Opinion
C. A. 21-2572-TMC-PJG
03-24-2022
Josand Farmer, Plaintiff, v. United States of America, Defendant.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE
Plaintiff Josand Farmer, a self-represented federal prisoner, filed this action pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680, 1346(b). Plaintiff files this action in forma pauperis under 28 U.S.C. § 1915 and § 1915A. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the Government's motion to dismiss. (ECF No. 32.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Farmer of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the Government's motion. (ECF No. 33.) Farmer filed a response in opposition to the motion, (ECF No. 40) and the Government replied, (ECF No. 44). Having reviewed the record presented and the applicable law, the court finds that the Government's motion should be granted in part and denied in part without prejudice to renew on a more fully developed record of jurisdictional facts.
BACKGROUND
The following allegations are taken as true for purposes of resolving the Government's motion to dismiss. This matter arises out of the Federal Bureau of Prison's (“BOP's”) response to the COVID-19 pandemic. Farmer is an inmate in the Federal Correctional Institution (“FCI”)
Williamsburg in Salters, South Carolina. Farmer contracted COVID-19 around December 22, 2020, which caused and continues to cause Farmer serious physical injury.
Farmer claims that despite laws and BOP policy requiring that protective measures be taken to protect inmates from contracting COVID-19, those laws and policies were not adhered to at FCI Williamsburg. For example, Farmer alleges that prison officers were tested after entering the prison, rather than outside the prison. Farmer also alleges that incoming inmates who tested positive before entering the prison were placed on Farmer's cell block. Farmer further alleges that quarantine procedures were not followed for inmates who returned from hospitalization for nonCOVID reasons. Farmer claims that as a direct result of these failures to follow BOP policy, he contracted COVID-19. Additionally, Farmer alleges that despite the BOP's inherent inability to follow COVID-19 guidelines issued by the Center for Disease Control and Prevention (“CDC”) in prisons, Farmer's requests for home confinement and compassionate release were denied.
Farmer pursued his remedies in the BOP, which were denied on July 26, 2021. Farmer filed this action on August 11, 2021, raising claims of negligence against the Government and seeking damages.
DISCUSSION
A. Rule 12(b)(1) Standard
Dismissal under Federal Rule of Civil Procedure 12(b)(1) examines whether the complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiff's burden to prove jurisdiction, and the court is to “regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
To resolve a jurisdictional challenge under Rule 12(b)(1), if the moving party contends that the complaint fails to allege facts upon which subject matter jurisdiction can be based, the court must assume that the facts alleged in the complaint are true. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). If the moving party contends the facts alleged are untrue, the court may resolve factual dispute by weighing evidence necessary to determine whether the court has jurisdiction. Id.
Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Erickson, 551 U.S. 89, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. The Government's Motion
The Government argues the court lacks subject matter jurisdiction over this action because Farmer's negligence claims are barred by the discretionary function exception to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680, 1346(b).
The FTCA provides for a limited waiver of the United States' sovereign immunity from suit by allowing a plaintiff to recover damages in a civil action for loss of property or personal injuries 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.” 28 U.S.C. § 1346(b)(1); see also Medina v. United States, 259 F.3d 220, 223 (4th Cir. 2001) (“The statute permits the United States to be held liable in tort in the same respect as a private person would be liable under the law of the place where the act occurred.”).
However, the FTCA does not waive the United States' sovereign immunity for:
[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or 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 purpose of this “discretionary function exception” is to protect the discretion of the executive branch to make policy judgments. Blanco Ayala v. United States, 982 F.3d 209, 214 (4th Cir. 2020); see also Wood v. United States, 845 F.3d 123, 128 (4th Cir. 2017) (“In short, the discretionary function exception 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.”). The burden is on the plaintiff to establish that the discretionary function exception does not foreclose his claim. Blanco Ayala, 982 F.3d at 214 (quoting Seaside Farm, Inc. v. United States, 842 F.3d 853, 857 (4th Cir. 2016)).
To determine whether the discretionary function exception applies, the court must undertake a two-step inquiry. Sanders v. United States, 937 F.3d 316, 328 (4th Cir. 2019); Rich v. United States, 811 F.3d 140, 145 (4th Cir. 2015). First, the court must determine whether the nature of the defendant's actions is discretionary-that is, whether the actions involve an element ofjudgment or choice. United States v. Gaubert, 499 U.S. 315, 322 (1991); Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536 (1988). The action is not considered discretionary if “a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow” because “the employee has no rightful option but to adhere to the directive.” Id. Second, if the actions are discretionary, the court must then determine whether the defendant's decision was made based on considerations of public policy. Gaubert, 499 U.S. at 322-23; Berkovitz, 486 U.S. at 536-37.
Here, the Government argues that the discretionary function exception applies because Farmer's claims are based on actions by prison officials that involved judgments and choices about the appropriate response to COVID-19, and that such decisions inherently involve balancing public policy considerations about safety, health, and resources. In response, Farmer argues that the first step of the discretionary function exception inquiry is not met here because the officials' actions were constrained by laws or policies meant to protect inmates at FCI Williamsburg, and therefore, the purportedly negligent officials lacked discretion to disregard those policies. Farmer specifies four laws or policies to which the officials allegedly failed to adhere.
