Pride v. Murray
| Decision Date | 31 March 2022 |
| Docket Number | 3:19-cv-00363-RJC-DCK |
| Citation | 595 F.Supp.3d 453 |
| Parties | Audrey Williams PRIDE, Plaintiff, v. R. Andrew MURRAY, William Barr, Jessie K. Liu, and US Department of the Navy, Defendants. |
| Court | U.S. District Court — Western District of North Carolina |
Audrey Williams Pride, Charlotte, NC, Pro Se.
Haroon Anwar, John Adam Bain, LaCresha Artise Johnson, U.S. Department of Justice, Washington, DC, for Defendants US Department of the Navy, William Barr, R. Andrew Murray, Jessie K. Liu.
SUPPLEMENTAL ORDER
THIS MATTER comes before the Court on Defendants’ Motion to Dismiss for Lack of Jurisdiction the Third Amended Complaint, (DE 33); the Magistrate Judge's Memorandum and Recommendation ("M&R") recommending that this Court grant in part Defendants’ Motion to Dismiss as to Plaintiff's wrongful death claim and deny in part without prejudice as to Plaintiff's personal injury claim, (DE 38); and this Court's previous order adopting in part the M&R, (DE 47). In the Court's previous order, the Court reserved ruling on Plaintiff's personal injury claim pending resolution of the Clendening1 case. As the Fourth Circuit has ruled on this case, the matter is now ripe.
Pro se Plaintiff Audrey Williams Pride ("Plaintiff" or "Pride") filed a Third Amended Complaint against Defendants on June 30, 2020. (DE 30). The Third Amended Complaint is a combination of legal arguments, letters, and portions of another Camp Lejeune complaint2 (with Plaintiff's markings). (Id. ). Plaintiff alleges two claims which appear to arise under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 – 2680 : (1) a personal injury claim and (2) a wrongful death claim on behalf of Plaintiff's stillborn son. The alleged cause of both claims is the United States’ failure to provide clean drinking water at Camp Lejeune and failure to warn after learning of the contaminated water. (Id. ). A liberal reading of the Complaint appears to show that Plaintiff alleges a number of tort allegations against the United States in relation to the two claims, including for defective improvements to real property, negligence, willful or wanton negligence, and fraud. (DE 30 at 2–3, 10, 24, 29).
Defendants filed a Motion to Dismiss for Lack of Subject-Matter Jurisdiction on July 14, 2020. (DE 33). In the M&R on the Motion to Dismiss, the Magistrate Judge recommended granting in part as to Plaintiff's wrongful death claim for failure to exhaust administrative remedies and denying in part without prejudice as to Plaintiff's personal injury claim. (DE 38). As to the personal injury claim, the M&R found that the discretionary function exception to the FTCA's waiver of sovereign immunity did not apply. (Id. at 20). On September 20, 2021, this Court adopted the M&R in part and granted Defendants’ Motion to Dismiss the wrongful death claim, finding that Plaintiff failed to exhaust her administrative remedies as to that claim. (DE 47 at 3–6). However, the Court reserved ruling on the personal injury claim pending resolution of a similar Camp Lejeune water contamination case that was before the Fourth Circuit. As Clendening v. United States , 19 F.4th 421 (4th Cir. 2021) was recently decided, the personal injury claim is ripe for the Court's review.
Plaintiff alleges that due to the negligence of the Navy at Camp Lejeune, she sustained personal injuries (endometriosis, female infertility, aplastic anemia, and neurobehavioral issues) and her unborn child died on account of exposure to contaminated water that was supplied to families living around Hadnot Point. (DE 30 at 2). Plaintiff was the spouse of Navy corpsmen Willie Morris, Jr. and was living at Midway Park near Hadnot Point when her son died during a still birth on April 27, 1986. (Id. at 2–3).
