THIEME v. CARVAJAL

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

CHRISTOPHER THIEME, JACOB

SILVA, SIDDEEQ WILLIAMS, and

ROBERT SPEED, individually and on

behalf of all others similarly situated, Civil No. 21-682 (RMB-AMD)

Plaintiffs,

OPINION

v.

UNITED STATES OF AMERICA, et

al.,

Defendants.

APPEARANCES:

Lawrence S. Lustberg, Esq., pro bono Counsel

Gibbons P.C.

One Gateway Center

Newark, NJ 07102-5310

On behalf of Plaintiffs

On behalf of Plaintiffs

John Francis Basiak, Assistant United States Attorney

U.S. Attorney’s Office

402 E. State Street, Room 430

Trenton, NJ 08608

John T. Stinson, Jr., Assistant United States Attorney

Samantha R. D’Aversa, Assistant United States Attorney

U.S. Attorney’s Office

Mitchell H. Cohen Building & U.S. Courthouse

401 Market Street, 4th Floor

P.O. Box 2098

Camden, NJ 08101-2098

On behalf of Defendants

RENÉE MARIE BUMB, Chief United States District Judge

This matter comes before the Court upon supplemental briefing filed by the

parties, [Docket Nos. 52, 58], relating to a motion to dismiss filed by Defendants.1

The supplemental briefing concerns whether the discretionary function exception to

the Federal Tort Claims Act (“FTCA”) precludes Plaintiffs’ FTCA claims for

Defendants’ alleged failures to regulate the spread of COVID-19 at FCI Fort Dix

Prison. [See Docket No. 49 at 18, 20 (“Opinion”); see also Docket No. 50 (ordering

supplemental briefing).] Plaintiff argues that mandatory policies and procedures

promulgated by the Federal Bureau of Prisons (“BOP”) defeat Defendants’

discretionary function exception defense and that, even if BOP’s policies and

procedures were not mandatory, Defendants cannot hide behind the discretionary

function exception where Plaintiffs have plausibly alleged a violation of the Eighth

Amendment to the Constitution of the United States. Defendants disagree. For the

reasons set forth below, the Court DENIES, in part, without prejudice, Defendants’

motion to dismiss the FTCA claims.

1 The Court refers to the parties’ submissions as follows: Defendants’ Memorandum

of Law in Support of its Motion to Dismiss the Second Amended Complaint, Docket

No. 38-1 (“Defs.’ Br.”); Plaintiffs’ Memorandum of Law in Opposition to

Defendants’ Motion to Dismiss the Second Amended Complaint, Docket No. 42

(“Pls.’ Br.”); Plaintiffs’ Supplemental Memorandum of Law in Further Opposition to

Defendant’s Motion to Dismiss the Second Amended Complaint, Docket No. 52

(“Pls.’ Supp. Br.”); Defendants’ Supplemental Memorandum of Law in Further

Support of its Motion to Dismiss the Second Amended Complaint, Docket No. 58

(“Defs.’ Supp. Br.”).

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs’ Second Amended Complaint alleges widescale mismanagement at

Federal Correctional Institution (“FCI”) Fort Dix Prison by Defendants—prison

administrators—related to their handling of the COVID-19 pandemic. [See Second

Amended Complaint (“SAC”), Docket No. 16 ¶¶ 3–5.] Plaintiffs allege that

Defendants’ mismanagement led to mass COVID-19 outbreaks, resulting in

thousands of prisoners contracting the virus and becoming sick. [SAC ¶ 3.] Plaintiffs’

allegations primarily fall into two buckets—that Defendants recklessly or negligently

exposed FCI Fort Dix prisoners to unacceptable health risks by (i) transferring

incarcerated individuals from FCI Elkton in Ohio to FCI Fort Dix in September and

October 2020, [SAC ¶¶ 96–136]; and (ii) transferring incarcerated individuals to the

East Side portion of FCI Fort Dix in September and October 2020, [id. ¶¶ 137–64].2

Plaintiffs brought claims under the FTCA and for monetary and injunctive relief

under the Eighth Amendment on behalf of themselves and a proposed class. [Id. ¶¶

224–34, 235–56.] The factual allegations underlying Plaintiffs’ FTCA claims, and

Eighth Amendment claims are the same. [Compare SAC ¶¶ 224–34 (Eighth

Amendment claims), with id. ¶¶ 235–56 (FTCA claims).] Defendants moved to

dismiss Plaintiffs’ FTCA claims under Federal Rule of Civil Procedure 12(b)(1) and

2 Plaintiffs also alleged failures to provide adequate medical care to incarcerated

individuals who contracted COVID-19. [SAC ¶¶ 165–91.] The Court dismissed

Plaintiffs’ Eighth Amendment claims for injunctive relief insofar as they were

premised on failures to provide adequate medical care. [Opinion at 40.]

moved to dismiss Plaintiffs’ Eighth Amendment claim under Federal Rule of Civil

Procedure 12(b)(6).

