The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JAIME PACHECO-FIGUEROA,
Plaintiff,
CIVIL ACTION
v. NO. 22-4113
UNITED STATES OF AMERICA,
Defendant.
Scott, J. September 29, 2023
MEMORANDUM
Plaintiff Jaime Pacheco-Figueroa avers that he injured his arm while he was incarcerated
at the Federal Detention Center (FDC) in Philadelphia, did not receive a necessary surgery for
six months, and now has permanent injuries due to that delay that could have been avoided
through prompt medical attention. He filed a personal injury lawsuit against the United States
(the Government) under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-80.
The Government has moved to dismiss Mr. Pacheco-Figueroa’s claims under Rule 12(b)(1) of
the Federal Rules of Civil Procedure. The Government asserts that the court does not have
subject matter jurisdiction over this case, because the FTCA claims are barred by the
independent contractor exception and the discretionary function exception. The court finds that
neither the exception bars Mr. Pacheco-Figueroa’s FTCA claims and will deny the
Government’s motion to dismiss.
I. BACKGROUND
The FDC is operated by the Federal Bureau of Prisons (the BOP), and Mr. Pacheco-
Figueroa was incarcerated at the FDC during the main events mentioned in his complaint. See
Compl., ECF 1.1 In a Rule 12(b)(1) motion, the moving party may present evidence beyond the
pleadings to support its argument that the court lacks subject matter jurisdiction. See Part II,
infra. Here, the Government provides additional details about the FDC’s contract with an
independent contractor, NaphCare, Inc. (NaphCare), and asserts that NaphCare is responsible for
the delays in scheduling Mr. Pacheco-Figueroa’s treatment with medical providers outside of the
FDC. See Mot. to Dismiss 2-9, ECF No. 14. To support these claims, the Government provides a
declaration from the FDC’s Assistant Health Services Administrator, Melanie Stegeman, medical
records filed under seal, and portions of the contract between NaphCare and FDC. See Mot. to
Dismiss, Ex. A (hereinafter Stegeman Decl.), Ex. A-1 (hereinafter Medical Records (followed by
Bates stamp number where appropriate)), and Ex. B (hereinafter Contract Excerpts). Mr.
Pacheco-Figueroa was unaware of NaphCare’s involvement in his medical care when he filed his
complaint; however, he reviewed the documents attached to the Government’s Motion to
Dismiss and provided additional facts and argument based on those documents. See Pl.’s Br. in
Opp’n to Def.’s Mot. to Dismiss 3 n.2, 3-7 (hereinafter Response or Resp.). To understand the
parties’ disputes, it is first necessary to understand how the FDC and NaphCare work together to
provide medical care to people who are incarcerated at the FDC.
A. The FDC’s and NaphCare’s Roles in Medical Treatment
The Government asserts that, at all times relevant to Mr. Pacheco-Figueroa’s complaint,
the FDC had a contract with NaphCare to serve as the FDC’s “comprehensive medical services
provider for all medical care that could not be provided by the medical staff at the [FDC].” Mot.
to Dismiss 2; Stegeman Decl., ¶ 4. The contract states that NaphCare is an independent
1 According to the Government, Mr. Pacheco-Figueroa was transferred to the Federal Correctional
Institution in Florence, Colorado on or about August 22, 2021. See Mot. to Dismiss 4 n.4, ECF No. 14. At
the Initial Pretrial Conference held on September 12, 2023, Mr. Pacheco-Figueroa’s counsel noted that he
had been transferred to a federal prison in California.
contractor, and that “[t]he Government may evaluate the quality of professional and
administrative services provided, but retains no control over professional aspects of the services
rendered, including, by example, the contractor’s professional medical judgment, diagnosis, or
specific medical treatments.” Mot. to Dismiss 8 (quoting Contract Excerpts BOP00240).
Moreover, the contract specifies that NaphCare is “solely liable for and expressly agrees to
indemnify the Government with respect to any liability producing acts or omissions by it or its
employees or agents.” Id. (quoting Contract Excerpts BOP00240).
