Opinion
CASE NO. 19-25190-CV-WILLIAMS
2022-03-30
Joseph COATES, Plaintiff, v. UNITED STATES of America, Defendant.
Joseph Coates, St. Augustine, FL, Pro Se. Monica L. Haddad, U.S. Attorney's Office, Miami, FL, for Defendant.
Joseph Coates, St. Augustine, FL, Pro Se.
Monica L. Haddad, U.S. Attorney's Office, Miami, FL, for Defendant.
ORDER GRANTING DEFENDANT UNITED STATES OF AMERICA'S MOTION FOR SUMMARY JUDGMENT
KATHLEEN M. WILLIAMS, UNITED STATES DISTRICT JUDGE
THIS MATTER is before the Court on the Defendant's motion for summary judgment ("Motion") (DE 47) with supporting statement of material facts and exhibits (DE 45–46), Plaintiff's response in opposition ("Response") (DE 51), and Defendant's reply (DE 57), together with pertinent parts of the record. For the reasons discussed below, Defendant's Motion for Summary Judgment (DE 47) is GRANTED and the Plaintiff's Motion and Amended Motion for Summary Judgment (DE 50, 56) are DENIED.
All citations in this Order to the Court's electronic docketing system use the abbreviation "DE" for docket entry, followed by the number of the relevant docket entry. Further, all citations to page numbers in this Order are those imprinted by the Court's electronic docketing system located at the top, right-hand corner of the filing.
I. BACKGROUND
This lawsuit stems from a negligence claim against alleged federal employees, arising from the December 19, 2017, operation of a federal transport van carrying the Plaintiff to the federal courthouse for a hearing. (DE 28 at 1–2.) The transport resulted in physical injuries to the Plaintiff after the van was involved in a "single vehicle accident." (Id. ) Plaintiff has brought suit against the United States of America under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346. (Id. ) As discussed below, Plaintiff's FTCA claim turns on whether this Court lacks subject matter jurisdiction because the two employees who Plaintiff claims negligently operated the transport van were not, in fact, federal employees.
A. Compliance with Federal and Local Rules
Before summarizing the facts, the Court must address what has been properly disputed and what has not. In its Reply, Defendant argues Plaintiff's Response (DE 51) to its Motion is improper and should not be considered by the Court because it does not comply with the federal and local rules, failing to address "paragraph-by-paragraph each material fact asserted by the Defendant in its Statement of Material Facts." (DE 57 at 3–4.) Thus, Defendant argues since Plaintiff has not rebutted its statement of material facts, the Court may deem them admitted. (Id. )
It is well settled that any facts included in the moving party's statement of material facts that are not controverted in the non-moving party's response or sworn pleadings may be deemed admitted. See Fed. R. Civ. P. 56(c)(1)(A), (e)(2), (3). "A party asserting that a fact ... is genuinely disputed must support the assertion by: "(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations ... admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute...." See Fed. R. Civ. P. 56(c)(1)(A) – (B). Similarly, Southern District of Florida Local Rule 56.1(b)(2)(A) provides that the non-moving party's statement of material facts "shall correspond with the order and paragraph numbering format used by the movant, but it shall not repeat the text of the movant's paragraphs." Also, the non-moving party's statement of material facts must also utilize the word "disputed" or "undisputed" as "the very first word in each paragraph-by-paragraph response." See S.D. Fla. Loc. R. 56.1(b)(2)(B).
This Court's Order requiring Plaintiff to respond to Defendant's summary judgment motion, specifically directed that Plaintiff comply with Fed. R. Civ. P. 56.1. (DE 49.) The Order further indicated that the Plaintiff "may not rely solely on his Complaint and other initial pleadings ... but shall also respond with an affidavit, executed under penalty of perjury pursuant to 28 U.S.C. § 1746, together with any other documentation to show that there are material issues of fact which require a trial." (DE 49 ¶ 2.) Like any litigant, a pro se litigant is responsible for following court orders. Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989). Contrary to this Court's Order, Plaintiff did not separately file an affidavit until after Defendant filed its Reply, indicating these deficiencies. (See DE 57; DE 61.)
Plaintiff also failed to comply with the local rules because his Response does not contain individually numbered, paragraph-by-paragraph responses corresponding to the Defendant's enumerated statement of material facts. See Williams v. Slack, 438 F. App'x 848, 850 (11th Cir. 2011) (quoting Mann v. Taser Int'l, Inc. , 588 F.3d 1291, 1302 (11th Cir. 2009) (finding district court did not make "a clear error of judgment in applying Local Rule 56.1 to deem the defendants’ statement of material facts as admitted" because plaintiff's response did not "contain individually numbered, concise, non-argumentative responses corresponding to each of the movant's enumerated material facts.")). While Plaintiff attempted to correct this by filing his affidavit with individually numbered, paragraph-by-paragraph responses after the Motion was fully briefed. The Court must deem admitted the facts submitted by the Defendant that Plaintiff failed to properly rebut in his Response. Id.
