Jones v. United States of America
ORDER ADOPTING REPORT AND RECOMMENDATION: It is ORDERED that Magistrate Joel's 40 Report and Recommendation is adopted; the Government's 41 Objections are overruled; and the Government's 30 Motion for Partial Dismissal is denied. Rule 26 Meeting to be held by 9/28/2012; Rule 26 Meeting Report due by 10/12/2012; and Discovery due by 10/29/2012. Signed by Chief Judge John Preston Bailey on 8/29/12. (cnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Civil Action No. 2:11-CV-94
UNITED STATES OF AMERICA,
ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before this Court for consideration of the
Report and Recommendation of the United States Magistrate Judge David J. Joel [Doc.
40]. Pursuant to this Court’s Local Rules, this action was referred to Magistrate Judge Joel
for submission of a proposed report and recommendation (“R&R”). Magistrate Judge Joel
filed his R&R on July 31, 2012 [Doc. 40]. In that filing, the magistrate judge recommends
that the defendant’s Motion For Partial Dismissal [Doc. 30] be denied and a Scheduling
Order be entered in this proceeding.
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo
review of those portions of the magistrate judge’s findings to which objection is made.
However, this Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge as to those portions of the findings or
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985). In addition, failure to file timely objections constitutes a waiver of de novo
review and the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Snyder v.
Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91,
94 (4th Cir. 1984). Here, objections to Magistrate Judge Joel’s R&R were due within
fourteen (14) days of receipt, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the
Federal Rules of Civil Procedure. On August 14, 2012, the Government filed timely
objections to the R&R [Doc. 41]. Accordingly, this Court will review the portions of the R&R
to which objection was made under a de novo standard of review. The remaining portions
of the R&R will be reviewed for clear error.
Plaintiff Terry Jones is a prisoner who was convicted of violations of the District of
Columbia code. In December 2007, Jones was housed in the B-2 Pod of Unit B at USP
Hazelton in Bruceton Mills, West Virginia. Duane Evans, from Baltimore, Maryland, was
a prisoner also housed in the B-2 pod at this time. Prisoner Evans had been removed from
the B-2 Unit for disciplinary segregation; during this time, his tennis shoes went missing.
Evans believed that a D.C. inmate took his shoes and stated that he would kill whoever had
On December 20, 2007, Jones was in the B-2 Unit for the 4:00 p.m. prisoner count.
During the count, Evans returned to the B-2 Unit and rang the doorbell to be admitted into
the housing unit. Unit Manager D. LeMaster opened the door for Evans. Before the door
was closed, Evans motioned to two inmates who were not assigned to the B-2 Unit to follow
him into the housing unit. LeMaster yelled “they’ve got knives” and “ran and hid” from the
armed prisoners. Evans and the two other inmates produced knives and attacked inmates.
One of the armed prisoners began chasing Jones, attempting to stab him. While Jones
attempted to run from the armed prisoner, he slipped in a “pool of blood . . . hitting his neck
and back on a metal stairwell and injuring his left knee.”
According to Jones, LeMaster violated Bureau of Prisons policy and protocol by
opening the unit door during the count and by failing to stop inmates who did not live in the
unit while they were in the hallway and before they could access the housing unit.
Specifically, Jones alleges that policy dictates that disciplinary action be taken against
inmates “out of place” during count. Jones also claims that LeMaster failed to abide by
employee standards that required him to respond immediately to the emergency situation.
Finally, Jones alleges that LeMaster failed to protect the unit from the armed prisoners.
On June 23, 2011, Jones filed the instant action in the United States District Court
for the District of Columbia [Doc. 1]. Pursuant to the Federal Tort Claims Act (“FTCA”), the
plaintiff sues the United States for, inter alia, negligence. Jones filed a First Amended
Complaint [Doc. 2] on June 27, 2011, maintaining the same causes of action. On October
27, 2011, the United States District Court for the District of Columbia transferred the case
to this Court [Doc. 12].
On January 19, 2012, the Government filed a Motion for Partial Dismissal [Doc. 30].
In the motion, the Government argues that Jones’ negligence claim should be dismissed
pursuant to Federal Rule of Civil Procedure12(b)(1) because “the discretionary function
exception to the waiver of sovereign immunity under the FTCA precludes the plaintiff’s
failure to protect claim” ([Doc. 31] at 5). On February 6, 2012, Jones filed an Opposition
to Defendant’s Motion for Partial Dismissal [Doc. 33], arguing that the discretionary function
exception is inapplicable to this case. On July 31, 2012, the magistrate judge issued the
instant R&R [Doc. 40], recommending that this Court find the discretionary function
exception inapplicable and deny the defendant’s Motion for Partial Dismissal. The United
States objected on August 14, 2012 [Doc. 41], and Jones responded on August 28, 2012
Federal Tort Claims Act (“FTCA”)
Pursuant to the FTCA, the United States has waived its sovereign immunity to allow
civil suits for actions arising out of negligent acts of agents of the United States; however,
the United States cannot be sued in a tort action unless it is clear that Congress has waived
the government’s sovereign immunity and authorized suit under the FTCA. See Dalehite
v. United States, 346 U.S.15, 30-31 (1953). Where such a waiver exists, the United
States is liable in the same manner and to the same extent as a private individual under
like circumstances in accordance with the law of the place where the act or omission
occurred. 28 U.S.C. §§ 2674 and 1346(b)(1); Medina v. United States, 259 F.3d 220, 223
(4th Cir. 2001). In West Virginia, the plaintiff must establish three elements in a negligence
suit: (1) a duty that the defendant owes to the plaintiff, (2) a negligent breach of that duty,
and (3) injuries received as a proximate result from that breach. Webb v. Brown &
Williamson Tobacco Co., 121 W. Va. 115, 2 S.E.2d 898, 899 (1939). The plaintiff must
prove these elements by a preponderance of the evidence. Id. at 899.
