Bohnenkamp v. Whisterbarth

Decision Date23 April 2021
Docket NumberCase No. 1:19-cv-00115-RAL
PartiesRACHEL BOHNENKAMP Plaintiff v. JAMES WHISTERBARTH, et al., Defendants
CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania

RICHARD A. LANZILLO UNITED STATES MAGISTRATE JUDGE

MEMORANDUM OPINION AND ORDER ON DEFENDANTS' MOTION TO DISMISS FOR LACK OF JURISDICTION
ECF No. 39
I. Introduction

Plaintiff Rachel Bohnenkamp is the spouse of an inmate housed at the Federal Correctional Institution at McKean, Pennsylvania (FCI-McKean). She brings this action against the United States of America (the Government) under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b); 28 U.S.C. §2671, et seq. (Count I), and against Defendant James Wusterbarth, a former Bureau of Prisons Correctional Officer, under the state common-law theories of intentional infliction of emotional distress and invasion of privacy (Counts II and III). The Government has moved pursuant to Fed. R. Civ. P. 12(b)(1) to dismiss Mrs. Bohnenkamp's FTCA claim, arguing that the Court lacks subject matter jurisdiction over that claim because (1) Wusterbarth's alleged misconduct upon which the claim arises occurred outside the scope of his employment with the Federal Bureau of Prisons (BOP); (2) both the FTCA's intentional tort exception and the FTCA's discretionary function exception bar her FTCA claim; and (3) Mrs. Bohnenkamp failed to exhaust her administrative remedies concerning her negligent hiring/supervision theory of liability against the Government before she filed this action.1

For the following reasons, the Government's motion will be GRANTED in part and DENIED in part.

II. Factual Background

Defendant James Wusterbarth was hired as a Correctional Officer at FCI McKean on November 29, 2015. ECF No. 40-2, ¶ 4. On August 18, 2018, Wusterbarth was on duty in the visitors' room at FCI-McKean when Mrs. Bohnenkamp and her two minor sons arrived to visit Mr. Bohnenkamp. ECF No. 30, ¶¶ 15-16. Mrs. Bohnenkamp had arranged for her, Mr. Bohnenkamp, and their sons to visit the "family playroom" of the visiting area. Id., ¶ 18. When Mrs. Bohnenkamp arrived, Wusterbarth motioned for her to come over to the desk where he was stationed to oversee visiting room activity. Id., ¶¶ 19-20. When she complied, Wusterbarth remarked to Mrs. Bohnenkamp that "he had not spoken to her much in the facility." Id., ¶ 21. This comment struck Mrs. Bohnenkamp as odd because she had never met Wusterbarth before that day. Id., ¶ 20.

Wusterbarth then instructed Mrs. Bohnenkamp to provide the last two digits of her telephone number, explaining that he needed to speak with her. Id., ¶ 22. When Mrs. Bohnenkamp asked why, Wusterbarth replied that he could not speak freely in the facility but "hinted that there was an issue with Mrs. Bohnenkamp's husband Chris, which Defendant Wusterbarth needed to discuss with her in private." Id., ¶¶ 22-23. This exchange left Mrs. Bohnenkamp "extremely troubled." Id., ¶ 24. Wusterbarth then "warned her that she could not speak to anyone, includingher husband, about the subject of their conversation," which "only heightened" her concern. Id., ¶ 24. Wusterbarth again directed Mrs. Bohnenkamp to provide him with the last two digits of her telephone number so that he could contact her. Id., ¶ 25. The stress and anxiety caused by Wusterbarth's orders and comments made her feel nauseous. Id., ¶ 26. Mrs. Bohnenkamp ultimately provided the numbers to Wusterbarth, "believing that she had no other option and fearing that her husband was in some type of serious trouble." Id.

Later that day, at approximately 4:03 p.m., after Mrs. Bohnenkamp and her sons had left FCI-McKean, she received a call on her cell phone from Wusterbarth. Id., ¶ 27. Wusterbarth told her that he needed to meet her to discuss her husband. Id., ¶ 28. Mrs. Bohnenkamp refused to meet Wusterbarth and demanded to know what was going on. Id., ¶ 29. Wusterbarth then acknowledged that his call was not about her husband; he explained that he was attracted to her and wanted to see her. Id., ¶ 30. Mrs. Bohnenkamp immediately responded that his advances were inappropriate and that she was committed to her husband and children. Id., ¶ 31.

Despite this rebuke, Wusterbarth insisted multiple times during the call that they meet, including at the hotel where she was staying with her two sons. Id., ¶ 32. He instructed her "to leave her two children, ages seven and nine, alone in the hotel room and to meet him in the lobby." Id., ¶ 33. When Mrs. Bohnenkamp refused, he instructed her to drive to Buffalo to meet him because he knew she lived near Niagara Falls. Id., ¶ 34. Now, frightened that Wusterbarth knew her address, Mrs. Bohnenkamp again refused. At this, Wusterbarth then "threatened her that she could never tell anyone about his advances, and that if she did her husband would be in serious danger." Id., ¶ 35.