Nonetheless, even where, as here, the Defendant's Statement of Material Facts are deemed admitted, this Court "must still review the movant's citations to the record to determine if there is, indeed, no genuine issue of material fact." Mann, 588 F.3d at 1303 (citing Reese v. Herbert , 527 F.3d 1253, 1269 (11th Cir. 2008) ). "Even in an unopposed motion, the moving party still bears the burden of identifying ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrates the absence of a genuine issue of material fact." Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ).
B. Relevant Material Facts
The material facts, viewed in the light most favorable to the Plaintiff, are as follows. On December 19, 2017, Plaintiff, an inmate in federal custody, was transported in a prisoner van to the Federal Detention Center ("FDC") in Miami, Florida, by two Allied Protective Services, Inc. ("APS") Guards, David Lipscomb and Jose Jordan. (DE 48 ¶¶ 12–14.) No U.S. Marshals or other federal employees were in the van, and the only van occupants were Plaintiff, another federal inmate, and the two APS Guards. (DE 48 at 3; DE 45-3 at 1.) The van collided with a short, fixed security pole when the driver made a right turn inside the underground parking garage at FDC Miami. (DE 48 ¶ 18; DE 45-2 at 2, ¶ 10.) Plaintiff was restrained with shackles and cuffs but not wearing a seatbelt. (DE 48 ¶ 22.) In light of the restraints and lack of safety belts, Plaintiff's body hit the inside of the van. (DE 46-1 at 3.) No police report was filed relating to the accident. (DE 48 at 3.)
Later that day, Plaintiff was evaluated by a nurse. His medical records state that he reported symptoms of "pain (only when I turn my neck to the side)." (DE 1-1 at 30.) On December 22, 2017, he received an x-ray, which was unremarkable. (DE 1-1 at 34.) Plaintiff submitted a claim for damages to the Bureau of Prisons on March 20, 2018. (DE 48 at 3.) The claim was later referred to the U.S. Marshals Service ("USMS"). (Id. )
APS was under contract (the "Contract") with the USMS to provide "qualified Armed Guards" (the "Guards") to "guard" and "transport/escort" federal inmates from their assigned detention facilities "to medical providers, medical facilities, or federal courthouses," as required by the USMS for the Southern District of Florida (the "SDFL"). (DE 48 ¶¶ 3–4, 8.) The APS Contract, number DJM-14-A35-V-0016, was effective January 27, 2014 through September 30, 2018. (DE 48 ¶ 2.) APS was responsible for providing equipment, training, and monitoring the APS Guards’ compliance with minimum competence and performance levels. (Id. at ¶ 5 (citing DE 45-1 ¶ 14).) APS was also required to maintain its own liability insurance pursuant to the APS Contract to cover any injury and damage to vehicles. (DE 48 at 2.)
USMS had no authority to discipline or fire APS Guards. (Id. ) Only APS could do so. (Id. ) To be compensated for services provided, APS would submit invoices to the USMS. (Id. ) Under the Contract, APS Guards are not employees of the Government and shall not represent themselves to be employees of the federal government. (Id. ) Neither the USMS nor the Government paid the APS Guards any salaries, nor did they provide "any pension, health benefits, injury compensation, or other related Federal employee benefits and services." (DE 45-1, Ex. 1 at 18, ¶ 3(e).)
II. LEGAL STANDARD
A motion for summary judgment looks to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Under this standard, "[o]nly disputes over facts that might affect the outcome of the suit under the governing [substantive] law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). And any such dispute is "genuine" only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
In evaluating a motion for summary judgment, the Court considers the evidence in the record, "including depositions, documents, electronically stored information, affidavits, or declarations, stipulations, ... admissions, interrogatory answers, or other materials...." Fed. R. Civ. P. 56(c)(1)(A) ; see also Grayson v. Warden, Comm'r, Ala. Dep't of Corr. , 869 F.3d 1204, 1220 (11th Cir. 2017) (quoting Celotex , 477 U.S. at 322, 106 S.Ct. 2548 ). The Court "must view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party, and must resolve all reasonable doubts about the facts in favor of the non-movant." Rioux v. City of Atlanta, 520 F.3d 1269, 1274 (11th Cir. 2008) (quotation marks and citations omitted); see also Furcron v. Mail Ctrs. Plus, LLC , 843 F.3d 1295, 1304 (11th Cir. 2016) (quoting FindWhat Inv. Grp. v. FindWhat.com , 658 F.3d 1282, 1307 (11th Cir. 2011) ). At the summary judgment stage, the Court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. 2505.
