United States District Court, D. Colorado
Kristen L. Mix United States Magistrate Judge
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] (the “Motion to
Dismiss”). Plaintiff, who proceeds in this matter pro
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”). 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.
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.
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. 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.
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.
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].
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)).
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.
Plaintiff's Negligence Claims
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
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)).
Discretionary Function Exception Under the FTCA
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.
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).
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).
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
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 ...