The Court granted in part and denied in part Defendants’ motion to dismiss. It

dismissed Plaintiffs’ Eighth Amendment damages claim brought under Bivens v. Six

Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), [see Opinion 26–35], but it found

that Plaintiffs could state a claim under Rule 12(b)(6) for equitable and injunctive

relief under the Eighth Amendment because the Court could not “conclude that

Defendants responded reasonably to the serious risk to inmate health,” [id. at 42].

The Court found, however, that further briefing was needed to determine if the

FTCA’s discretionary function exception immunized Defendants’ conduct from

challenge. [Opinion at 17–18.]3 The Court noted that multiple iterations of BOP’s

policies and procedures, including its Coronavirus Phase Nine Action Plan, [see

Docket No. 52-1, Certification of Lawrence S. Lustberg, Ex. 1 (“Lustberg Certif.”)],

contained both mandatory terms, to which the discretionary function exception

would not apply, as well as discretionary terms to which the exception would apply.

[Opinion at 17.] The Court requested that Plaintiffs identify in their supplemental

briefing “the mandatory language from a BOP or FCI Fort Dix policy or procedure

that supports specific allegation[s] in the SAC.” [Id. at 18.]

3 The Court did decide two issues related to Plaintiffs’ FTCA claims. First, it

dismissed Plaintiff Speed’s FTCA claims for failure to exhaust his administrative

remedies. [Opinion at 10.] Second, it found that the discretionary function exception

precluded negligence claims based on BOP’s discretionary decisions to release (or

not release) prisoners to home confinement under the CARES Act. [Opinion at 17.]

As to BOP’s policies and procedures that were clearly discretionary in nature,

the Court explained that the analysis must continue because the discretionary

function exception does not apply where a plaintiff alleges that a federal defendant’s

conduct violates the U.S. Constitution. [Id. at 20.] Because Plaintiffs alleged that

Defendants’ conduct violated the Eighth Amendment, the Court also reserved

decision on the application of the discretionary function exception pending further

briefing on how Plaintiffs’ Eighth Amendment claims interacted with their FTCA

claims. [Id.]

II. LEGAL STANDARD

Defendants moved to dismiss Plaintiffs’ FTCA claims under Rule 12(b)(1) for

lack of subject matter jurisdiction. [Defs.’ Br. at 1, 21–22.] A party may challenge

subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) through a

facial attack or a factual attack. Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016).

In a facial attack, a party may not dispute the facts alleged in the complaint, and the

court must accept the alleged facts as true. Id. In a factual attack, a plaintiff’s

allegations are not entitled to a presumption of truth and the court may weigh and

consider evidence outside the pleadings. Id. In defending a factual attack to

jurisdiction, the plaintiff bears the burden of proving facts supporting subject matter

jurisdiction by a preponderance of the evidence. Id. The parties agree that

Defendants’ 12(b)(1) motion is a factual attack to the Court’s subject matter

jurisdiction. [Defs.’ Supp. Br. at 1; Pl.’s Supp. Br. at 5.]

The Third Circuit has cautioned against allowing a Rule 12(b)(1) motion to

dismiss for lack of subject matter jurisdiction to turn into an attack on the merits.

Davis, 824 F.3d at 348 (collecting cases). But in a Rule 12(b)(1) factual attack under

the FTCA, “the split between jurisdiction and the merits is not always clear.” CNA v.

United States, 535 F.3d 132, 141 (3d Cir. 2008), as amended (Sept. 29, 2008). “There

will frequently be overlapping issues of proof, causing the jurisdictional challenge to

be intertwined with the merits.” S.R.P. ex rel. Abunabba v. United States, 676 F.3d 329,

344 (3d Cir. 2012). This creates a special problem for plaintiffs. On a motion to

dismiss under Rule 12(b)(6), the defendant bears the burden to show that the plaintiff

has not stated a claim, with the Court accepting all well-pleaded allegations in the

complaint as true. But a Rule 12(b)(1) motion inverts the burden of persuasion with

plaintiff required to demonstrate that the court has subject matter jurisdiction. Davis,

824 F.3d at 349. And on a factual attack on jurisdiction, Rule 12(b)(1) “allows a

district court to make findings of fact that contradict the allegations in the complaint,

at the very outset of litigation, before any discovery has taken place.” Id. at 349 n.18.