The next day, when Mrs. Bohnenkamp returned to FCI-McKean with her sons to visit her husband, Wusterbarth was again on duty in the visitors' area. Id., ¶ 36. When he saw Mrs.Bohnenkamp, Wusterbarth motioned to her to keep silent—a threat which terrified Mrs. Bohnenkamp and left her in fear for her own safety and that of her husband and children. Id., ¶ 37. As instructed, Mrs. Bohnenkamp did not disclose Wusterbarth's advances and threats for months. Id., ¶ 38. Because Mrs. Bohnenkamp had given her personal information—including her address, email, and phone number—to the prison when she had registered to visit her husband, she feared what Wusterbarth could do with access to this information. Id., ¶ 38.

On November 28, 2018, Wusterbarth called one of the Bohnenkamps' sons on his phone, identified himself as an officer at the Bureau of Prisons, and told him that his father "had recently been in an altercation at the prison, and had died." Id., ¶ 40. When Mrs. Bohnenkamp's son related this information to her, she was terrified and contacted the prison. Id., ¶ 41. A prison official advised that her husband was alive and had not been involved in any incident. Id.

On March 2, 2019, while Mrs. Bohnenkamp visited her husband at FCI-McKean, another corrections officer informed them that a new officer would be supervising the visitors' room for the next quarter. Id., ¶ 42. When Mrs. Bohnenkamp asked whether Wusterbarth would be supervising visitation, the same corrections officer advised her that Wusterbarth was on voluntary leave pending an investigation of sexual harassment and misconduct against visitors. Id., ¶¶ 43-44. That same day, Mrs. Bohnenkamp filed a report regarding Wusterbarth's misconduct with the Bradford, Pennsylvania Police Department. As part of her report, she told the police that Wusterbarth had contacted her using a cell phone with a Las Vegas area code. Id., ¶ 47. Later that evening, at 9:17 p.m., Mrs. Bohnenkamp received a series of text messages from a number she did not know, which read as follows: "You opened your mouth, you aren't smart at all"; "2022 you seem comfortable at best"; "My Vegas number? Seriously"; "See ya soon." Id., ¶¶ 48-49. Mrs. Bohnenkamp understood the reference to '2022" to be to Mr. Bohnenkamp's prison release date, while "My Vegas number?"referred to the fact that Mrs. Bohnenkamp had provided Wusterbarth's Las Vegas area cell phone number to the Bradford Police. Id., ¶ 51. Mrs. Bohnenkamp feared that these text messages meant that Wusterbarth would harm her or her family in retaliation for her police report. Id., ¶¶ 52-53. To avoid Wusterbarth, Mrs. Bohnenkamp changed her phone number and moved her family multiple times. Id., ¶ 53. When Mrs. Bohnenkamp reported Wusterbarth's conduct to officials at FCI McKean, she was informed that they "already knew about Defendant Wusterbarth's predatory conduct, and had known for some time." Id., ¶¶ 57-58. Mrs. Bohnenkamp also alleges that prison officials, including Warden Trate, had known that Wusterbarth kept an office calendar on which he recorded when various women were scheduled to come to the visitors' area at FCI-McKean, that Wusterbarth used this calendar to ensure that he was present when the women he wanted to pursue came to the prison, and that Warden Trate was aware of Wusterbarth's calendar before his contact with Mrs. Bohnenkamp on August 18, 2018. Id., ¶¶ 58-61.

Mrs. Bohnenkamp filed an administrative claim alleging Wusterbarth subjected her to the preceding mistreatment and that Warden Trate was aware of Wusterbarth's predatory conduct. Id., ¶ 68. See also ECF No. 40-3. Her administrative claim was denied on June 15, 2020. ECF No. 30, ¶ 69.

III. Standard of Review

A motion to dismiss pursuant to Rule 12(b)(1) challenges a court's subject-matter jurisdiction over the plaintiff's claims. Fed. R. Civ. P. 12(b)(1). "At issue in a Rule 12(b)(1) motion is the court's 'very power to hear the case.'" Judkins v. HT Window Fashions Corp., 514 F. Supp.2d 753, 759 (W.D. Pa. 2007) (quoting Mortensen v. First Federal Savings & Loan Association, 549 F.2d 884, 891 (3d Cir. 1977)). As the party invoking the jurisdiction of the court, the plaintiff bears the burden of showing that her claims are properly before the court. Brown v. Tucci, 960 F. Supp. 2d 544, 561-62(W.D. Pa. 2013) (citing Development Finance Corp. v. Alpha Housing & Health Care, 54 F.3d 156, 158 (3d Cir. 1995)). A Rule 12(b)(1) challenge can be either to the face of the complaint or to the facts upon which the invocation of subject matter jurisdiction is based. Petruska v. Gannon University, 462 F.3d 294, 302, n. 3 (3d Cir.2006). In reviewing a Rule 12(b)(1) motion, a court must determine whether it is asserting a facial attack or a factual attack. Id. A facial attack challenges jurisdiction based on the sufficiency of the plaintiff's pleading. When considering a facial attack, a court must accept the allegations contained in the plaintiff's complaint as true. Id. In contrast, where the motion presents a factual attack on the court's jurisdiction, the court does not attach a presumption of truthfulness to...

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