Finally, "[s]ummary judgment for defendant is appropriate when the plaintiff ‘fails to make a sufficient showing to establish the existence of an element essential to [his] case, and on which [he] will bear the burden at trial." Cleveland v. Pol'y Mgmt. Sys. Corp. , 526 U.S. 795, 805–06, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999) (quoting Celotex, 477 U.S. at 322, 106 S.Ct. 2548 ). Thus, "[i]f the non-movant ... fails to adduce evidence which would be sufficient ... to support a jury finding for the non-movant, summary judgment may be granted." Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1370 (11th Cir. 1997) (per curiam) (citation omitted).
III. DISCUSSION
A. FTCA Overview
Plaintiff brings suit under the FTCA, which provides federal district courts with exclusive subject matter jurisdiction over federal tort claims asserted against the United States. 28 U.S.C. §§ 1346(b)(1), 2671. Defendant argues that it is entitled to judgment as a matter of law because no jurisdiction exists under the FTCA as the transport van driver and passenger responsible for transporting Plaintiff were employees of APS and not Defendant. (DE 48.)
"[S]overeign immunity bars suit against the United States except to the extent that it consents to be sued." Means v. United States , 176 F.3d 1376, 1378 (11th Cir. 1999) (citing United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) ; and then Powers v. United States, 996 F.2d 1121, 1124 (11th Cir. 1993) ). "[S]tatutory waivers of sovereign immunity ‘are to be construed strictly in favor of the sovereign.’ " Id. (quoting McMahon v. United States, 342 U.S. 25, 27, 72 S.Ct. 17, 96 L.Ed. 26 (1951) ).
"The FTCA ‘was designed to provide redress for ordinary torts recognized by state law.’ " See Daniel v. U.S. Marshall Serv. , 188 F. App'x 954, 959 (11th Cir. 2006) (per curiam) (quoting Stone v. United States, 373 F.3d 1129, 1130 (11th Cir. 2004) (per curiam) (quotations omitted)). Under the FTCA, Congress has authorized a limited waiver of sovereign immunity and:
imposes civil liability on the United States "for injury or loss of property, or person injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, 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."
Duque v. United States, 216 F. App'x 830, 831 (11th Cir. 2007) (per curiam) (quoting 28 U.S.C. § 1346(b) ).
Under the FTCA, however, and as relevant here, "the alleged tortfeasor must be an employee of the government." See Duque, 216 F. App'x at 831 (citing Patterson & Wilder Constr. Co. v. United States, 226 F.3d 1269, 1273–74 (11th Cir. 2000) ). "The FTCA defines an ‘employee of the Government’ to include ‘officers or employees of any federal agency ... and persons acting on behalf of a federal agency in an official capacity.’ Whether an individual is an employee of the United States for the purposes of the FTCA is determined by federal law." Means, 176 F.3d at 1379 (quoting 28 U.S.C. § 2671 ) (affirming a grant of summary judgment). The Act explicitly excludes "any contractor with the United States" from the definition of "federal agency." 28 U.S.C. § 2671. "Since the United States can be sued only to the extent that it has waived its immunity, due regard must be given to the exceptions, including the independent contractor exception, to such waiver." United States v. Orleans , 425 U.S. 807, 814, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976).
Federal courts employ the "control test" to determine whether an individual is an employee for FTCA purposes. Means, 176 F.3d at 1379. "Under th[at] test, a person is a not an ‘employee of the government’ for FTCA purposes unless the government controls and supervises the day-to-day activities of the individual." Id. (citing Logue v. United States, 412 U.S. 521, 526–32, 93 S.Ct. 2215, 37 L.Ed.2d 121 (1973) ; and then Orleans, 425 U.S. at 815, 96 S.Ct. 1971 ). In other words, "[a] critical element in distinguishing an agency from a contractor is the power of the Federal Government ‘to control the detailed physical performance of the contractor.’ " 425 U.S. at 808, 96 S.Ct. 1971 (quoting Logue , 412 U.S. at 528, 93 S.Ct. 2215 ).
