Alvarado-David v. United States

• Decision Date: 24 September 2013
• Docket Number: Civil No. 12–1566 (SEC).
• Citation: 972 F.Supp.2d 210
• Parties: Alvin ALVARADO–DAVID, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Puerto Rico

972 F.Supp.2d 210

Alvin ALVARADO–DAVID, Plaintiff,
v.
UNITED STATES of America, Defendant.

Civil No. 12–1566 (SEC).

United States District Court,
D. Puerto Rico.

Sept. 24, 2013.

[972 F.Supp.2d 212]

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

[972 F.Supp.2d 213]

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

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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...