Pursuant to the FTCA, the BOP owes prisoners a duty of care that specifically
requires the BOP to provide for the safekeeping, care, subsistence, and protection of all
prisoners. See 18 U.S.C. § 4042; United States v. Muniz, 374 U.S. 150 (1963). Under
West Virginia law, the duty of care that the BOP owes to inmates is one of reasonable care.
See McNeal v. United States, 979 F.Supp. 431 (N.D. W. Va. 1997).
The liability of the United States under the FTCA is subject to various exceptions
contained in 28 U.S. C. § 2680, including the “discretionary function” exception at issue
here. That exception provides that the Government is not liable for “[a]ny claim based upon
. . . the exercise or performance or the failure to exercise or perform a discretionary
function or duty on the part of a federal agency or an employee of the Government,
whether or not the discretion involved be abused.” § 2680(a). The Supreme Court of the
United States has articulated a two-part test to determine whether the discretionary function
exception applies to a particular case. See United States v. Gaubert, 499 U.S. 315
(1991). A court must first determine whether the nature of the conduct “‘involves an
element of judgment.’” Id. at 322 (internal citations omitted). “The requirement of judgment
or choice is not satisfied if a ‘federal statute, regulation, or policy specifically prescribes a
course of action for an employee to follow,’ because ‘the employee has no rightful option
but to adhere to the directive.’” Id. (quoting Berkovitz v. United States, 486 U.S. 531, 536
(1988)). Next, a court must determine whether that judgment is based upon considerations
of public policy. Id. at 323. “Where this discretionary function exception applies, the courts
lack federal subject matter jurisdiction.” Holbrook v. United States, 673 F.3d 341, 345
(4th Cir. 2012) (internal citation omitted). The plaintiff bears the burden of proving that the
discretionary function exception does not apply. See Indem. Ins. Co. of N. Am. v. United
States, 569 F.3d 175, 180 (4th Cir. 2009) (citing Welch v. United States, 409 F.3d 646
(4th Cir. 2005)).
Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, a party may move
to dismiss a claim for lack of subject matter jurisdiction. FED. R. CIV. P. 12(b)(1). A
defendant may challenge subject matter jurisdiction in two different ways. Adams v. Bain,
697 F.2d 1213, 1219 (4th Cir. 1982). The first method is a facial challenge asserting that
the court’s subject matter jurisdiction was not properly pleaded by the plaintiff. Id. The
second approach is a factual allegation that the “jurisdictional allegations of the complaint
were not true.” Id. When reviewing a motion to dismiss pursuant to Rule 12(b)(1), the
Court must assume all of the allegations to be true, resolve all doubts and inferences in
favor of the plaintiff, and view the allegations in a light most favorable to the plaintiff. Id.
If the defendant claims that the jurisdictional allegations in the complaint are not true, the
court may “then go beyond the allegations of the complaint and in an evidentiary hearing
determine if there are facts to support the jurisdictional allegations.” Id.
In its Objections, the Government challenges Magistrate Judge Joel’s conclusion
that the discretionary function exception is inapplicable here. Therefore, this Court will
accord a de novo review to that issue by determining: (1) whether LeMaster’s conduct, as
alleged, involved an element of judgment or choice, and (2) if necessary, whether that
judgment or choice was based upon considerations of public policy.
Jones alleges that Lemaster was negligent for (1) allowing Evans into the pod after
the door had been closed for the 4:00 p.m. count and (2) failing to stop the armed men who
had started a riot in the pod. (See [Doc. 2] at ¶¶ 1-2). As explained below, this Court finds
that neither of Lemaster’s decisions, as alleged, involved discretion.
“A government employee’s conduct does not involve discretion where a federal
statute, regulation, or policy specifically prescribes a course of action for an employee to
follow and the employee has not rightful option but to adhere to the directive.” Holbrook,
673 F.3d at 345 (internal quotations and citation omitted).
Here, Jones alleges, albeit without citation, that Lemaster violated BOP policy and
other mandatory directives:
(1) “[T]he final scheduled move before the afternoon count is from 3:30 p.m.
to 3:45 p.m. At all other times, inmates are not permitted in unauthorized
areas, such as hallways . . ..” ([Doc. 2] at ¶ 22).
(2) “During count, inmates are required to be in their assigned housing unit
. . .. [T]he 10:00 a.m. and 4:00 p.m. counts are mandatory stand-up counts
where the inmate is required to stand next to his bed and be observed and
counted.” (Id. at ¶ 23).
