Fleming v. United States

• Decision Date: 03 October 2022
• Docket Number: 4:20-cv-545-WS/MJF
• Parties: RHONDA FLEMING, Plaintiff, v. UNITED STATES OF AMERICA and WARDEN ERICA STRONG, Defendants.
• Court: U.S. District Court — Northern District of Florida

RHONDA FLEMING, Plaintiff, v. UNITED STATES OF AMERICA and WARDEN ERICA STRONG, Defendants.

No. 4:20-cv-545-WS/MJF

United States District Court, N.D. Florida, Tallahassee Division

October 3, 2022

REPORT AND RECOMMENDATION

Michael J. Frank, United States Magistrate Judge

Plaintiff Rhonda Fleming-formerly a denizen of the Federal Correctional Institution Tallahassee (“FCIT”)-complains about alleged “overcrowding” at the prison and injuries she suffered after an “assault” by another inmate. In her fifth amended complaint, Fleming asserts three claims against the United States under the Federal Tort Claims Act and two Bivens claims against Warden Erica Strong. Defendants have moved to dismiss Fleming's claims. Doc. 84. Fleming responded in opposition. Docs. 89 119. For the reasons set forth below, the District Court should grant in part and deny in part Defendants' motion to dismiss.

I. Background

In October 2018, the Bureau of Prisons (“BOP”) transferred Fleming to FCIT and assigned her to the B-North housing unit. Doc. 61 at 6 ¶ 7. Fleming alleges that the inmates in B-North slept on bunk beds, with only two or three inches of separation between bunk beds. Id. at 6-7 ¶ 8.

In January 2019, the BOP reassigned Fleming to the A-South housing unit. Id. at 6 ¶ 1. Fleming alleges that the ceiling, walls, and windowsills were “covered with [t]oxic mold” and other unidentified “toxins” and that asbestos also was present. Id. ¶ 2. Fleming also alleges that the roof leaked. Id. ¶¶ 2, 4.

These conditions allegedly caused Fleming to suffer from “daily headaches,” “hair loss,” “extreme sudden weight gain,” and “memory loss.” Doc. 61 at 6 ¶ 5. Fleming also alleges that the “COVID-19 virus is worsened by exposure to mold.” Id. ¶ 6.

Fleming further alleges that her sleeping conditions remained unchanged during the COVID-19 pandemic. Id. at 7 ¶ 10. The sleeping conditions and alleged “overcrowding” at FCIT prevented Fleming from socially distancing during the COVID-19 pandemic. Id. at 7-8 ¶¶ 11, 19.

Fleming also alleges that on October 29, 2019, an inmate (“Cruz”) “assaulted” her. Id. at 8 ¶ 20. According to Fleming, BOP staff required Cruz to leave the education building during a “controlled movement,” because Cruz was dressed improperly and possessed “contraband.” Doc. 61 at 8 ¶ 21. Ten minutes later, an “order was given over the radio that the movement was closed and to secure the doors and gates of each officer[']s post.” Id. ¶ 22. Because Cruz's “housing unit officer failed to secure the door, the gate leading to the Education Building was not locked, and the Education Building was not locked/secured,” Cruz allegedly was able to re-enter the education building and “assault” Fleming. Id. When the responding employee departed to retrieve her radio, Cruz allegedly “assaulted” Fleming again. Id. Fleming purportedly sustained head, neck, and wrist “injuries.” Id. ¶ 24.

On May 11, 2022, the BOP transferred Fleming to Federal Correctional Institution Dublin in California. Doc. 107.

Fleming attempts to assert claims under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., and Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). She alleges that the United States is liable under the FTCA because BOP employees were negligent insofar as they:

• failed to remove mold and asbestos and prevent leaks;

• permitted “overcrowding” during the COVID-19 pandemic; and

• failed to follow “General Post Rules” during a “controlled movement.” Doc. 61 at 11-13. She also alleges that Strong violated the Eighth Amendment because Strong permitted the following conditions in Fleming's housing unit:

• a leaking roof, which resulted in a wet bed;

• mold on the ceiling, windowsills, and doors, and in the food-service building; • more than 80 inmates in “an open dorm”; and

• insufficient “sanitation and ventilation.”

Id. at 13 ¶ 41. Fleming also alleges that Strong retaliated against Fleming for filing grievances and claims-in violation of the First Amendment-by refusing to “remove” Fleming from these allegedly unsatisfactory conditions. Id. at 14 ¶ 48.

Defendants move to dismiss Fleming's claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Doc. 84. Defendants' Rule 12(b)(1) motion is a facial attack. Doc. 138 at 4-5.

