Goforth v. United States of America

Filing 23

MEMORANDUM OPINION AND ORDER: The Court GRANTS Defendant's 10 MOTION to Dismiss. The Clerk is DIRECTED to remove this matter from the Court's active docket. Signed by Senior Judge David A. Faber on 10/15/2013. (cc: counsel of record) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD

TABETHA GOFORTH,
Plaintiff,
v.

Civil Action No: 1:12-4631

UNITED STATES OF AMERICA,
Defendant

MEMORANDUM OPINION AND ORDER
Pending before the court is Defendant’s Motion to Dismiss
(Doc. No. 10).

For the reasons that follow, the motion is

granted.
I.

Background
This dispute involves a prisoner, the United States

government, and a 10-month old Labrador retriever named “Drake”.
Plaintiff, the prisoner, was an inmate incarcerated at the
Federal Prison Camp located at Alderson, West Virginia.
No. 1 at 1).

(Doc.

This prison has a program to allow inmates the

opportunity to interact and work with dogs.

Id.

The dogs are

housed with the inmates in the long-term residential unit.
(Doc. No. 11 at 1).

Inmates involved in the dog program were

permitted to take the dogs with them as long as the dogs were on
leashes.

(Doc. No. 1 at 2).

Plaintiff alleges she informed a
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counselor that she was afraid of and allergic to dogs and
therefore wished to not move to the long-term housing unit.

Id.

Nonetheless, the Bureau of Prisons (BOP) assigned plaintiff to
long-term housing on April 6, 2010 after she completed
orientation.

Id.

Plaintiff alleges that she broke her leg on

April 7, 2010 while attempting to run away from Drake, the
Labrador retriever, who was running towards her.

Id.

Plaintiff

alleges negligence because defendant failed to address
plaintiff’s “stated concern about being around dogs, failed to
take proper steps to make certain that dogs inside the prison
were properly leashed and restrained, [and] failed to ensure
that only well behaved dogs were allowed into the prison for the
dog program.”

Id. at 3.

On March 26, 2013, the United States filed the instant
motion to dismiss this case for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(1), along with a memorandum in support of the motion.
(Doc. Nos. 10, 11).

The United States contends that plaintiff’s

lawsuit is barred by the discretionary function exception to the
Federal Tort Claims Act (FTCA) because decisions, such as the
one involved here, concerning the housing of inmates are
committed to the discretion of prison staff.
5).

As such, defendant argues, this court lacks subject matter

jurisdiction.

Plaintiff did not file any response until August
2 

(Doc. No. 11 at

22, 2013 – well past the deadline.

(Doc. No. 21).

In her

“response”, plaintiff simply states that she “has no good faith
response to make to Defendant’s Motion to Dismiss.”
II.

Id.

Standard of Review

When subject matter jurisdiction is challenged pursuant to
Rule 12(b)(1), the plaintiff has the burden of proving the
existence of subject matter jurisdiction.
Co., 166 F.3d 642, 647 (4th Cir. 1999).

Evans v. B.F. Perkins

This is especially true

when a party brings an action against the United States pursuant
to the FTCA “because [t]he party who sues the United States
bears the burden of pointing to . . . an unequivocal waiver of
immunity.”

Williams v. United States, 50 F.3d 299, 304 (4th

Cir. 1995).

As a direct corollary to this rule, a plaintiff

also bears the burden of persuasion to defeat an asserted
exception to the FTCA waiver of immunity.
States, 409 F.3d 213, 216 (4th Cir. 2005).1

See Hawes v. United
When addressing a

Rule 12(b)(1) motion to dismiss, the court “may regard the
pleadings as mere evidence on the issue and may consider
evidence outside the pleadings without converting the proceeding

1

The Hawes decision was vacated when rehearing en banc was
granted. Prior to rehearing, however, the appellant dismissed
the matter. The decision has been cited favorably by district
courts in the Fourth Circuit despite this fact. See ex. Butler
v. United States, 2010 WL 731139 (M.D.N.C. 2010).
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to one for summary judgment.”

