Hand v. United States, Civil Action No. 11-6350 (FLW)

• Decision Date: 07 September 2012
• Docket Number: Civil Action No. 11-6350 (FLW)
• Parties: COLLEEN HAND as Administratrix and Administratrix Ad Prosequndum of the Estate of Angela Bellifemini, and Individually Plaintiff, v. THE UNITED STATES OF AMERICA, et al. Defendants.
• Court: U.S. District Court — District of New Jersey

COLLEEN HAND as Administratrix and Administratrix Ad

Prosequndum of the Estate of Angela Bellifemini, and Individually Plaintiff,

v.THE UNITED STATES OF AMERICA, et al. Defendants.

Civil Action No. 11-6350 (FLW)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

Dated: September 7, 2012

*NOT FOR PUBLICATION

OPINION

WOLFSON, United States District Judge:

Defendants, the United States of America, United States Parole Office, United States Parole Commission, and the Federal Bureau of Prisons (collectively "the Government" or "Defendants") move to dismiss Plaintiff's Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), arguing that the Court does not have subject matter jurisdiction to hear this case because the Government is insulated from suit by sovereign immunity and that Plaintiff Colleen Hand ("Plaintiff" or "Hand") has failed to state a claim upon which relief can be granted. Plaintiff filed her Complaint on behalf of herself and as Administratix of the Estate of Angela Bellifemini ("Bellifemini" or "Decedent"). Her claims stem from Bellifemini's March 2009 murder, allegedly committed by Alexander Antoniades ("Antoniades"), who was under supervised release at the time of Bellifemini's death. Hand alleges that the Government wasnegligent in its supervision of Antoniades, and in particular, that the Government should have informed the district court of Antoniades's violation of his supervisory release, and that such negligence contributed to Bellifemini's death. For the reasons that follow, Defendants' Motion is granted and Plaintiff's Complaint is dismissed.

I. BACKGROUND

In general, when the Court addresses a Motion to Dismiss, it must accept Plaintiff's allegations contained in the Complaint as true. See Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d 446, 457 (3d Cir. 2003); Dayhoff, Inc. v. H.J. Heinz Co., 86 F.3d 1287, 1302 (3d Cir. 1996). But as I explain below, where a defendant factually attacks the Court's subject matter jurisdiction, I may review the evidence to satisfy myself that I have the power to dispose of this matter. U.S. ex rel. Atkinson v. PA. Shipbuilding Co., 473 F.3d 506, 512 (3d Cir. 2007). Thus, the facts recited below are taken from the Complaint when not disputed, otherwise they are taken from the certifications and submissions of the parties as indicated. Only the facts necessary to the disposition of Defendants' Motion are recited.

In late 2002, Antoniades pled guilty to armed bank robbery, and was sentenced to 41 months of imprisonment and 5 years of supervised release. Compl., ¶ 23. After serving his term of imprisonment in Missouri, he was released on March 24, 2004, and placed under the supervision of the United States Probation Office in Newark, New Jersey. Id. at ¶¶ 24-27.

Upon the commencement of Antoniades's supervised release, Maurine Rush-Blossfeld ("Rush-Blossfeld" or "Probation Officer") was assigned as Antoniades's probation officer. The initial supervision revealed that Antoniades suffered from multiple medical problems: advanced Hepatitis C, drug and sexual addictions, psychiatric compulsive disorder, and depression. Hengemuhle's Cert., Ex. A (the "Probation Chronological Record Report" or "ProbationRecord") at 1 (attached to Def. Br., Dkt. No 5-2). Based on this information, Rush-Blossfeld provided Antoniades with a rehabilitation plan coordinated with Saint Michael's Medical Center that was tailored to Antoniades's particular circumstances including drug and mental counseling. Id. at 4. Rush-Blossfeld met with and telephoned Antoniades on a regular basis to assess and monitor Antoniades's progress with the plan; the plan worked successfully for about a year until Antoniades started to relapse. Id. at 17. Due to Antoniades's continued drug use, combined with his unstable mental condition, Rush-Blossfeld initially intensified the counseling program, but ultimately enrolled Antoniades in a residential drug treatment facility in August 2005. Id. at 19. During this time, Antoniades informed Rush-Blossfeld that he had a new girlfriend, who was later identified as Bellifemini. Id