Thus, where, as here, merits issues and jurisdictional issues overlap, district courts

must take care to “demand less in the way of jurisdictional proof than would be

appropriate at a trial stage.” Id. at 35 (quoting Mortensen v. First Fed. Sav. & Loan

Ass’n, 549 F.2d 884, 891 (3d Cir. 1977).4

4 The Court notes that the overlap in jurisdiction and merits in this case is not

between application of discretionary function exception and Plaintiffs’ state law

negligence claims under the FTCA. Rather, it is between the application of

III. ANALYSIS

A. The Discretionary Function Exception

“When the United States consents to be sued, the terms of its wavier of

sovereign immunity define the extent of the court’s jurisdiction.” United States v.

Mottaz, 476 U.S. 834, 841 (1986). The FTCA is a limited waiver of the federal

government’s sovereign immunity for the negligent actions of its employees. Berkovitz

v. United States, 486 U.S. 531, 535 (1988); 28 U.S.C. §§ 2671–2680. “That waiver,

however, is subject to certain exceptions, including the discretionary function

exception, at issue in this case.” Xi v. Haugen, 68 F.4th 824, 837 (3d Cir. 2023). The

discretionary function exception claws back federal sovereign immunity for “[a]ny

claim ... based upon the exercise or performance or the failure to exercise or perform

a discretionary function or duty ... whether or not the discretion involved be abused.”

28 U.S.C. § 2680(a). The exception “marks the boundary between Congress’

willingness to impose tort liability upon the United States and its desire to protect

certain governmental activities from exposure to suit by private individuals.” United

discretionary function exception and Plaintiffs’ Eighth Amendment claims, which are

separate from Plaintiffs’ FTCA claims. The Court does not believe that this nuance

matters in the analysis because the conduct Plaintiffs allege was negligent under the

FTCA is the same conduct that Plaintiff alleges was a violation of the Eighth

Amendment. [Compare SAC ¶¶ 224–34 (Eighth Amendment claim), with id. ¶¶ 235–

56 (FTCA claims).] There is thus a clear overlap between the jurisdictional and

merits analysis. See Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 892 (3d

Cir. 1977) (holding that dismissal under Rule 12(b)(1) would be “unusual” when the

facts necessary to succeed on the merits are at least in part the same as must be

alleged or proven to withstand jurisdictional attacks)).

States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808

(1984).

The Supreme Court in United States v. Gaubert established a two-part test for

determining if the discretionary function exception applies. “First, a court must

determine whether the act involves an element of judgment or choice.” United States

v. Gaubert, 499 U.S. 315, 323 (1991). If a “federal statute, regulation, or policy

specifically prescribes a course of action for an employee to follow,” the exception

does not apply because “the employee has no rightful option but to adhere to the

directive.” Berkovitz, 486 U.S. at 536. If no specific course of action is prescribed, the

court proceeds to the second step to determine “whether that judgment is of the kind

that the discretionary function exception was designed to shield.” Id. at 322.

“Because the purpose of the exception is to prevent judicial ‘second-guessing’ of

legislative and administrative decisions grounded in social, economic, and political

policy ... the exception protects only governmental actions and decisions based on

considerations of public policy.” Gaubert, 499 U.S. at 323. Defendants bear the

burden of establishing both parts of the discretionary function exception. S.R.P. ex rel.

Abunabba, 676 F.3d at 333.5

5 The Court is careful not to conflate the government’s burden of establishing

applicability of the discretionary function exception with the standard of review

under Rule 12(b)(1). It is the plausibility of Plaintiffs’ Eighth Amendment claims

viewed through the lens of Rule 12(b)(1) that determines if the discretionary function

exception applies at all.

Even if the government can show that both parts of the discretionary function

exception apply, there is an additional step. The Court must also determine whether

the government’s conduct violated the U.S. Constitution in carrying out (or failing to

carry out) any discretionary policies. The Third Circuit has recently clarified that

“conduct cannot be discretionary if it violates the Constitution” because ‘[f]ederal

officials do not possess discretion to violate constitutional rights.’” Xi, 68 F.4th at

388 (quoting U.S. Fid. & Guar. Co. v. United States, 837 F.2d 116, 120 (3d Cir. 1988)).

In so clarifying, the Third Circuit went on to hold that the discretionary function

exception “does not apply to any conduct that violates the Constitution regardless of

whether the constitutional rights at issue were clearly established.” 68 F.4th at 839.

