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Scarborough v. United States

United States District Court, D. Colorado

March 17, 2017



          Kristen L. Mix United States Magistrate Judge

         This matter is before the Court on Defendant's Motion to Dismiss Under FRCP 12(b)(1) and Partial Motion for Summary Judgment Under FRCP 56 [#43][1] (the “Motion to Dismiss”). Plaintiff, who proceeds in this matter pro se, [2] filed a Response [#46], and Defendant filed a Reply [#49]. This matter is also before the Court on Plaintiff's Motion for Requested Relief for Actual Damages, Personal Injury, and Emotional Harm in Plaintiff's FTCA Claim [#59] (the “Motion for Requested Relief”).[3] The Court has reviewed the Motions, the briefing, the case record, and the applicable law, and is fully advised in the premises. For the reasons set forth below, the Motion to Dismiss [#43] is GRANTED in part and DENIED in part. To the extent that Defendant seeks dismissal pursuant to Fed.R.Civ.P. 12(b)(1), the Motion to Dismiss [#43] is granted. To the extent that Defendant moves for summary judgment pursuant to Fed.R.Civ.P. 56, the Motion to Dismiss [#43] is denied as moot.

         I. Background

         Plaintiff initiated this lawsuit pro se on February 4, 2015. Compl. [#1]. Plaintiff is an inmate in a Special Management Unit (“SMU”) program, which is located in the Charlie-Bravo Unit in the United States Penitentiary in Florence, Colorado (“USP Florence”). Id. at 2-6. Plaintiff alleges that on April 12, 2013, he was placed in a USP Florence recreation cage in handcuffs by Bureau of Prisons (“BOP”) employees, and that another inmate who was later brought to the cage slashed him several times with a shaving razor. Id. at 3-4. Plaintiff received medical care for his injuries at the Community Hospital in Pueblo, Colorado for his injuries. Id. at 5.

         Plaintiff filed this action alleging that Defendant's employees were negligent and that their negligence caused Plaintiff's physical injuries, which included cuts to his face, neck, and head. Id. at 5. He also alleges that he suffers nightmares and severe anxiety every time he enters a recreation cage. Id. Specifically, Plaintiff alleges that Defendant's employees were negligent in failing to: (1) collect shaving razors; (2) properly conduct a pat down and metal detector search; and (3) use sally ports.[4] Id. at 6-8; Response [#46] at 6-8. Plaintiff seeks compensatory damages. Compl. [#1] at 10. Additionally, Plaintiff requests further discovery regarding the use of sally ports. Response [#46] at 11.

         On May 2, 2016, Defendant filed the present Motion to Dismiss [#43], arguing that the Federal Tort Claims Act (“FTCA”) precludes subject matter jurisdiction over Plaintiff's claims pursuant to Fed.R.Civ.P. 12(b)(1). Motion to Dismiss [#43] at 1. In the alternative, Defendant argues that summary judgment should enter in Defendant's favor on Plaintiff's second claim pursuant to Rule 56 because there are no genuine issues of material fact. Id.

         In his Response, Plaintiff does not address the 12(b)(1) standard, but instead applies the Rule 12(b)(6) standard. Response [#46] at 4-5. Nonetheless, given Plaintiff's pro se status, the Court will construe Plaintiff's arguments as his response to the FTCA discretionary function arguments that Defendant raises. See Motion to Dismiss [#43].

         II. Legal Standard

         The purpose of a motion to dismiss pursuant to Rule 12(b)(1) is to test whether the court has jurisdiction to properly hear the case before it. Fed.R.Civ.P. 12(b)(1). Because “federal courts are courts of limited jurisdiction, ” the court must have a statutory basis to exercise its jurisdiction. Fed.R.Civ.P. 12(b)(1); Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002). Statutes conferring subject matter jurisdiction on federal courts are to be strictly construed. F & S Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). “The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction.” Id. (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).