Velasco v. Gov’t of Indonesia,

370 F.3d 392, 398 (4th Cir. 2004).
III. Analysis

“It is a fundamental principle of sovereign immunity that

federal courts do not have jurisdiction over suits against the
United States unless Congress, via a statute, expressly and
unequivocally waives the United States’ immunity to suit.”
United States v. Bein, 214 F.3d 408, 412 (3d Cir. 2000); United
States v. Sherwood, 312 U.S. 584, 586 (1941).

The FTCA does

exactly that; it provides that a suit against the United States
shall be the exclusive remedy for persons with claims for
damages resulting from the negligent acts or omissions of
federal employees acting within the scope of their office or
employment.

See 28 U.S.C. § 2679(b)(1).

Nonetheless, the FTCA’s waiver of sovereign immunity is
subject to a number of exceptions including the one at issue
here - the discretionary function exception.

The FTCA’s waiver

of immunity does not include:
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 a
federal agency or an employee of the Government,
whether or not the discretion involved be abused.

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28 U.S.C. § 2680(a).

As stated by the United States Supreme

Court, the exception “marks the boundary between Congress’
willingness to impose tort liability upon the United States and
its desire to protect certain governmental activities from
exposure to suit by private individuals.”

United States v. S.A.

Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S.
797, 808 (1984).

The exception shields legislative and

administrative decisions based on social and economic policy
from the whims of judicial hindsight.
The Supreme Court has established a two-pronged test to
determine whether the discretionary function exception applies.
First, a court must ascertain whether the governmental action
complained of “involves an element of judgment or choice.”
Berkovitz v. United States, 486 U.S. 531, 536 (1988).

That is,

the court must look to whether the governmental conduct is “the
subject of any mandatory federal statute, regulation, or policy
prescribing a specific course of action.”
States, 986 F.2d 716, 720 (4th Cir. 1993).

Baum v. United
If such mandatory

directive is present, the plaintiff’s task is to show that the
governmental actor failed to adhere to the mandatory standard.
If, however, there is no mandatory statute, regulation or
policy, the court will move to the second prong of the analysis.
Here, the court will determine whether the challenged action is
one “based on considerations of public policy.”
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Berkovitz, 486

U.S. at 531; United States v. Gaubert, 499 U.S. 315, 323 (1991).
This second prong gives the government broad latitude.

Indeed,

there is a presumption that “[w]hen established governmental
policy . . . allows a Government agent to exercise discretion, .
. . the agent’s acts are grounded in policy when exercising that
discretion.”

Id. at 324.

Additionally, the inquiry is an

objective one, requiring that the court ask “whether that
decision is one which we would expect to be grounded in
considerations of policy.”

Baum, 986 F.2d at 721.

In this case, plaintiff’s complaint can be viewed as
challenging several actions on the part of defendant.
general, and the other more specific.

One is

First, plaintiff

generally attacks the decision to place her in the long-term
residential unit despite her stated fear of dogs.

Secondly,

plaintiff challenges the more specific omission that occurred on
April 7, 2010 – the failure to ensure that Drake was on a leash
and under control.2

The court will address whether the

discretionary function exception applies to each action in turn.
The first decision – placing plaintiff in the long-term
residential unit – is clearly one covered by the discretionary

2

Plaintiff would presumably attempt to invoke West Virginia Code
§ 19-20-13 to support her case which provides that “[a]ny owner
or keeper of any dog who permits such dog to run at large shall
be liable for any damages inflicted upon the person or property
of another by such dog while so running at large.”
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function exception.

The first prong of the two-part inquiry is

satisfied here because BOP housing assignments are discretionary
and are not subject to a mandatory directive.

Plaintiff does

not point to any statute, regulation, or policy which would
wholly limit the BOP’s discretion.

The only conceivable statute

which could provide such a mandatory directive to the BOP is 18
U.S.C. § 4042, which provides generally that prison officials
have a duty of providing for the protection, care, subsistence,
and safekeeping of all federal prisoners.

Cases from this

circuit and other circuits have unanimously held that BOP
officials retain wide discretion as to the means by which this
general duty is fulfilled.

See Cohen v. United States, 151 F.3d

1338, 1342 (11th Cir. 1998) (discretionary function exception
applied to prison administrator’s decision to place plaintiff’s
inmate attacker at a minimum security prison); Calderon v.
United States, 123 F.3d 947, 950 (7th Cir. 1997) (discretionary
function exception applied to prison administrators’ decision to
not separate one inmate from another who threatened and
eventually attacked the plaintiff); Jacocks v. Hedrick, 2006 WL
2850639 (W.D. Va. Sept. 29, 2006).
Given that the first prong is met, the second prong
naturally follows.