Ms. Stegeman avers that incarcerated people at FDC are initially examined by the FDC’s
medical staff. Stegeman Decl. ¶ 7. If the FDC’s medical staff believes that specialty care is
required, the FDC’s medical staff electronically submits a consultation request. Id. at ¶ 8. If that
consultation request requires a follow-up appointment with an outside provider, that request must
be approved by the FDC’s Clinical Director, who chairs the FDC’s Utilization Review
Committee (URC). Id. at ¶ 9. If the Clinical Director approves the request, an FDC Health
Services Technician forwards the consultation request to NaphCare. Id. at ¶ 10. At that point,
NaphCare becomes responsible for scheduling and notifying FDC medical staff of the
appointment. Id. at ¶ 11. For security reasons, incarcerated people are not informed of when they
will attend outside appointments. Id. at ¶ 13.
Mr. Pacheco-Figueroa has not yet been able to review the entire contract. See Resp. 4 n.3.
However, he correctly notes the following: The contract states that “[a]ll FDC referrals shall be
the sole responsibility and decision of the Government. No inmate may be transferred to another
medical facility, with exception of emergency cases, without advanced approval by authorized
FDC medical staff.” See id. (quoting Contract Excerpts BOP00232). Similarly, the contract
provides that the FDC “reserves the right to determine the manner of an inmate’s referral, i.e.,
via on-site clinic, via community-based referral, via telemedicine consult, or any other method
the FDC determines to be reasonable and appropriate.” See id. at 5; Contract Excerpts
BOP00228. There are also considerable restrictions on what an independent contractor may or
may not do when treating incarcerated people, including not guaranteeing future treatment or
discussing future appointment dates. See Resp. 5 (quoting Contract Excerpts BOP00232).
Importantly, “[t]he BOP . . . is under no obligation to follow consultant recommendations,” and a
contractor cannot “perform any treatment/procedures unrelated to the reason for consultation
without receiving prior authorization from the FDC.” See id. (quoting Contract Excerpts
BOP00232). Additionally, Mr. Pacheco-Figueroa notes that the contract provides that quality
assurance measures would be designed and implemented by the FDC. See id. (discussing
BOP00227, BOP00238).
B. Mr. Pacheco-Figueroa’s Injury and Medical Treatment
On August 17, 2019, Mr. Pacheco-Figueroa fell and injured his right arm. Compl. ¶ 12.
On August 19, 2019, FDC nurse practitioner Christine Nelson examined Mr. Pacheco-Figueroa’s
arm and noted “upper arm and elbow swelling, throbbing pain and a triceps tremor.” Id. at ¶ 13.
On August 22, 2019, an x-ray indicated that Mr. Pacheco-Figueroa had a triceps tendon injury.
Id. ¶ 14.
On August 23, 2019, FDC physician Dr. Raeph Laughingwell reviewed the x-ray and
ordered an MRI for further evaluation, and directed that the MRI be completed by August 30,
2019. Compl. ¶ 18. According to medical records, the request was marked as a “routine” priority.
See Resp. 6 (citing Medical Records BOP00126). The URC—which the Government concedes is
chaired by a BOP employee—did not approve that request until September 10, 2019, and on
September 11, 2019, the consultation request was sent to NaphCare. See id. at ¶¶ 20-21. Ms.
Stegeman avers that “the FDC requested that the MRI be scheduled for the first available
appointment,” but does not cite to any specific document to support that statement. See id. at ¶
22.
Mr. Pacheco-Figueroa did not receive an MRI until November 6, 2019. Compl. ¶ 21;
Stegeman Decl. ¶ 23. However, the FDC physician did not receive that MRI report from
NaphCare until November 13, 2019. Stegeman Decl. ¶ 24 (citing Medical Records BOP00125).
The MRI reportedly revealed a “[n]ear full-thickness tear of [Mr. Pacheco-Figueroa’s] triceps
tendon” and a “[c]hronic complete tear of [his] radial collateral ligament.” See Medical Records
BOP00125; Compl. ¶ 24.2 After reviewing the MRI results, Dr. Laughingwell ordered a
consultation with an orthopedic surgeon and specified that the consultation was to occur by
November 20, 2019, but again marked the request as a “routine” priority. See Compl. ¶ 26; Resp.