In an earlier decision, Rinaldi v. United States, the Third Circuit held that the

discretionary function exception applied to a petitioner’s claim that the government

“forc[ed] him to reside with an inmate that [the BOP] knew, or should have known,

had expressed an intention to kill [him].” 904 F.3d 257, 272 (3d Cir. 2018)

(alterations in original). In a footnote, and without so holding, the court seemed to

suggest that petitioner could not assert a constitutional violation as a basis to

preclude application of the discretionary function exception. Id. at 272 n.15; see also

Shahen v. United States, 2023 WL 1805828, at *8 (E.D. Pa. Feb. 6, 2023) (holding,

pre-Xi, that plaintiff could not overcome the discretionary function exception to the

FTCA by reference to alleged constitutional violations of his Eighth Amendment

rights). The Third Circuit’s recent holding in Xi, however, is clear: Plaintiffs can use

the Constitution as a sword to the government’s discretionary function exception

shield. The Court does not understand Defendants to argue otherwise.6

B. Mandatory and Discretionary BOP Policies

Plaintiffs identify four arenas of BOP’s COVID-19 response that prescribed a

mandatory course of conduct that Defendants had to obey: (1) testing and

quarantining of transferees from FCI Elkton; (2) alleged work requirements for

allegedly infected inmates; (3) mask wearing for BOP staff; and (4) screening and

testing for BOP staff. The Court addresses each in turn finding that the discretionary

function exception applies to all but one policy identified by Plaintiffs.

1. Testing and Quarantining of Inmates from FCI Elkton

First, Plaintiffs argue that Defendants’ failure to test and quarantine FCI

Elkton transferees violated mandatory provisions of BOP’s Phase Nine Action Plan,

as augmented by the BOP’s Modified Operations Plan. Plaintiffs allege that between

late September to late October 2020, Defendants transferred four waves of

individuals incarcerated at FCI Elkton in Ohio to FCI Fort Dix “without an effective

6 Citing an unpublished case from the Fifth Circuit, Defendants suggest that for the

discretionary function exception to be inapplicable because of a purported violation

of the Constitution, “the [constitutional] provision at issue must [] set forth a clear

and specific course of action, which the Eighth Amendment does not.” [Defs.’ Supp.

Br. at 18 (citing Garza v. United States, 161 F. App’x 341, 343 (5th Cir. 2005)).] The

Court is not persuaded that a constitutional provision must “set forth a clear and

specific course of action” to defeat the discretionary function exception. That is

especially so post-Xi, which only requires a plaintiff at the motion to dismiss stage to

plausibly allege a constitutional violation to negate a discretionary function

exception defense. Xi, 68 F.4th at 840; see also C.M. v. United States, 2023 WL

3261612, at *42 (W.D. Tex. May 4, 2023) (questioning the persuasive value of

Garza).

plan in place to avoid spreading the virus from transferring inmates to staff.” [SAC

¶ 97.] Specifically, Plaintiffs allege that in “direct violation of mandatory BOP

policies and procedures,” [Pls.’ Supp. Br. at 12], FCI Elkton transferees were not

properly screened and tested for COVID-19 and instead, were “almost immediately

mingled with the prisoner population,” [SAC ¶ 99] and were forced by Defendants to

“move between floors in their units” which resulted in prisoners who had previously

tested negative for the virus becoming “quickly infected and began testing positive,”

[id. ¶ 113]. Compounding these violations of a mandatory policy, Plaintiffs further

allege that Defendants—despite the surge in COVID-19 cases—continued to order

transfers from FCI Elkton, only requesting a transfer moratorium after the fourth

scheduled transferred was complete. [Id. ¶ 109–11.]

The Court finds that the Phase Nine Action Plan, despite containing some

mandatory-sounding terms, does not prescribe a specific course of action to bar

application of the discretionary function exception. Instead, the Phase Nine Action

Plan is a self-described “guidance” document outlining best practices and general

principles—including related to testing and quarantining—for prisons to consider in

reacting to a rapidly evolving pandemic. [Lustberg Certif., Ex. 1 at 2 (“This

memorandum describes [BOP’s COVID-19] Phase Nine Action Plan, which includes

an extension of previously disseminated guidance along with new measures to

implement in the management of the pandemic.”).] For example, even though the

Phase Nine Action Plan states that “[a]ll inmates entering an institution will require

enhanced intake procedures,” [Lustberg Certif., Ex. 1 at 7 (emphasis added)], that

mandatory language does not eliminate the discretion prisons are afforded to

establish such enhanced intake procedures. See Holbrook v. United States, 673 F.3d

341, 348 (4th Cir. 2012) (“[T]he existence of some mandatory language does not

eliminate discretion when the broader goals sought to be achieved necessarily

involve an element of discretion.”). Indeed, the bulleted list following that instruction

does not describe what enhanced intake procedures must be. Rather, the bullets are

replete with qualifying language indicating “recommended” “best practice[s]” of

what prisons should “ideally” or “should be” doing with respect to the intake of

inmates during the pandemic. [See, e.g., Lustberg Certif., Ex. 1 at 7 (recommending

that new inmates “should be screened for COVID-19,” that “[i]deally, inmates should

be quarantined or isolated in single-cells,” and that “[w]hen cohorting is necessary,

the best practice is to keep cohorted inmates together”).

