Busara v. United States
| Docket Number | 2:21-cv-4055 |
| Decision Date | 27 April 2023 |
| Parties | EKABAL PAUL BUSARA v. UNITED STATES OF AMERICA |
| Court | U.S. District Court — Western District of Louisiana |
REPORT AND RECOMMENDATION
Before the court is a Motion to Dismiss filed on October 12, 2022 pursuant to Rules 12(b)(1) of the Federal Rules of Civil Procedure by defendant, the United States of America. Doc 21. This motion was filed in response to the complaint filed pursuant to the Federal Tort Claims Act (“FTCA”) 28 U.S.C. § 2671 et seq., by plaintiff Ekabal Paul Busara (“Busara”). Doc. 1. Busara file an Opposition to the defendant's motion on November 7, 2022 (doc. 26), and the government filed a reply on December 14, 2022 (doc. 27). The motion is now ripe for review.
These motions have been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636. For the following reasons, IT IS RECOMMENDED that the defendant's Motion for to Dismiss (doc. 21) be GRANTED.
Plaintiff, Ekabal Busara,, Reg. No. 40683-050, is a federal inmate serving a forty (40)-year sentence for kidnapping and conspiracy to commit kidnapping. See Public Information Inmate Data, doc. 21, att. 2, p. 2. Plaintiff has been in federal custody, including pretrial custody since March 5, 2003. Id. at p. 3.
It is undisputed that in March 2020, while incarcerated at the Federal Correctional Center in Oakdale, Louisiana (FCIO), plaintiff contracted COVID-19. See doc. 1; see also plaintiff's medical records, in globo, doc. 21, att. 14. He was admitted to the hospital on March 29, 2020, at which time he was intubated, placed him on a ventilator, and ultimately remained hospitalized until June 26, 2020. Doc. 21, att. 14. On July 31, 2020, he returned to the hospital due to complaints of chest pains. Id. After undergoing numerous tests, he was discharged, instructed to have follow up tests, to gradually resume normal activities, and to limit salt and cholesterol intake. Id.
The matter before this Court is brought pursuant to the Federal Tort Claims Act (“FTCA”) case wherein the plaintiff alleges that he contracted COVID-19 because the warden failed to timely implement and/or follow safety guidelines recommended by the Federal Bureau of Prisons (“BOP”). Doc. 1. The Government avers that plaintiff's action should be dismissed because the discretionary function exception to the FTCA bars the suit and the Court therefore lacks subject matter jurisdiction.
In support of its motion to dismiss, the government submitted the Federal Bureau of Prisons (“BOP”) and FCIO Covid-19 safety and prevention protocols, which set for the following: Beginning in January 2020, the Federal Bureau of Prisons established a task force to begin strategic planning for COVID-19 procedures and to build on the existing framework pertaining to pandemics. See BOP COVID-19 Update Press Release, doc. 21, att. 3. On January 31, 2020, BOP recommended that all new inmates be screened for COVID risk factors and symptoms. See Guidance on 2019 Novel Coronavirus Infection for Inmate Screening and Management, id. at att. 4. The agency also provided a screening tool for use in accomplishing that initiative. See Coronavirus Inmate Screening Tool, id. at att. 5. BOP also recommended use of personal protective equipment (“PPE”) for those staff members who came in close contact with individuals who had been officially diagnosed with COVID, or who might have been infected with the virus. Id.
On February 12, 2020, the Centers for Disease Control and Prevention (“CDC”) discouraged the use of face masks by the general public, stating: See Transcript for CDC Telebriefing: CDC Update on Novel Coronavirus, dated February 12, 2020, https://www.cdc.gov/media/releases/2020/t0212-cdc-telebriefing-transcript.html.
Between February 24 and 27, 2020, the health services administrator at FCC Oakdale established procedures for screening new inmates for COVID, and provided the screening tool to all health services personnel. In a February 28, 2020 email memorandum, the warden further instructed prison staff to utilize the screening tool. See “Coronavirus Awareness” email dated February 28, 2020, id. at att. On February 29, 2020, BOP recommended screening of all newly arriving inmates and all staff with potential risk factors. See Guidance Update for Coronavirus Disease 2019 (COVID19), id. at att. 7.
On March 9, 2020, BOP issued guidance indicating that any staff returning from an “area of concern[1]” should fill out and submit the screening tool before being permitted to return to work. See Coronavirus Disease 2019 (COVID-19): Screening and Leave Guidance, id. at att. 8; see also Staff Screening Tool, id at att. 9. On March 10, 2020, a staff member returned to work at FCI Oakdale without being screened after taking a trip to New York. However, BOP's guidance regarding screening of staff members returning from an area of concern did not apply at that time because New York was not added to the CDC Travel Advisory List until March 28, 2020. See CDC Media Statement dated March 28, 2020, https://www.cdc.gov/media/releases/2020/s038-travel-advisory.html.
As of March 10, 2020, the CDC continued to discourage the wearing of masks by the general public in an effort to preserve the number of masks available to heath care workers. See Transcript of March 10, 2020 CDC Media Telebriefing: Update on COVID-19 which states, [2]
On March 13, 2020, former President Trump declared COVID-19 a National Emergency, and issued a travel ban restricting entry into the United States. See A Timeline of COVID-19 Developments in 2020.[3] On that same date, the BOP suspended all internal movement (transfers between facilities) and instructed prison wardens to implement modified operations to maximize social distancing. See BOP Coronavirus (COVID-19) Phase Two Action Plan, doc. 21, att. 10.
However, this BOP directive also indicated that “programs should continue to be operated when feasible.” Id. Any asymptomatic inmates with risk factors were to be quarantined, and symptomatic inmates were to be isolated. Id. BOP also called for enhanced staff screening in areas with "sustained community transmission." Id. As of March 13, 2020, no BOP inmates had tested positive for COVID-19. Id.
These BOP initiatives were echoed by a March 13, 2020 memorandum issued at FCC Oakdale regarding COVID-19 protective measures. See BOP Coronavirus (COVID-19) Protective Measures, Id. at att. 11. The memorandum established the following measures, which were to be effective immediately:
1. Screening of inmates for COVID-19 as follows:
2. All social visits were suspended for 30 days
3. Inmate movement between facilities was suspended for 30 days
4. All legal visits were suspended for 30 days
5. All volunteer visits were suspended for 30 days
6. The prison was to “to limit inmate group contact, as much as possible.”
The memorandum also noted that no inmates had tested positive to date. Id.
On March 18, 2020, BOP updated its action plan to provide that:
See Coronavirus (COVID-19) Phase Two Action Plan - Update #1, id. at att. 12.
Plaintiff alleges that on March 21, 2020, inmates from Eva housing unit were moved into his unit (Vernon) without first being tested. Doc. 1, p. 3, ¶ 5. However, as indicated above, the BOP action plan in effect as of March 18, 2020, did not require testing of asymptomatic inmates. Doc. 21, att. 12, p. 4. There was no mandate requiring the mass testing of the inmate population. Aligned with BOP's March 18, 2020, action plan, the Oakdale warden issued a memorandum to the inmate population outlining COVID-19 best practices. Id. at att. 13. The warden's memorandum, also dated March 18, 2020, offered the following tips for how inmates could protect themselves against contracting the virus:
A. Legal Standards
A motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), may be treated as either a facial or factual challenge to the court's jurisdiction. Williamson v. Tucker, ...
To continue reading
Request your trial