First, Farmer argues that 18 U.S.C. § 4042(a), which provides for the general duties of the BOP, including the management of prisons and the safekeeping, care, and subsistence of all inmates, provides a nondiscretionary duty to protect inmates from COVID-19. But the statute itself provides no specific direction as to how the BOP is to fulfill those duties, much less how to prevent the spread of COVID-19. Courts have routinely refused to find that this statute mandates specific, non-discretionary conduct such that failure to adhere to it would preclude the application of the discretionary function exception. Palay v. United States, 349 F.3d 418, 428-29 (7th Cir. 2003) (collecting circuit courts of appeal cases holding the same); see also Rich v. United States, 811 F.3d 140, 145 (4th Cir. 2015) (stating the BOP “retains discretion regarding the implementation” of the “broad directives” in § 4042(a)). Therefore, to the extent Farmer's negligence claims are based on decisions by BOP officials pursuant to its general duties under 18 U.S.C. § 4042, the discretionary function exception would bar his claims.
Second, Farmer points to statutes allowing inmates to serve their remaining sentences under home confinement or have their sentences reduced. See 18 U.S.C. § 3582(c) (compassionate release or reduction of sentence); 18 U.S.C. § 3624(c) (home confinement); CARES Act, Pub. L. 116-136, Mar. 27, 2020, 134 Stat 281 (lengthening the allowable time for home confinement). However, each of those statutes or laws expressly leaves those decisions in the BOP's discretion after consideration of matters of public policy. See, e.g., 18 U.S.C. § 3624(c)(2) (“The authority under this subsection may be used to place a prisoner in home confinement ....”) (emphasis added); see also Crowe v. United States, 430 Fed.Appx. 484, 485 (6th Cir. 2011) (stating the BOP has broad discretion under 18 U.S.C. § 3582(c) to move for compassionate release); McCarson v. Reherman, C/A No. 2:20-1386-HMH, 2020 WL 2110770 (D.S.C. May 4, 2020) (noting that the CARES Act affords the BOP broad discretion in determining whether home confinement is appropriate for inmates). Therefore, to the extent Farmer's negligence claims are based on prison officials' failure to grant Farmer's requests for home confinement or compassionate release, those claims are barred by the discretionary function exception.
Inmates may now seek compassionate release from a federal district court after exhausting their administrative rights to appeal the BOP's failure to bring such a motion on the inmates' behalf. First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194.
Third, Farmer points to prison officials' inability to follow the CDC's COVID-19 Guidelines. However, as pointed out by the Government, CDC Guidelines are only advisory and do not mandate any particular conduct on the part of BOP officials. (Def.'s Mot., ECF No. 32 at 9-14.) Notably, Farmer does not allege that the BOP adopted any particular CDC Guidelines as its own policy. Therefore, any decision by prison officials not to follow CDC guidance is discretionary and barred by the discretionary function exception.
Fourth, Farmer points to memoranda from the BOP establishing “Action Plans” for federal prisons on how to manage the COVID-19 pandemic. The Government characterizes these memoranda as “non-binding guidance” whereas Farmer describes them as “non-discretionary protective measures” or “non-discretionary instructions” by the BOP. (Compare Pl.'s Resp., ECF No. 40 at 2; with Def.'s Reply, ECF No. 44 at 2.) On this record, the court is not able to determine whether these memoranda represent official policy of the BOP such that prison officials lacked the discretion to take different actions, whether the memoranda were mere guidance to federal prison officials, or whether FCI-Williamsburg adopted or adhered to the memoranda. Farmer attaches two examples of the memoranda to his response in opposition to the Government's motion to dismiss. (ECF No. 40-2.) The memoranda do not establish whether the protective measures described within them are mandatory policies, mere guidance, or something else. For instance, the memoranda describe themselves as “guidance” in one instance (ECF No. 40-2 at 1), but in other instances, appear to mandate prisons follow certain rules and create a system for compliance review (ECF No. 40-2 at 1-4, 6-8, 10). Nor does the record reflect whether the memoranda reflect actual policy adopted by FCI Williamsburg. Therefore, the record before the court is insufficiently developed to determine whether the discretionary function exception bars Farmer's claims that prison officials failed to follow FCI Williamsburg's policy to protect inmates from COVID-19.
RECOMMENDATION
Based on the foregoing, the court recommends the Government's motion to dismiss be granted in part and denied in part, without prejudice to its ability to raise the discretionary function exception argument on a more developed record regarding FCI Williamsburg's COVID-19 policy.
To the extent Farmer's negligence claims are based on prison officials' failure to follow other laws or policies cited in Farmer's Complaint, those claims are barred by the discretionary function exception to the FTCA, and any such claims should be dismissed for lack of subject matter jurisdiction.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, 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 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).