Alvarado-David v. United States

Decision Date24 September 2013
Docket NumberCivil No. 12–1566 (SEC).
Citation972 F.Supp.2d 210
PartiesAlvin ALVARADO–DAVID, Plaintiff, v. UNITED STATES of America, Defendant.
CourtU.S. District Court — District of Puerto Rico

OPINION TEXT STARTS HERE

Luis R. Rivera–Rodriguez, Luis Rafael Rivera Law Office, San Juan, PR, for Plaintiff.

Lisa E. Bhatia–Gautier, United States Attorneys Office, District of Puerto Rico, San Juan, PR, for Defendant.

OPINION AND ORDER

SALVADOR E. CASELLAS, Senior District Judge.

Before the Court are the defendant's motion to dismiss (Docket # 9), and the plaintiff's opposition thereto (Docket # 14). After reviewing the filings and the applicable law, the defendant's motion is hereby GRANTED.

Factual and Procedural Background

Alvin Alvarado–David (Plaintiff) is a federal inmate incarcerated at the Metropolitan Detention Center (MDC) in Guaynabo, Puerto Rico. On December 29, 2010, at approximately 1:30 a.m., Plaintiff was at the upper bunk of his cell and, while getting out of bed, he slipped and fell to the floor hitting the toilet bowl. Docket # 1, p. 2. Plaintiff allegedly broke his frontal teeth and his upper lip. Id. Four stitches were placed on his lip. Id. at p. 3. Plaintiff alleges that he fell because his bunk bed was not equipped with a ladder or any other appropriate equipment to access the upper bunk, so he had to climb to his bunk by leaning on the sink and a chair. Id.

Plaintiff filed the present suit under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671–2680, alleging that the United States of America (Defendant) is liable for the damages suffered because of its “failure to provide inmates with the adequate equipment to climb their bunks.” Id. Defendant moved to dismiss the present action under Fed.R.Civ.P. 12(b)(1), alleging lack of subject-matter jurisdiction under the discretionary function exception set forth at 28 U.S.C. § 2680 of the FTCA.

Standard of Review

Fed.R.Civ.P. 12(b)(1) is the appropriate vessel for challenging a court's subject-matter jurisdiction. Valentín v. Hospital Bella Vista, 254 F.3d 358, 362–3 (1st Cir.2001). In reviewing a motion to dismiss under this rule, the court construes the plaintiffs' allegations liberally and “may consider whatever evidence has been submitted, such as ... depositions and exhibits.” Carroll v. United States, 661 F.3d 87, 94 (1st Cir.2011) (internal quotation marks and citations omitted). 1 Accordingly, this court is empowered to [w]eigh the evidence and make factual determinations, if necessary, to determine whether it has jurisdiction to hear the case.” Massachusetts Delivery Ass'n v. Coakley, 671 F.3d 33, 40 n. 6 (1st Cir.2012) (citing Torres–Negrón v. J & N Records, LLC, 504 F.3d 151, 163 (1st Cir.2007)). When faced with a jurisdictional challenge, courts must credit the plaintiffs' well-pleaded factual averments and indulge every reasonable inference in the pleader's favor. Merlonghi v. United States, 620 F.3d 50, 54 (1st Cir.2010) (citing Valentín, 254 F.3d at 363). “The party invoking the jurisdiction of a federal court carries the burden of proving its existence.' ” Johansen v. United States, 506 F.3d 65, 68 (1st Cir.2007) (citations omitted).

Applicable Law and Analysis

The FTCA ‘was designed primarily to remove the sovereign immunity of the United States from suits in tort.’ Millbrook v. United States, –––U.S. ––––, 133 S.Ct. 1441, 185 L.Ed.2d 531 (2013) (citing Levin v. United States, ––– U.S. ––––, 133 S.Ct. 1224, 1228, 185 L.Ed.2d 343 (2013)). It gives district courts, exclusive jurisdiction of civil actions on claims against the United States, ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1). “Substantively, the FTCA makes the United States liable ‘to the same extent as a private individual under like circumstances,’ under the law of the place where the tort occurred.” Levin, 133 S.Ct. at 1228 (citing 28 U.S.C. §§ 1346(b)(1) & 2674).