B. Analysis
Defendant United States moves for the summary judgment on the basis that the Court lacks jurisdiction because the van drivers were not federal employees. The FTCA authorizes suits against the United States for damages caused by the negligent or wrongful act or omission of an employee of the federal government. Thus, to survive the motion for summary judgment on this basis, Plaintiff must demonstrate that a genuine issue of material fact exists as to whether the injuries complained of resulted from the negligent operation of the transport van by a federal employee.
After review of the record and material facts, even when viewed in the light most favorable to the Plaintiff, Defendant has met its burden to show no genuine issue of material fact as to whether the transport van drivers were federal employees. Lipscomb and Jordan were not employed by the federal government but were instead contractors. Although their status as "contractors" in name, without more, is not dispositive, a review of the record demonstrates that they were not federal employees under the "control test" because neither the USMS nor the United States supervised their day-to-day operations. See Orleans, 425 U.S. at 815, 96 S.Ct. 1971 ; Logue, 412 U.S. at 528, 93 S.Ct. 2215.
"Employment" requires that the United States control and supervise the daily activity of those employees. See Means, 176 F.3d at 1379. In his Response, Plaintiff does not dispute that APS employees—as opposed to U.S. Marshals—drove the transport van on the day of the alleged incident. (DE 51 at 4.) Plaintiff maintains, however, that the APS Guards—the driver and passenger of the transport van—were "under orders by the Bureau of Prisons and/or the U.S. Marshall's [sic] Service to pick up Plaintiff [and] deliver him to the Miami-Dade County Correctional facility on December 19, 2017." (Id. at 5.) This assertion is insufficient. The guards were performing duties pursuant to a contract between APS and the USMS, which called for APS to provide APS Guards to escort and transport prisoners between federal facilities. The contract states:
Contractor personnel are not employees of the United States Government and shall not represent themselves to be
employees of the Federal Government. The Guard Services performed pursuant to this contract do not entitle the contractor's employees to pension, health benefits, injury compensation, or other related Federal employee benefits and services.
(DE 45-1 at 18.) The Contract later adds:
The contractor shall staff two (2) key personnel positions in support of this contract; namely, one (1) Guard Supervisor and one (1) Project Manager.
(DE 45-1 at 45.)
The APS Contract does not demonstrate sufficient government control to deem the APS Guards employees under the FTCA. Not only does the Contract specify that the Guards were not employees in any sense, it also outlines that an APS employee shall be designated to supervise the Guards in their duties under the Contract. (Id. ) Simply entering into contract with the Government does not make the contractor's employees government employees. Because the Guards were not employees of the United States, the United States cannot be held liable for negligence attributable to APS or its employees.
In a similar case, another court in this circuit concluded the same, rejecting arguments analogous to those made by Plaintiff here. In Brown v. United States , No. CV 118-139, 2019 WL 415330, at *2 (S.D. Ga. Feb. 1, 2019), report and recommendation adopted, No. CV 118-139, 2019 WL 938885 (S.D. Ga. Feb. 26, 2019), the plaintiff was a federal prisoner and being transported by Irwin County Detention Center ("ICDC") officers from the county jail to a holding facility. 2019 WL 415330, at *1. While exiting the transport van, Plaintiff fell and hit his face on the concrete, which caused his tooth to break and become lodged in his bottom lip. Id. One of the officers had moved out of the way, which allowed him to fall unassisted. Id. The court dismissed the plaintiff's claims for lack of jurisdiction. Although the plaintiff had alleged (1) the ICDC was responsible for transporting federal detainees from facility to facility per an Intergovernmental Service Agreement with the USMS, (2) the USMS directed who to transfer and where to transfer them, and (3) the USMS monitored federal prisoner movements by a tracking system, these facts were insufficient to bring the officers within the definition of federal employees under the FTCA.
Without the negligence of a federal employee, the United States cannot be liable for these claims under the FTCA. See Means, 176 F.3d at 1379–80 (holding that, because individuals who allegedly committed tortious acts were not government employees, court did not have jurisdiction over claims). Since the United States cannot be liable for the acts or omissions of the APS Guards, the Court does not have subject matter jurisdiction to permit this case to continue.
IV. CONCLUSION
Based upon the foregoing, it is ORDERED AND ADJUDGED that Defendant's Motion for Summary Judgment (DE 47) is GRANTED , and this case is DISMISSED without prejudice for lack of jurisdiction. All pending motions are DENIED AS MOOT . The Clerk is directed to CLOSE this case. The Court will enter Final Judgment for the Defendant separately pursuant to Rule 58 of the Federal Rules of Civil Procedure.
DONE AND ORDERED in Chambers in Miami, Florida on this 30th day of March, 2022.