McKinney v. United States

• Decision Date: 12 June 2013
• Docket Number: No. 4:12–CV–394–A.,4:12–CV–394–A.
• Citation: 950 F.Supp.2d 923
• Parties: Othniel McKINNEY, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of Texas

950 F.Supp.2d 923

Othniel McKINNEY, Plaintiff,

v.UNITED STATES of America, Defendant.

No. 4:12–CV–394–A.

United States District Court,

N.D. Texas,

Fort Worth Division.

June 12, 2013.

Othniel McKinney, Fort Worth, TX, pro se.

Marti M. Watkins Cherry, United States Attorney's Office, Fort Worth, TX, for Defendant.

MEMORANDUM OPINION and ORDER

JOHN McBRYDE, District Judge.

Now before the court is the motion of defendant in the above-captioned action, United States of America, to dismiss all claims and causes of action of plaintiff, Othniel McKinney, for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Having considered the motion and accompanying documents, plaintiff's response, the record, and applicable legal authorities, the court concludes that the motion should be denied.

I.Background

Plaintiff, a prisoner at FCI–Fort Worth, filed this action pursuant to the Federal Tort Claims Act (“FTCA”), alleging that he was injured due to the negligence of prison officials. On February 2, 2010, plaintiff and two other inmates were transported from FCI–Fort Worth to the Federal Medical Center in Butner, North Carolina (“FMC”) for medical treatment.¹ Also on the airplane were two FCI–Fort Worth correctional officers, one lieutenant, one nurse, and two pilots. Pursuant to Bureau of Prisons (“BOP”) policy, all inmates were in full restraints during the medical transport. While attempting to exit the airplane in North Carolina, plaintiff, who was 79 years old at the time and suffering from poor health, was wearing handcuffs, a belly chain, and shackles, and fell down the stairs. No one physically assisted plaintiff on the stairs or asked him if he needed assistance. After plaintiff fell and landed on his back, officials “came to his aid,” asked him if he was all right, and assisted him to the van to be transported to FMC. Compl. at 3. Plaintiff promptly received medical treatment upon his arrival at FMC, and explained to medical staff that his injury had occurred while exiting the airplane. Plaintiff alleges that, due to his fall, he suffered intense pain, has reoccurring medical issues, must now use a walker to get around, continues to need medication for pain, and requires counseling to address the mental and emotional stress he has suffered.

II.Analysis

A. Standards under Rule 12(b)(1)

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a case is properly dismissed when the court “lacks the statutory or constitutional power to adjudicate the case.” Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir.1998) (citations omitted). If one of the parties challenges the court's jurisdiction, the court has broad authority to weigh the evidence and satisfy itself that it has jurisdiction to hear the case. Williamson v. Tucker, 645 F.2d 404, 412–13 (5th Cir.1981). The court “has the power to dismiss for lack of subject matter jurisdiction on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Freeman v. United States, 556 F.3d 326, 334 (5th Cir.2009) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981)). A motion to dismiss under Rule 12(b)(1) should be granted only “if it appears certain that plaintiff cannot prove a plausible set of facts that establish subject-matter jurisdiction.” Davis v. United States, 597 F.3d 646, 649 (5th Cir.2009).

B. Cause of Action Under the FTCA1. Applicable Standards

The United States enjoys sovereign immunity from suit unless it has specifically consented to be sued, Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983), and the plaintiff bears the burden of showing the waiver of immunity, Freeman, 556 F.3d at 334. Consent of the United States to suit “is a prerequisite to federal jurisdiction,” In re FEMA Formaldehyde Products Liability Litigation, 668 F.3d 281, 287 (5th Cir.2012), and Congress's waiver of the immunity “must be unequivocally expressed in statutory text and will not be implied,” Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996).

Under the FTCA, Congress has explicitly waived sovereign immunity and permitted the United States to be sued for injuries:

[C]aused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b). The relevant duty of care owed by defendant, through BOP and its officials, to prisoners is provided by 18 U.S.C. § 4042, which requires BOP to “provide for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the United States.” 18 U.S.C. § 4042(a)(2). That duty requires “the exercise of ordinary diligence to keep prisoners safe and free from harm,” Cowart v. United States, 617 F.2d 112, 116 (5th Cir.1980). Section 4042 “requires the Federal Bureau of Prisons to provide for the safekeeping, care, and subsistence of all federal prisoners, but does not indicate the manner in which the duty must be fulfilled,” Spotts v. United States, 613 F.3d 559, 567 (5th Cir.2010), and BOP officials generally have broad discretion in fulfilling this statutory obligation. Id., Ashford v. United States, 463 Fed.Appx. 387, 391 (5th Cir.2012). A prisoner has the right to bring a cause of action under the FTCA for a breach of the duty prescribed by § 4042. United States v. Muniz, 374 U.S. 150, 164–65, 83 S.Ct. 1850, 10 L.Ed.2d 805.

There are a number of exceptions to this waiver of immunity, including the discretionary function exception, 28 U.S.C. § 2680, which provides:

The provisions of this chapter and section 1346(b) of this title shall not apply to—

(a) 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.

28 U.S.C. § 2680. The exception “reflects a congressional intent to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” Buchanan v. United States, 915 F.2d 969, 971 (5th Cir.1990) (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984)) (internal quotations omitted). A two-part test has been established for determining whether the discretionary function exception applies to particular conduct of a government employee. United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). First, the conduct must involve “an element of judgment or choice,” and, second, “the judgment or choice must be based on considerations of public policy, for that is the kind of judgment the discretionary function exception was designed to shield.” Id. at 322–23, 111 S.Ct. 1267;Davis v. United States, 597 F.3d 646, 650 (5th Cir.2009).

The discretionary function exception does not apply if “a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow,” and an employee acts contrary to such directives. Buchanan, 915 F.2d at 971 (internal quotations omitted). However, if a statute, regulation, or agency guideline “allows the employee discretion, the very existence of the regulation creates a strong presumption that a discretionary act authorized by the regulation involves consideration of the same policies which led to the promulgation of the regulations.” Gaubert, 499 U.S. at 324, 111 S.Ct. 1267. The exception “protects only governmental actions and decisions based on considerations of public policy.” Id. at 322–23, 111 S.Ct. 1267. Accordingly, “[f]or a complaint to survive a motion to dismiss, it must allege facts which would support a finding that the challenged actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory regime.” Gaubert, 499 U.S. at 324–25, 111 S.Ct. 1267. Thus, if the challenged conduct involves the permissible exercise of judgment grounded in public policy, the government is insulated from tort liability, and the court lacks subject matter jurisdiction. Berkovitz v. United States, 486 U.S. 531, 537, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988); Davis, 597 F.3d at 649–50. It follows that if one or both parts of the test are not met, the exception does not apply, and the court maintains jurisdiction over the action.

2. Standards Applied to Plaintiff's Complaint

The specific conduct plaintiff challenges is the failure of officials to assist him on the stairs while he was exiting the airplane, and was fully restrained in handcuffs, shackles, and a belly chain. Defendant contends that the discretionary function exception applies to the conduct because there was no statute, regulation, or policy requiring officials to assist plaintiff in exiting the airplane; the officials exercised their discretion in choosing how to transport plaintiff; and officials relied on important policy considerations in exercising such discretion.

a. Whether The Challenged Conduct Involved an Element of Judgment or Choice

Plaintiff contends that officials should have realized that, as he was an elderly, ill man in restraints and was subject to their care, they had a duty to help him negotiate the stairs. Defendant contends that the decision not to provide...