Other relevant BOP documents confirm the discretion inherent in testing and

quarantine procedures. “Module 3: Screening & Testing” to BOP’s COVID-19

Pandemic Response Plan, [Lustberg Certif., Ex. 12 at 4–7], states that the

“indications for testing” include “both asymptomatic and symptomatic inmates with

compelling reasons or priorities for testing,” [id. at 4]. And “Module 4: Medical

Isolation and Quarantine” to BOP’s COVID-19 Pandemic Response Plan states that

“[t]esting for release from COVID-19 medical isolation [or quarantine] is not

recommended in most cases” and that BOP’s “preference” is a time-based 14-day

isolation/quarantine followed by a test out. [See Lustberg Certif., Ex. 13 at 10–12

(emphases added).] Taken together with the Phase Nine Action Plan, Defendants

can meet their burden of establishing that that the discretionary function exception

applies to testing and quarantining procedures. See Sanford v. United States, 2022 WL

17750754, at *3 –4 (D.S.C. Oct. 18, 2022), R&R adopted, 2022 WL 17369375 (D.S.C.

Dec. 2, 2022), aff’d, 2023 WL 4181333 (4th Cir. June 26, 2023) (discretionary

function exception applied to BOP’s COVID-19 policies and procedures which,

despite some mandatory language, constituted “guidance,” “general principles,” or

“recommended approaches” rather than a mandatory course of action for an

employee to follow).

2. Work Requirements for Allegedly Infected Inmates

Second, Plaintiffs allege that prisoners were forced to work jobs at FCI Fort

Dix while infected with COVID-19 in violation of BOP Program Statement 6190.04

(Infectious Disease Management) (June 3, 2014) (“Program Statement 6190.04”).

[Pls.’ Supp. Br. at 19–20.] Program Statement 6190.04 provides that “[i]nmates with

infectious diseases that are transmitted through casual contact will be prohibited

from work assignments in any area, until fully evaluated by a health care provider.”

[Lustberg Certif., Ex. 6 at 12.] But Plaintiffs allegations regarding inmates returning

to work while infected with COVID-19 ignores the fact that, consistent with Program

Statement 6190.04, such inmates, as alleged were evaluated and cleared to work. [See,

e.g., SAC ¶ 131 (“[P]risoners in unit 5812 were forced to begin working in the food

service, laundry, and the commissary almost as soon as they were declared

recovered.”). And as a general matter, BOP’s COVID-19-specific guidance did not

direct any specific restrictions on work other than recommending the medical

evaluation of infected persons. [See, e.g., Lustberg Certif., Ex. 12 at 23; id., Ex. 13 at

10.] Thus, Plaintiffs’ arguments concerning inmate work requirements do not defeat

Defendants’ discretionary function defense.

3. Mask Wearing for BOP Staff

Third, Plaintiffs allege that “prison staff routinely failed to wear masks or

other protective equipment,” [SAC ¶ 86], despite a BOP memorandum, effective

August 27, 2020, entitled “Mandatory Use of Face Coverings for BOP Staff” (the

“Mask Memorandum”). [Lustberg Certif., Ex. 7.] The Mask Memorandum provides

that “all BOP staff will be required to wear face coverings while at work when social

distancing is not possible and in common areas” and that staff “may remove a face

covering when working in a private office, cubicle, or workspace where at least six

feet of social distance can be maintained.” [Id. at 1.] Any staff failing to properly

wear a face covering would be “provided a direct order to wear the face covering”

and if he or she failed to comply, the staff member would be “referred to the Office of

Internal Affairs for misconduct.” [Id. at 2.] The Court finds that the Mask

Memorandum clearly outlines a course of conduct that could not be disobeyed by

prison staff. It is a mandatory policy to which the discretionary function exception

does not apply.

Defendants’ own evidence confirms the mandatory nature of the Mask

Memorandum. In a Declaration submitted in support of its Motion to Dismiss,

Defendants aver that “[a]ll staff and inmates were, and continued to be, issued an

appropriate face covering and mandated to wear the face covering when in public

areas where social distancing cannot be achieved.” [See Docket No. 38-3,

Declaration of James Reiser ¶ 6(c) (“Reiser Decl.”).] Nonetheless, Defendants argue

that because the Mask Memorandum “offers a blanket exemption … when staff are

in a workspace where at least six feet of social distance can be maintained,” [Defs.’