Also included in Plaintiff's Third Amended Complaint are pages that Defendants contend are directly from the complaint of another Camp Lejeune case in Clendening v. United States , No. 7:19-CV-137-BR, 2020 WL 3404733 (E.D.N.C. Jun. 19, 2020). These pages provide additional factual details on the water contamination at Camp Lejeune. Camp Lejeune's water was allegedly served by the Navy's own water supply facilities, which used wells "that tapped into the underground aquifer that had been contaminated by the leaking of toxic and hazardous materials from various sources," including the Hadnot Point Fuel Farm. (Id. at 10–11). The contamination was first discovered around 1980, however military personnel and their families were not warned and continued to consume the contaminated water. (Id. at 11). Tests of the Hadnot Point drinking wells in 1984-88 found elevated levels of benzene and volatile organic compounds. (Id. at 21). In 1989, the Environmental Protection Agency placed Camp Lejeune on the National Priorities List. (Id. ). In approximately 2012, Defendants first publicly revealed the severity of the water contamination in and around the Hadnot Point area. (Id. at 22, 24). Defendants failed to warn military personnel and their families living in and around Hadnot Point of the water contamination prior to 2012. (Id. at 24).
A district court may assign dispositive pretrial matters, including motions to dismiss, to a magistrate judge for "proposed findings of fact and recommendations." 28 U.S.C. § 636(b)(1)(A) & (B). The Federal Magistrate Act provides that a district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. § 636(b)(1)(C) ; FED. R. CIV. P. 72(b)(3). However, "when objections to strictly legal issues are raised and no factual issues are challenged, de novo review of the record may be dispensed with." Orpiano v. Johnson , 687 F.2d 44, 47 (4th Cir. 1982). De novo review is also not required "when a party makes general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations." Id. Similarly, when no objection is filed, "a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.’ " Diamond v. Colonial Life & Acc. Ins. Co. , 416 F.3d 310, 315 (4th Cir. 2005) ().
Regarding the M&R, neither party objected to the Magistrate Judge's standard of review for a motion to dismiss for lack of subject-matter jurisdiction. Therefore, the Court adopts that standard as set forth in the M&R.
Defendants assert that the discretionary function exception to the FTCA's waiver of sovereign immunity applies, which precludes subject matter jurisdiction for the personal injury claim. The Court agrees to the extent any personal injury causes of action stem from a failure to warn. However, to the extent any personal injury causes of action stem from the Navy's failure to provide clean water, the discretionary function exception does not bar subject-matter jurisdiction.
The FTCA "waives sovereign immunity for most torts committed by government employees, subject to several statutory exceptions." McMellon v. United States , 387 F.3d 329, 335 (4th Cir. 2004). One of these exceptions—indeed, "the most important"—"is the discretionary function exception." Id. That exception, codified by statute, specifies that the FTCA's waiver of sovereign immunity does not apply to acts or omissions "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 Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). The rationale underpinning preservation of immunity for discretionary functions "is driven by separation of powers concerns, shielding decisions of a government entity made within the scope of any regulatory policy expressed in statute, regulation, or policy guidance, even when made negligently."
Wood v. United States , 845 F.3d 123, 128 (4th Cir. 2017) ; see also Williams v. United States , 50 F.3d 299, 309 (4th Cir. 1995) (). "Congress intended [the discretionary function] exception to preclude liability for choices made by government officials who must exercise judgment on matters of social, economic, and political policy." Pieper v. United States ex rel. Dep't of Defense , 713 F. App'x 137, 139 (4th Cir. 2017). Plaintiff "bears the burden of demonstrating jurisdiction and showing that none of the FTCA's exceptions [including the discretionary function exception] apply." Wood , 845 F.3d at 127.
The Court possesses subject-matter jurisdiction over FTCA claims only where the discretionary function exception does not apply. Williams , 50 F.3d at 305. For the discretionary function exception not to apply, Plaintiff must plausibly allege two factors. See Berkovitz by Berkovitz v. United States , 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988) (). First, Plaintiff must plausibly allege that the Government has violated "mandatory statutes or regulations." United States v. Gaubert , 499 U.S. 315, 324, 328, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). Second, Plaintiff must plausibly allege "facts which would support a finding that the challenged actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory regime." Gaubert , 499 U.S. at 325, 111 S.Ct. 1267.
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