II. Standards

A. Rule 12(b)(1) Standard

Under Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss a claim for lack of subject-matter jurisdiction. Fed.R.Civ.P. 12(b)(1). A motion to dismiss under Rule 12(b)(1) may raise a factual or facial attack. Kennedy v. Floridian Hotel, Inc., 998 F.3d 1221, 1230 (11th Cir. 2021) (citing Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990)); see Douglas v. United States, 814 F.3d 1268, 1274-75 (11th Cir. 2016). A facial attack, like Defendants' attack here, “challenges whether a plaintiff ‘has sufficiently alleged a basis for subject matter jurisdiction, and the allegations in [the] complaint are taken as true.” Kennedy, 998 F.3d at 1230 (quoting Lawrence, 919 F.2d at 1529).

B. Rule 12(b)(6) Standard

Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). For a claim to survive dismissal, the “complaint must contain sufficient factual matter, accepted as true,” to state a facially plausible claim. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). Allegations that merely suggest the possibility that a defendant acted unlawfully are insufficient; the allegations must be “enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Additionally, “[m]ere ‘labels and conclusions or a formulaic recitation of the elements of a cause of action will not do,' and a plaintiff cannot rely on ‘naked assertions devoid of further factual enhancement.'” Franklin v. Curry, 738 F.3d 1246, 1251 (11th Cir. 2013) (internal quotation marks and alteration omitted) (quoting Iqbal, 556 U.S. at 678).

Under Rule 12(b)(6), courts accept all well-pleaded factual allegations of the complaint as true and evaluate all reasonable inferences derived from those facts in the light most favorable to the plaintiff. Newbauer v. Carnival Corp., 26 F.4th 931, 934 (11th Cir. 2022). Courts also “hold the allegations of a pro se complaint to less stringent standards than formal pleadings drafted by lawyers.” Campbell v. Air Jam. Ltd., 760 F.3d 1165, 1168 (11th Cir. 2014). But courts “cannot act as de facto counsel or rewrite an otherwise deficient pleading to sustain an action.” Bilal v. Geo Care, LLC, 981 F.3d 903, 911 (11th Cir. 2020).

III. Discussion

A. Fleming's FTCA Claims Against the United States

Fleming asserts three FTCA claims: (1) a “social distancing” claim; (2) a “failure to protect” claim; and (3) a “mold and asbestos” claim. Doc. 61 at 11-13.

1. “Social Distancing” Claim

Defendants move to dismiss Fleming's “social distancing” claim because she failed to exhaust her administrative remedies. Doc. 84 at 9-10. Additionally, because the application of the discretionary-function exception to the FTCA is a jurisdictional matter, the undersigned ordered the parties to address the exception's application to this claim. See Zelaya v. United States, 781 F.3d 1315, 1339-40 (11th Cir. 2015) (treating the section 2680 exceptions as jurisdictional issues that can be raised sua sponte); Mirmehdi v. United States, 689 F.3d 975, 984 n.7 (9th Cir. 2012) (considering the discretionary-function exception sua sponte).

(a). At This Stage, Dismissal Is Not Warranted for Failure to Exhaust

Before initiating an action under the FTCA, a plaintiff must exhaust all available administrative remedies by presenting the claim to the appropriate federal agency and receiving a final denial from the agency. 28 U.S.C. § 2675(a); see 28 C.F.R. § 543.30; Douglas, 814 F.3d at 1279 (“Prisoners may file suit only after final agency action.”). A claimant “must provide written notice to the agency that includes (1) sufficient information to enable the agency to investigate the claim, and (2) a sum certain for the amount of damages sought.” Dixon v. United States, 96 F.Supp.3d 1364, 1368-69 (S.D. Ga. 2015) (citing Adams v. United States, 615 F.2d 284, 289 (5th Cir. 1980)). If a claimant has “not received a letter either proposing a settlement or denying [her] claim within six months after the date [her] claim was filed, [the claimant] may assume [her] claim [wa]s denied . . . [and] proceed to file a lawsuit.” 28 C.F.R. § 543.32(i).

The failure-to-exhaust analysis comprises two steps. Shivers v. United States, 1 F.4th 924, 935 (11th Cir. 2021) (citing Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008)). First, the court compares the factual allegations in the defendant's motion to dismiss to those in the plaintiff's response. Id. (citing Turner, 541 F.3d at 1082). If the respective allegations conflict, the court must presume that the plaintiff's version is true, and “[i]f, in that light, the defendant is entitled to have the complaint dismissed for failure to exhaust administrative remedies, it must be dismissed.” Id. (quoting Turner, 541 F.3d at 1082).

Second if the complaint is not subject to dismissal at the first step, “the court proceeds to make specific findings in order to resolve the disputed factual issues related to exhaustion.” Id. (quoting Turner, 541 F.3d at 1082). “The defendant[] bear[s] the burden...