Supp. Br. at 11], the Mask Memorandum is covered by the discretionary function

exception. But carve-outs and exemptions do not transform an otherwise mandatory

policy into a discretionary one. Even mandatory policies require some degree of

discretion in determining whether they apply at all. The course of conduct required

by the Mask Memorandum was clear: wear a mask or face consequences. The

discretionary function exception will not shield against Plaintiffs’ FTCA claims

related to masking. [See FAC ¶¶ 50, 70, 86, 188.]

4. Screening and Testing for BOP Staff

Finally, Plaintiffs argue that Defendants did not screen and test FCI Fort Dix

staff in contravention of BOP’s allegedly mandatory “Modified Operations Plan.”

[Lustberg Certif., Ex. 4 at 1–2.] The Modified Operations Plan states that “[i]n

addition to screening and testing inmates, temperature checks and COVID-19

screening is being conducted for staff, contractors, and other visitors to our

correctional institutions, with those who register a temperature of 100.4° Fahrenheit

or higher denied access to the building.” [Id.] But as Defendants correctly note, the

only thing this language does is describe BOP’s current actions; it mandates nothing

regarding staff testing. [Defs.’ Br. at 12.] The discretionary function exception

therefore bars Plaintiffs’ FTCA claims as they relate to screening and testing of BOP

staff.

C. Discovery is Required to Determine Whether Plaintiffs Can

Plausibly Allege a Violation of the Eighth Amendment Such

that the Discretionary Function Exception Does Not Apply

The Court finds that discovery is required to determine whether Plaintiffs can

plausibly allege a violation of the Eighth Amendment such that the discretionary

function exception would not apply at all. In so finding, the Court does not rely on

its earlier ruling that Plaintiffs could plausibly state an Eighth Amendment claim for

equitable and injunctive relief under Rule 12(b)(6). [Opinion at 42.] As Defendants

note, the Court, in reaching that conclusion, did not consider evidence outside of the

pleadings and accepted all of Plaintiffs’ allegations as true. [Id.] Here, Defendants’

factual attack on the Court’s jurisdiction under Rule 12(b)(1) means that the Court

can and will consider the documents submitted outside of the pleadings. Xi, 68 F.4th

at 840.7

7 The Court is mindful that in Xi, the parties apparently agreed that the federal

defendants’ discretionary function exception defense was a facial rather than factual

attack on jurisdiction, Xi v. Haugen, No. 17-02132, ECF No. 34 at 7, and in

evaluating whether the plaintiff could defeat the discretionary function exception by

alleging a constitutional violation, the Third Circuit “accept[ed] the facts alleged in

the Complaint as true and dr[e]w all inferences in Xi’s favor.” Xi, 68 F.4th at 832.

But the standard articulated in Xi appears to be the same whether the challenge is

under Rule 12(b)(6) or a factual attack to subject matter jurisdiction under Rule

12(b)(1)—“[a]t the motion-to-dismiss stage, all a plaintiff must do to negate the

discretionary function exception is plausibly allege a constitutional violation.” Xi, 68

F.4th at 840. The Court thus undertakes that exercise through the lens of a factual

attack to subject matter jurisdiction under Rule 12(b)(1).

1. Standard Under the Eighth Amendment

Prison officials have a duty under the Eighth Amendment to provide humane

conditions of confinement. Farmer v. Brennan, 511 U.S. 825, 832 (1994). To state an

Eighth Amendment conditions of confinement claim against prison officials, a

plaintiff must meet two requirements, one objective, and one subjective. First, under

the objective prong, a prisoner-plaintiff must show that the depravation of humane

conditions was “sufficiently serious” resulting in the denial of “the minimal civilized

measure of life’s necessities.” Id. at 834 (first quoting Wilson v. Seiter, 501 U.S. 294,

298 (1991), and then quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). Second,

under the subjective prong, a prisoner-plaintiff must show that the named prison

officials had a “sufficiently culpable state of mind.” Farmer, 511 U.S. at 834 (quoting

Wilson, 501 U.S. at 297). The requisite state of mind is one of “deliberate indifference

to inmate health or safety” that the defendant prison official must have known about

and disregarded. Farmer, 511 U.S. at 834; Jones v. Ellis, 2021 WL 5015921, at *3

(D.N.J. Oct. 28, 2021) (“[A] detainee asserting deliberate indifference based on

exposure to COVID-19 must [] establish that the Defendant had the requisite mental

state, which is akin to recklessness.”). “[P]rison officials who actually knew of a

substantial risk to inmate health or safety may be found free from liability … even if

the harm ultimately was not averted.” Farmer, 511 U.S. at 844. But their response to

that substantial risk must be reasonable. Id.