The court must presume that the governmental

actor’s decision was grounded in policy because of the
discretion granted.

Plaintiff has provided no information to
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suggest that this decision is not grounded in policy and has
therefore not overcome the presumption.

The court notes that

any information that plaintiff could have provided would not
likely have convinced this court that housing decisions of the
BOP are not grounded in policy.

Having determined that the BOP

has wide discretion and that the use of this discretion requires
decisions grounded in public policy, the court finds that the
discretionary function exception applies to plaintiff’s
allegations of negligence based on defendant’s decision to place
her in the long-term housing unit.
The second action – the failure to properly control Drake
on April 7, 2010 presents a more challenging question.3

After

careful consideration, however, the court likewise determines
that this falls within the discretionary function exception.
Again, the first-prong of the analysis is simple – the BOP has
wide discretion in how it provides for the care of inmates.
second prong raises several wrinkles.

The

No one would doubt that

the decision to have a dog program at the prison is one grounded
in policy.

Interaction with dogs likely raises the morale of

prisoners and provides an overall better environment.

But,

3

The court notes that defendant’s memorandum in support of the
motion only addressed whether the discretionary function
exception applied to the BOP’s decision to place plaintiff in
the long-term unit. The alleged negligence for the failure to
control Drake was not specifically addressed. The court has a
duty, however, to address this matter because it concerns the
power of this court, i.e. subject matter jurisdiction.
8 

that decision itself is not challenged here.

Rather, plaintiff

complains of the failure to properly secure the dog to ensure
that he could cause no damage.

Is that omission one that is

grounded in policy?
Answering this question, it is important to remember that
“[t]he focus of the inquiry is not on the agent’s subjective
intent in exercising the discretion conferred by statute or
regulation, but on the nature of the actions taken and on
whether they are susceptible to policy analysis.”
U.S. at 325.

Gaubert, 499

The nature of the action taken in this case, or

omission as it may be, is not securing Drake.

Put another way,

plaintiff is essentially complaining about a lack of
correctional staff or the diligence of the staff on hand.
omission is susceptible to policy analysis.

This

Matters such as the

allocation of guards and other correctional staff are plainly
grounded in policy.

The BOP “must balance a variety of factors

and employ considerable discretion in determining how to go
about protecting prisoners from harm, while also managing costs
and ensuring the safety of the prison staff and the community.”
Caudle v. United States, 72 F.3d 132 (7th Cir. 1995).

Perhaps

the dog could have been contained if the prison assigned a
correctional staff member to accompany each dog at all time or
kept the dogs’ leashes tied to a stationary object.

These

actions would significantly reduce the effectiveness of any dog
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program.

In any event, it is this type of “judicial ‘second-

guessing’” that the discretionary function exception is designed
to prevent.

Varig Airlines, 467 U.S. at 813.

Consequently, the

court finds that the discretionary function exception applies
equally to the alleged failure to restrain Drake on April 7,
2010.
IV.

Conclusion

Plaintiff’s allegations in this matter, whether viewed as
challenging the BOP’s decision to place her in the long-term
residential unit or the BOP’s lack of care in overseeing the
dog, are barred by the discretionary function exception to the
FTCA.

Plaintiff, understandably, had no “good faith response”

to the assertion of the exception.

As stated by the First

Circuit, “decisions with regard to classification of prisoners,
assignment to particular institutions or units, and allocation
of guards and other correctional staff must be viewed as falling
within the discretionary function exception to the FTCA, if
penal institutions are to have the flexibility to operate.”
Santana-Rosa v. United States, 335 F.3d 39, 44 (1st Cir. 2003).
The discretionary function exception is tailor-made for cases
such as this one.

As such, defendant’s motion to dismiss (Doc.

No. 10) is GRANTED.

10 

The Clerk is DIRECTED to remove this matter from the
court’s active docket and to send copies of this Memorandum
Opinion and Order to counsel of record.
IT IS SO ORDERED this 15th day of October, 2013.
Enter:

David A. Faber
Senior United States District Judge

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