Chappell’s objections (Dkt. No. 50);

3.

GRANTS the defendant’s motion to dismiss for lack of
subject matter jurisdiction (Dkt. No. 29);

4.

DENIES as MOOT the defendant’s motion to dismiss for
failure to state a claim or, in the alternative, for
summary judgment (Dkt. No. 29); and

5.

DISMISSES Chappell’s FTCA claims WITHOUT PREJUDICE for
lack of subject matter jurisdiction (Dkt. No. 1).

It is so ORDERED.
The Court directs the Clerk to enter a separate judgment
order, and to transmit copies of both orders to the pro se
plaintiff, certified mail and return receipt requested, and to
counsel of record.
DATED: August 22, 2018
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

20