2. Plaintiffs Have Plausibly Alleged Objectively Serious

Deprivations to their Health and Safety

Both the parties and the Court recognize the seriousness of the threat posed by

COVID-19. The virus—especially during the relevant time-period alleged pre-

vaccine—has been well-known to cause a substantial risk of serious harm including

hospitalization or death. In crowded prison settings, those substantial risks are more

pronounced as the virus spreads rapidly in close quarters from person to person. [See

SAC ¶¶ 34–36; Helling v. McKinney, 509 U.S. 25, 33 (1993) (housing in which

incarcerated persons “were crowded into cells [with others who] had infectious

maladies such as hepatitis and venereal disease … was one of the prison conditions

for which the Eighth Amendment required a remedy”).] The Court thus finds that

Plaintiffs allegations are plausible under the objective prong of the Eighth

Amendment. See Wilson v. Williams, 961 F.3d 829, 839–40 (6th Cir. 2020) (finding

objective prong of Eighth Amendment satisfied given the transmissibility of COVID-

19 in prison as well as the seriousness of the virus’s symptoms).

3. Discovery is Needed Regarding Whether Plaintiffs Have

Plausibly Alleged That Defendants Were Deliberately

Indifferent to Objectively Serious Conditions of Confinement

Affecting Prisoner Health and Safety

The closer question is whether Plaintiffs have plausibly alleged that

Defendants were deliberately indifferent to the objectively serious harm COVID

presented. BOP and Defendants were no doubt “aware of and understood the

potential risk of serious harm to inmates at Elkton through exposure to the COVID-

19 virus.” Wilson, 961 F.3d at 840. The key issue, considering all evidence properly

before the Court on a Rule 12(b)(1) motion to dismiss, is whether Defendants

responded reasonably to that risk. Id. The Court focuses on the primary factual

circumstance which it concludes Plaintiffs can plausibly allege a constitutional

violation—the management of the FCI Elkton transfers. [SAC ¶¶ 96–136.]8

Plaintiffs do not dispute that each of the FCI Elkton transferees were tested

upon arrival at FCI Fort Dix. Rather, they allege that FCI Elkton transferees who

tested negative upon arrival at FCI Fort Dix were immediately mingled with the

general prisoner population at FCI Fort Dix as opposed to being strictly held in a

separate quarantine. [Id. ¶ 99.] Compounding that error, Plaintiffs allege that

Defendants (i) “forced prisoners, including COVID-19 negative and positive

prisoners, to move between floors in their units, as a result of which prisoners who

had previously tested negative for the virus were quickly infected and began testing

positive shortly thereafter,” and (ii) did not request a moratorium on further prison

transfers until the final FCI Elkton transfer was complete. [Id. ¶¶ 110–19.]

8 Plaintiffs’ Eighth Amendment allegations regarding the East Side outbreak stems

from the FCI Elkton transfer allegations. What Plaintiffs allege was reckless about

transferring prisoners within units on the East Side of the prison and between the

West Side of the prison and the East Side of the prison, is that transfers occurred

during a COVID-19 outbreak, allegedly started because of Defendants’ failures in

handling the FCI Elkton transfers. [SAC ¶¶ 138 (“[J]ust one day after transferring six

COVID-19 positive prisoners into Fort Dix, Defendants transferred several people

into unit 5711, which is on the East Side of the facility. Meanwhile, Defendants

Ortiz and Kodger continued to transfer prisoners between units on the East Side,

including transferring prisoners from unit 5703, the quarantine unit, into other

units.”).] Thus, the parties need to focus in discovery on Plaintiffs’ allegations related

to the FCI Elkton transfers.

Plaintiffs’ evidence that Defendants recklessly failed to impose a quarantine

following transfers from FCI Elkton—which was experiencing a COVID-19 outbreak

of its own at the time of the transfers—is largely inferential. They cite evidence that

COVID-19 cases at FCI Fort Dix dramatically spiked during Fall 2020, [Lustberg

Certif., Ex. 8 at Ex. 6], and attribute that spike to Defendants’ alleged recklessness in

carrying out intake and transfers procedures. Plaintiffs also point to matters of public

record and evidence submitted in other cases showing that there were no cases of

COVID-19 just prior to first FCI Elkton transfer and that, with each transfer,

COVID-19 cases climbed. [SAC ¶¶ 102–05 (citing, e.g. United States v. Rodriguez, 16-

CR-07 (AJN) (S.D.N.Y. filed November 20, 2020), Docket No. 59, Declaration of

Kimberly Kodger ¶ 9–10).]