         A motion to dismiss pursuant to Rule 12(b)(1) may take two forms: a facial attack or a factual attack. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). When reviewing a facial attack on a complaint, the court accepts the allegations of the complaint as true. Id. By contrast, when reviewing a factual attack on a complaint, the court “may not presume the truthfulness of the complaint's factual allegations.” Id. at 1003. With a factual attack, the moving party challenges the facts on which subject matter jurisdiction depends. Id. Therefore, the court must make its own findings of fact. Id. In order to make its findings regarding disputed jurisdictional facts, the court “has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing.” Id. (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990); Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir. 1987). The court's reliance on “evidence outside the pleadings” to make findings concerning purely jurisdictional facts does not convert a motion to dismiss pursuant to Rule12(b)(1) into a motion for summary judgment pursuant to Rule 56. Wheeler, 825 F.2d at 259.

         III. Analysis

         A. Plaintiff's Negligence Claims

         As noted above, Plaintiff alleges that he was slashed multiple times with a shaving razor by another inmate while in a USP Florence recreation cage. Compl. [#1] at 3-4. Plaintiff alleges that Defendant was negligent in failing to: (1) collect the shaving razor blade from the inmate who attacked him; (2) properly conduct a pat down and metal detector search on the other inmate; and (3) install and use sally ports. Id. at 6-8; Response [#46] at 6-8.

         Defendant argues that it is entitled to sovereign immunity because Plaintiff's claims are subject to the discretionary function exception to jurisdiction under the FTCA, and that the Court therefore lacks subject matter jurisdiction. Motion to Dismiss [#43] at 1. Defendant correctly states that the party invoking federal jurisdiction - Plaintiff - bears the burden of proof on that issue. Motion to Dismiss [#43] at 10 (citing Lujan v. Def. of Wildlife, 504 U.S. 555, 561 (1992)).

         B. Discretionary Function Exception Under the FTCA

         “[S]overeign immunity shields the [federal] government and its agencies from suit.” FDIC v. Meyer, 510 U.S. 471, 475 (1994). “Sovereign immunity is jurisdictional in nature.” Id. Thus, unless the government waives its immunity by consenting to be sued, courts lack subject matter jurisdiction to adjudicate claims asserted against it. United States v. Mitchell, 463 U.S. 206, 238 (1983) (“It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.”). The waiver of sovereign immunity cannot be implied, but rather must be unequivocally expressed. Id. at 219.

         The FTCA waives the federal government's sovereign immunity from tort liability “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). However, a plaintiff must show more than mere negligence, and must show that his “claims are not based upon actions immunized from liability under the FTCA's discretionary function exception.” 28 U.S.C. § 2680(a); Elder v. United States, 312 F.3d 1172, 1176 (10th Cir. 2002). This exception applies when the plaintiff's claim against the government relates to “the exercise or performance or failure to exercise or perform a discretionary function or duty . . . whether or not the discretion involved be abused.” Elder, 312 F.3d at 1176. Thus, a plaintiff must show that the alleged offending conduct did not involve discretionary functions in order to avoid dismissal under Rule 12(b)(1). Aragon v. United States, 146 F.3d 819, 823 (10th Cir. 1998).

         Courts employ the two-pronged test set forth in Berkovitz v. United States in order to determine whether the discretionary function exception applies: (1) whether there was a prescribed course of action; and (2) whether the action was of the kind that the discretionary function exception was designed to shield. 486 U.S. 531, 536 (1988).

         Regarding the first Berkovitz step, courts consider whether the challenged conduct involved an element of judgment or choice, which would trigger the discretionary function exception. If the conduct involved a federal statute, regulation, or policy that specifically prescribed the employee's course of action, the discretionary function exception would not apply because the employee would have no choice but to follow the directive. Elder, 312 F.3d at 1176 (citing Berkovitz, 486 U.S. at 536). When the prescribed course of action is both specific and mandatory, the discretionary function exception does not apply. Aragon, 146 F.3d at 823; see, e.g., Daigle v. Shell Oil Co., 972 F.2d 1527, 1540 (10th Cir. 1992) (finding that general health and safety provisions involved discretion because they were not “specific and mandatory directives”).

         If the conduct involved discretionary judgment under the first step of Berkovitz, then courts “must apply the second step, which requires them to determine whether that judgment is the kind that the discretionary function exception was designed to shield.” 486 U.S. at 536. The Tenth Circuit Court of Appeals has held that the second step is satisfied if the offending action “implicates the exercise of a policy ...

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