Smith v. United States
| Decision Date | 20 January 2021 |
| Docket Number | Civil Action No. 7: 20-094-DCR |
| Parties | JONATHAN LEE SMITH, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — Eastern District of Kentucky |
Plaintiff and federal inmate Jonathan Lee Smith is presently confined at the United States Penitentiary ("USP")-Thomson in Thomson, Illinois. Proceeding without an attorney, Smith filed a Complaint against the United States under the Federal Tort Claims Act, 28 U.S.C. § 2670 et seq. ("FTCA"). [Record No. 5] The United States responded with a motion to dismiss Smith's Complaint. [Record No. 17] Following briefing, the matter is ripe for review.
Smith alleges negligence by Bureau of Prisons ("BOP") staff related to a physical injury that occurred while he was housed at the USP-Big Sandy in Inez, Kentucky. [Record No. 5] Smith asserts two claims in his Complaint: 1) a "negligent lifting" claim in which he contends that his shoulder was injured when BOP employees lifted him from the ground while he was handcuffed on April 15, 2019; and 2) a claim that federal employees were negligent in their treatment of his shoulder injury when he was transferred to another federal facility in November 2019, despite the fact that he had an "active medical hold" in place.
According to Smith, on April 15, 2019, after an earlier incident during which he "expressed verbal complaints" separately to Lieutenant Terry Melvin and to C.O. Clarke regarding food delivered to Smith's cell, an emergency response team was dispatched to the cell to remove him. Smith complied with a request to submit to hand restraints prior to being removed from his cell. Smith alleges that he was then removed from the cell and placed on the ground with his hands cuffed behind his back. According to allegations of the Complaint "[w]hen Plaintiff was picked up off the ground he was snatched up by the handcuffs while his hands were cuffed behind his back," which he alleges was negligent. [Id. at p. 4] Smith also alleges that snatching him off the ground by the handcuffs is a violation of BOP Policy. According to Smith, the policy provides that "Staff are cautioned not to use restraints when lifting or carrying a[n] inmate." [Id.] Smith further asserts that, after he was lifted by the handcuffs, he felt something in his shoulder pop, causing him to scream in pain. [Id.]
Smith's Complaint also contains a separate medical negligence claim related to the treatment of the shoulder injury allegedly sustained on April 15. Smith contends that, after the injury, follow-up medical providers determined that he needed to be treated by a "special orthopedic doctor" for the shoulder injury. [Record No. 5 at p. 5] Smith states that he was prescribed moloxicam for the constant pain and that Dr. Jack Steel also commenced physical therapy. [Id.] Smith states that he continued physical therapy for over four months before he was transferred to a difference federal facility (USP-Thomson) on November 7, 2019. [Id.]
This claim does not relate to medical treatment, but relates to an exam on November 5, 2019, and Smith's subsequent transfer to USP-Thomson. Smith alleges that, on November 5, 2019, he was examined by Dr. Steel and that Dr. Steel ordered an MRI. According to Smith, while Dr. Steel was examining him, he [Id. at p. 5] Smith then claims that, when he arrived at USP-Thomson, prison staff claimed that they knew nothing about the November 5 examination or the MRI that Dr. Steel allegedly ordered. According to Smith, [Record No. 5 at p. 7]
Smith's seeks $75,000 in monetary relief, in addition to an order directing the BOP to conduct the MRI and reinstate physical therapy and moloxicam medication. [Record No. 5 at p. 12] He seeks to pursue his claims pursuant to the FTCA, which permits an action against the United States for negligent or intentional acts committed by its employees during the course of their employment. See 28 U.S.C. § 1346(b)(1).
As noted above, the United States has moved to dismiss Smith's Complaint. [Record No. 17] First, it argues that the "negligent lifting" claim is barred by the discretionary function exception to the FTCA. Therefore, the Court lacks jurisdiction over Smith's claim and it should be dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Next, the Government characterizes Smith's medical negligence claim as being based on the medical treatment provided to Smith after he was transferred from USP-Big Sandy to USP-Thomson in Illinois. Thus, it argues that this claims is brought in the wrong venue. According to the Government, this second claim should have been filed in Illinois where Smith now resides and where the alleged acts or omissions occurred. Pursuant to this argument, the claim should be dismissed under Rule 12(b)(3) of the Federal Rules of Civil Procedure. [Record No. 17]
A motion filed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure may challenge subject matter jurisdiction in two ways: a facial attack or a factual attack. See Gentek Bldg. Products, Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). A facial attack "questions merely the sufficiency of the pleading". In resolving a motion making such a challenge, the Court takes the allegations contained in the Complaint as true. Id. (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)). Thus, the review applied to a facial attack is identical to that used when reviewing a motion to dismiss invoking Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Glob. Tech., Inc. v. Yubei (XinXiang) Power Steering Sys. Co., 807 F.3d 806, 810 (6th Cir. 2015).1
But where, as here, a defendant makes a factual attack, the attack challenges the existence of subject matter jurisdiction. And "[w]hen a Rule 12(b)(1) motion attacks a complaint's factual predicate, the court does not presume that the plaintiff's factual allegations are true." Id. As a result, when reviewing a factual attack, "the court can actually weigh evidence to confirm the existence of the factual predicates for subject-matter jurisdiction." Id. (quoting Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 440 (6th Cir.2012). See also United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994); Gentek Bldg. Products, Inc., 491 F.3d at 330 (). In its review, "a court has broad discretion with respect to what evidence to consider in deciding whether subject matter jurisdiction exists, including evidence outside of the pleadings, and has the power to weigh the evidence and determine the effect of that evidence on the court's authority to hear the case." Cartwright v. Garner, 751 F.3d 752, 759-60 (6th Cir. 2014). The party invoking federal jurisdiction (here, the plaintiff) bears the burden of establishing it. Glob. Tech., Inc., 806 F.3d at 810.
The Government argues that the factual basis for Smith's claim (i.e., that he was lifted by the restraints in violation of BOP Policy) is demonstrably untrue. [Record No. 17] Thus, according to the defendant, Smith's claim is clearly about the exercise of discretion used by federal employees when lifting Smith while he was handcuffed. In support, it submits video surveillance footage of the April 15, 2019 incident, which shows that, after Smith was removed from his cell (and while he was handcuffed), he stands upright, then folds his legs underneath him and exclaims that that his legs "gave out." To transport him for further examination, the extraction team surrounded Smith and lifted him by the tops of his arms and armpits, and not by his hands or handcuffs. [Record No. 21]
Smith refers to this camera footage in his Complaint, noting that the incident was recorded by a staff member and that [Record No. 5 at p. 4]2 Smith's allegations are very clear thathis claim is that "[o]fficers snatching [him] off the ground by the handcuffs is a violation of BOP policy," [id.] and that [Id. at p. 6]
In his response to Defendant's motion (and after being given an opportunity to view the video [see Record No. 24]), Smith concedes that he "had always been under the impression that he was moved by the restraints, because this is what it felt like." [Record No. 26 at p. 10] But after his review of the footage, Smith states that "you can clearly see the officer on the right has one hand gripping Plaintiff's bicep and his left hand is somewhere around the elbow region when he lifts Plaintiff and injures Plaintiff's shoulder." [Id.] Thus, according to Smith's response, he now believes that he was lifted by his bicep and elbow region - not by handcuffs.
Regardless of exactly how Smith was allegedly injured (whether it was by being lifted by the handcuffs as Smith originally alleged, or whether it was by being lifted...
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