Defendants dispute Plaintiffs’ allegations and offer their own evidence in

support of dismissal. In a declaration submitted by a BOP case management

coordinator, Defendants aver that once a FCI Elkton-transferee tested positive for

COVID-19, they would be sent to individual isolation but if they tested negative for

COVID-19, the prisoner would be moved to a quarantine floor and not released the

general prison population. [See Reiser Decl. ¶¶ 27–28.] Additionally, a memorandum

sent from Defendant Ortiz to Defendant English suggests that the spike in COVID-

19 cases was attributable, not due to intermixing between FCI Elkton-transferees and

the general FCI Fort Dix population, but from FCI Fort Dix prison staff that may

have brought in the virus from the outside the facility and subsequentially passed it

onto FCI Fort Dix inmates. [Lustberg Certif., Ex. 8 at Ex. 6.]

The Court finds that, at this stage, the evidence submitted is inconclusive for

purposes of establishing the Court’s subject matter jurisdiction over Plaintiffs’ FTCA

claims through the Eighth Amendment. Plaintiffs allege one thing, Defendants aver

another. If Plaintiffs are right that FCI Elkton transferees were immediately mingled

with the general prisoner population without any real quarantine and Defendants

continued to order FCI Elkton transfers nonetheless, that could support a finding the

Defendants acted recklessly in the face of a serious risk of harm. But if Defendants

are right that they properly sorted transferees into isolation and quarantine and tested

transferees in and out of isolation and quarantine, Defendants would not be

deliberately indifferent under the Eighth Amendment.9

It is Plaintiffs’ burden to establish subject matter jurisdiction, but because the

Eighth Amendment allegations overlap with issues of FTCA jurisdiction, the Court

must be careful to not prematurely grant Defendants’ Rule 12(b)(1) motion and will

not do so here given questions regarding Plaintiffs’ constitutional defense to the

discretionary function exception. S.R.P. ex rel. Abunabba, 676 F.3d at 344 (“By

requiring less of a factual showing than would be required to succeed at trial, [we]

9 And the Court notes that occasional negligence in carrying out such procedures

would not be enough to support a finding of deliberate indifference. See Ross v.

Russell, 2022 WL 767093, at *11 (W.D. Va. Mar. 14, 2022) (reasoning that even if

inmates “were not always properly quarantined, properly separated, or properly

tested, and equipment and cleaning supplies were not always readily available,”

those allegations viewed “in conjunction with all steps that the prison officials did

take to respond to the known risk” did not “reflect that any of the defendants in

charge of creating or implementing overall policies were deliberately indifferent”).

ensure that [district courts] do not prematurely grant Rule 12(b)(1) motions to

dismiss claims in which jurisdiction is intertwined with the merits and could be

established, along with the merits, given the benefit of discovery.”). Accordingly, the

Court will deny Defendants’ motion to dismiss the FTCA claims, in part, without

prejudice. The Court will revisit the question of its jurisdiction after the completion

of relevant and expedited discovery focusing on the FCI Elkton transfers. See 5B

Wright & Miller, Federal Practice & Procedure § 1350 (3d ed.) (“The district court

may postpone a decision on the question of subject matter jurisdiction … if [the

evidence submitted is] inconclusive.”) (collecting cases); James S. ex rel. Thelma S. v.

Sch. Dist. of Philadelphia, 559 F. Supp. 2d 600, 617 (E.D. Pa. 2008) (finding record on

12(b)(1) factual challenge incomplete and inconclusive, denying motion to dismiss,

and ordering relevant discovery).10

10 If, after discovery and briefing, the Court determines that Plaintiffs’ Eighth

Amendment claims fail, that would also mean that Plaintiffs’ FTCA claims fail

because Plaintiffs would no longer be able to use the Eighth Amendment to re-

establish the FTCA allegations that the Court concluded (at this stage) were barred

by the discretionary function exception. If that happens, the only remaining issue

would be Plaintiffs’ FTCA allegations related to masking procedures since (again, at

this stage), the Court determined that the Mask Memorandum does not fall within

the discretionary function exception.

IV. CONCLUSION

For the foregoing reasons, the Court DENIES, in part, without prejudice,

Defendants’ Motion to Dismiss the Amended Complaint. An accompanying Order

shall issue.

November 30, 2023 s/Renée Marie Bumb

Date RENÉE MARIE BUMB

Chief United States District Judge