Then, in April 2006, Antoniades was arrested for possession of drug paraphernalia in Verona, New Jersey. Plaintiff's Sur-Reply, Ex. A ("Criminal History Report") at 2. He pled guilty to the charge and was sentenced to one year of probation. Id. On May 10, 2006, the arrest was reported to the district court where he had been sentenced. Probation Record at 55.¹ Due to Antoniades's critical mental condition, Rush-Blossfeld requested that the court take no action so that the she could work intensively on Antoniades's drug addiction issues. Id. at 57. The court agreed and took no further action. Id. Then, in February 2007, Antoniades was arrested for possession of crack cocaine in Newark, New Jersey. Plaintiff's Sur-Reply, Ex. A at 2. Antoniades pled guilty to this felony charge, and was sentenced to three years' probation. Id. On March 12, 2007, this arrest was reported to the district court. Probation Record at 79.² After this, Antoniades and Bellifemini disappeared for a week and Antoniades did not report in withRush-Blossfeld. When he finally did contact Rush-Blossfeld, Antoniades admitted that he and Bellifemini had been "holed up" in a hotel using heroin and cocaine. Id. at 75. This relapse was reported to the district court on June 19, 2007. Id. at 79. In July, after having been notified of the relapse, and on Antoniades's consent, the court modified the conditions of Antoniades's supervised release and confined him to his residence for three months while wearing an electronic monitoring device. Id.; Hengemuhle's Cert., Ex. C. Subsequently, Rush-Blossfeld issued a Violation of Supervised Release Report. Hengemuhle's Cert., Ex. D. This Report was based on the Newark arrest as well as the repeated substance abuse relapses and failure to answer inquiries truthfully about associating with a prostitute. At a hearing before the district court on February 1, 2008, Antoniades pled guilty to a violation of supervised release and was sentenced to an additional six months of electronically monitored home arrest, which started in February 2008 and continued until August. During this time, Antoniades continued to remain in an intensive medical monitoring program and complied with the terms of his release. Probation Report at 109.

Then, in October 2008, Antoniades was arrested for possession of drug paraphernalia in Bloomfield, New Jersey. Plaintiff's Sur-Reply, Ex. A at p. 2. He was found guilty of that offense and fined $405. Id. This arrest and conviction were never reported to the court as a violation of Antoniades's supervised release. During that month, Antoniades informed the Probation Officer that he broke up with Bellifemini. Probation Report at 110. However, it was later learned that he had participated in AA/NA meetings with Bellifemini, and he was repeatedly observed at a police station, in connection with Bellifemini's DWI arrest. Id. at 111, 114. Then on March 14, 2009, Antoniades was arrested for the murder of Bellifemini in Sussex County, New Jersey. Id. at 112.

Plaintiff seeks damages from the Government under the Federal Tort Claim Act ("FTCA"), 28 U.S.C. §§ 1346(b) and 1339. Plaintiff claims that the Government was negligent in supervising Antoniades's supervised release, and that such negligence was the proximate cause of the death of Bellifemini. In response, the Government has moved to dismiss Plaintiff's Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), arguing that the discretionary function exception of the FTCA deprives the Court of subject matter jurisdiction, and that Plaintiff has failed to state a claim for Breach of Contract (Count XII).

II. DISCUSSION

A. 12(b)(1) Motion Standard

When a motion to dismiss is based on lack of subject matter jurisdiction pursuant to Rule 12(b)(1), as well as other Rule 12(b) defenses, the Court should consider the Rule 12(b)(1) challenge first because if there is no subject matter jurisdiction, then the accompanying defenses become moot and need not be addressed. See Kerchner v. Obama, 669 F.Supp.2d 477, 480-81 (D.N.J. 2009) (quoting Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987)). Accordingly, the Court turns first to Defendants' contention that this Court lacks subject matter jurisdiction over the instant action.

When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff bears the burden of persuasion. Symczyk v. Genesis HealthCare Corp., 656 F.3d 189, 191 n.4 (3d Cir. 2011) (quoting Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)). No presumption of truthfulness is accorded to the plaintiff's allegations. Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3 (3d Cir. 2006) (quoting Mortensen v. First Fed. Sav. & Loan, 549 F.2d 884, 891 (3d Cir.1977)). The court "must start by determining whether [it is] dealing with a facial or factual attack to jurisdiction. If [it] is a facial attack, the court looks only at theallegations in the pleadings and does so in the light most favorable to the plaintiff." U.S. ex rel. Atkinson v. PA. Shipbuilding Co., 473 F.3d 506, 509 (3d Cir. 2007). "If [it] is a factual attack, however, it is permissible for a court to review evidence outside the pleadings." Id. at 514. A judicial challenge is a factual challenge if "it concerns not an alleged pleading deficiency, but rather the actual failure of [plaintiff's] claims to comport with the jurisdictional prerequisites." Id.

In this case, Plaintiff claims that because the Government does not challenge the factual allegations asserted in the complaint, this Court must consider the Government's motion as a facial attack. This is not true, however, as the Government is attacking the factual contentions of whether certain arrests were reported to the court, what was the nature of Antoniades's conduct that led to those arrests, and what...