The waiver of sovereign immunity, however, is subject to several exceptions. See28 U.S.C. 2680. As relevant here, the “discretionary function” exception precludes government liability 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 not the discretion involved be abused.” 28 U.S.C. § 2680(a). “Proper invocation of this exception means that the government will be shielded from liability, no matter how negligenty an employee may have acted.” Santana–Rosa v. United States, 335 F.3d 39, 42 (1st Cir.2003). The Supreme Court has held that “the discretionary function 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.’ Id. (citing Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)); see also United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). “Governmental operations would be burdened, if not paralyzed, with courts ‘second guessing’ policy decisions through the medium of tort law.” Id. (citing Berkovitz, 486 U.S. at 536–37, 108 S.Ct. 1954).

The discretionary function exception applies “if the conduct underlying an FTCA claim both (1) ‘involves an element of judgment or choice,’ and (2) ‘was susceptible to policy-related analysis.’ Sánchez ex rel. D.R.-S. v. United States, 671 F.3d 86, 93 (1st Cir.2012) (citations omitted). If both requirements are satisfied, there is no subject-matter jurisdiction for the claim. Carroll, 661 F.3d at 100. “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.’ United States v. Gaubert, 499 U.S. 315 at 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954). When, however, “the government actors in question have latitude to make decisions and choose among alternative courses of action, the conduct is discretionary.” Ortiz–Lebrón v. United States, No. 10–1513, 2012 WL 6552782, at *12 (D.P.R. Dec. 14, 2012) (citing Bolduc v. United States, 402 F.3d 50, 61 (1st Cir.2005)). If the Court determines that the first prong is met, it must then assess whether the Government's actions were of the kind that the discretionary function exception was designed to shield—that is, whether the exercise of discretion involves or is susceptible to policy-related judgments. Carroll, 661 F.3d at 104 (citing Abreu v. United States, 468 F.3d 20, 26 (1st Cir.2006)); Santana–Rosa, 335 F.3d at 43 (citing Gaubert, 499 U.S. at 325, 111 S.Ct. 1267). There is a presumption “that the exercise of discretion by a government official implicates a policy judgment.” Carroll, 661 F.3d at 104.2

In his complaint, Plaintiff alleges that he suffered damages due to Defendant's negligence in failing to provide him “with a stair or any other equipment to climb his bunk and instead he had to climb to his bunk leaning on the sink and a chair.” Docket # 1, ¶ 5. Defendant counters, however, that the decision to provide ladders for bunk beds falls within the discretionary function exception. It argues that the first prong of the discretionary function exception is satisfied because the decision “involves issues of safety, involves discretion and is not specifically covered by any federal statute.” Docket # 9, p. 7. Citing Bultema v. United States, Defendant further avers that the second prong is also met because the decision not to install ladders, guardrails or any other unidentified equipment in the bunk beds at MDC Guaynabo presents safety and security concerns that involve an “across-the-board policy-making judgment.” See Docket # 9, p. 7–8; Bultema v. United States, 359 F.3d 379, 383 (6th Cir.2004). In his response to the motion to dismiss, Plaintiff merely denies the applicability of the exception, and neither refutes Defendant's contentions nor provides arguments in his favor. For the reasons discussed below, the Court agrees with the Defendant.

It is the duty of the Bureau of Prisons (BOP) to “have charge of the management and regulation of all Federal penal and correctional institutions; provide suitable quarters and provide for the safekeeping, care, ... subsistence, ... protection, instruction, and discipline of all persons charged with or convicted of offenses against the United States.” 18 U.S.C. § 4042(a)(1), (2) and (3); see also28 C.F.R. § 0.95. This statutory provision is written in very general terms, and although it “sets forth a mandatory duty of care, it does not, however, direct the manner by which the BOP must fulfill this duty.” Parrott v. United States, 536 F.3d 629, 637 (7th Cir.2008) (citing Calderón v. United States, 123 F.3d 947, 950 (7th Cir.1997)); see also Montez ex rel. Estate of Hearlson v. U.S., 359 F.3d 392, 396 (6th Cir.2004) ([E]ven if § 4042 imposes on the BOP a general duty of care to safeguard prisoners, the BOP retains sufficient discretion in the means it may use to fulfill that duty to trigger the discretionary function exception” (citing Cohen v. United States, 151 F.3d 1338, 1342 (11th Cir.1998))).

Here, Defendant filed a declaration of the Acting MDC Warden at the time, Edwin Pérez–Salva, which states that [t]here are no rules, regulations or mandatory directives issued by either the United States Department of Justice or BOP concerning the provision of ladders or any other equipment to climb up and down the upper bunk beds at federal correctional facilities.” Docket # 9–5, ¶ 2. He further states that, for safety reasons, this decision is...

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