(3) “[P]ursuant to BOP policy and protocol, the two inmates who entered the
B-2 unit with Evans were not housed in the B-2 unit and were not authorized
to be in the B-2 unit at any time. Mr. Lemaster violated BOP policy by
permitting inmate movement at an unauthorized time, and by unlocking the
door to the unit and admitting Evans late as well as admitting the inmates
who did not live in the B-2 unit.” (Id. at ¶ 26).
(4) “Lemaster further violated BOP policy and protocol by opening the unit
door during count, even for an inmate who lived in the unit.” (Id. at ¶ 27).
(5) “Policy dictates that staff will take disciplinary action if an inmate is not in
his assigned area during a count. Disciplinary action will also be taken
against an inmate for leaving an assigned area before the court has cleared
or for interfering with the count process.” (Id. at ¶ 28).
(6) “LeMaster ran and hid from the intruders – failing to abide by the
employee standards requiring him to respond immediately and effectively to
an emergency situation and failing to protect the unit from the armed
inmates.” (Id. at ¶ 30).
The United States does not deny that any of these alleged policies exist. Instead,
the United States complains in its motion and objections that Jones fails to cite to particular
policies or procedures. At this stage, however, this Court finds Jones’ general allegations
sufficient, especially in light of the fact that the policies and procedures necessary to
identify particular citations, should relevant policies and procedures exist at all, are in the
possession of the United States. Importantly, as alleged, these policies appear to leave
no room for discretion and instead mandate a particular course of action. As such, Jones
has sufficiently pled that the first element of the discretionary function exception is not
satisfied. Thus, it is not necessary at this time to consider whether any discretion was
based upon considerations of public policy. Accordingly, this Court concludes that Jones
has adequately established the prima facie case of subject matter jurisdiction necessary
to survive a 12(b)(1) motion at this stage.
Upon careful review , it is the opinion of this Court that the magistrate judge’s Report
and Recommendation [Doc. 40] should be, and is, hereby ORDERED ADOPTED for the
reasons more fully stated therein. As such, the Government’s Objections [Doc. 41] are
OVERRULED. Accordingly, the Government’s Motion for Partial Dismissal [Doc. 30] is
Pursuant to Federal Rules of Civil Procedure 16 and 26(f) and Local Rule of Civil
Procedure 16.01(b), the parties to this action shall meet in person or by telephone on or
before September 28, 2012. At this meeting, the parties shall discuss all matters required
by Federal Rules 16 and 26(f) and Local Rule 16.01(b).
Pursuant to Federal Rule 16(f) and Local Rule16.01(c), the parties shall submit to
this Court a written report on the results of the initial discovery meeting on or before
October 12, 2012. This report shall include the parties' report on those matters set forth
in Local Rule 16.01(b)(1-5) and 16.01(c) and the parties' discovery plan as required by
Federal Rule 26(f). The parties may refer to Form 52 of the Federal Rules of Civil
Procedure for an example of a report on a planning meeting. However, the parties should
be certain to supplement Form 52 with Local Rule16.01(b)(1-5) and 16.01(c) disclosures.
The parties' report on their meeting shall be considered by this Court as advisory only.
Parties and counsel are subject to sanctions as set forth in Federal Rule16(f) and Local
Rule 37.01 for failure to participate in good faith in the development and submission of a
meeting report and proposed discovery plan.
Upon receipt of the meeting report and proposed discovery plan, this Court may
conduct a scheduling conference at a date and time deemed appropriate. See Fed. R. Civ.
P. 16(b) and L.R. Civ. P. 16.01(d). However, if this Court determines, after a review of the
meeting report and proposed discovery plan that a scheduling conference is not necessary,
no conference will be scheduled and a scheduling order will be entered. See Fed. R. Civ.
P. 16(b) and L.R. Civ. P. 16.01(c).
Finally, pursuant to Federal Rule 26(a)(1) and Local Rule 26.01(a), each party shall
provide to every other party the initial discovery disclosures required under Federal Rule
26(a)(1) on or before October 29, 2012.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to any counsel of record herein
along with copies of this Court’s Scheduling Order Checklist.
DATED: August 29, 2012.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Civil Action No. __________
SCHEDULING ORDER CHECKLIST
1. INTERMEDIATE PRETRIAL CONFERENCE
3. JOINDER AND AMENDMENTS
4. EXPERT DISCLOSURE
a. With Burden
b. Without Burden
6. DISCOVERY COMPLETION
7. DISPOSITIVE MOTIONS
8. PRETRIAL DISCLOSURES, FED R. CIV PRO 26(a) 3
9. JURY INSTRUCTIONS, VOIR DIRE and VERDICT FORMS
10. MOTIONS IN LIMINE
11. BIOGRAPHICAL SKETCHES
12. JOINT FINAL PRETRIAL CONFERENCE ORDER
13. FINAL PRETRIAL CONFERENCE
(If non-jury trial, Proposed Findings of Fact
and Conclusions of Law are to be filed with Court
and opposing counsel _______________)
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?