6 (citing Medical Records BOP00125). Ms. Stegeman avers that on November 18, 2019, the
URC reviewed that request and approved a consultation with an orthopedic surgeon “for priority
scheduling,” but again, no specific document is cited to support that statement. See Stegeman
Decl. ¶ 26.
NaphCare scheduled a consultation with an outside orthopedic surgeon for December 5,
2019, and Mr. Pacheco-Figueroa attended the consultation on that date and received another
MRI. See Compl. ¶ 28; Stegeman Decl. ¶¶ 27-28. Mr. Pacheco-Figueroa alleges that the
consulting physician from Rothman Orthopedics diagnosed Mr. Pacheco-Figueroa with a
“traumatic rupture of his right collateral ligament” and recommended surgery, but noted that it
2 Mr. Pacheco-Figueroa alleges that, according to reasonable medical standards, failure to
surgically repair a triceps tendon rupture within four weeks of an injury can result in “significant
disability, weakness, pain, and deformity.” Compl. ¶¶ 16-17. And a torn radial collateral ligament can
“lead to pain, instability, and a disruption of the arm’s normal functioning.” Id. at. ¶ 25.
was “very unlikely that the lateral collateral ligament would be able to be repaired.” Compl. ¶¶
30-31; see also Medical Records BOP00185. The orthopedic surgeon also allegedly informed
Mr. Pacheco-Figueroa that his injury had started to heal improperly, so he needed surgery as
soon as possible. Compl. ¶ 32.
On December 9, 2019, Dr. Laughingwell received and reviewed the MRI, and, on that
same date, Dr. Laughingwell directed that Mr. Pacheco-Figueroa receive surgery by December
16, 2019, but he again marked the priority of the request as “routine.” See Compl. ¶ 33;
Stegeman Decl. ¶ 29; Resp. 6 (citing Medical Records BOP00123). Ms. Stegeman alleges that
the URC approved that request on December 9, 2019. Stegeman Decl. ¶ 30.3 However, Ms.
Stegeman also states that the consultation request for surgery was not submitted to NaphCare for
scheduling until December 13, 2019. See id. at ¶ 31.
Mr. Pacheco-Figueroa had surgery on February 3, 2020. Compl. ¶ 36; Stegeman Decl. ¶
32. Ms. Stegeman avers that no complications were noted after the surgery. Stegeman Decl. ¶ 32
(citing Medical Records BOP00165-67). Mr. Pacheco-Figueroa alleges that his surgeon
remarked that “the surgical repair had been abnormally extensive because the triceps muscle had
retracted significantly due to the delay in care, and that he had never before needed to use so
much muscle from a cadaver to reconstruct a triceps.” Compl. ¶ 38.
Mr. Pacheco-Figueroa also alleges that he did not receive adequate post-operative pain
management, and that he did not receive physical therapy until he requested it, and then was only
taken to two sessions several months after his surgery. See id. at ¶¶ 39-40. In the months leading
up to his surgery, Mr. Pacheco-Figueroa allegedly experienced anxiety and sleeping difficulties
3 Ms. Stegeman’s declaration cites Medical Records BOP00123 to support this allegation, but the
court reviewed that record and found no reference to the URC or any “approval” of Dr. Laughingwell’s
request.
due to his pain and his fear that he would sustain long-term damage from the treatment delay.
See id. at ¶¶ 43-45. At the time that his complaint was filed, Mr. Pacheco-Figueroa continued to
experience chronic pain and weakness in his right arm and could not perform physically
challenging jobs within the prison. See id. at ¶¶ 41-42.
Ms. Stegeman’s declaration also details Mr. Pacheco-Figueroa’s post-operative care. See
Stegeman Decl. ¶¶ 33-59. Two particular details are relevant to the court’s reasoning: First, the
aftercare consisted of a combination of visits with FDC’s medical staff, at two follow-up
appointments with the outside orthopedic surgeon (on February 20, 2020, and March 22, 2021),
and two physical therapy sessions (on April 26, 2021, and June 8, 2021). See id.4 Second, on
March 13, 2020, the BOP initiated a COVID Action Plan that placed additional restrictions on
outside medical appointments, resulting in the cancellation of any non-emergency medical
appointments, which were then reviewed and reprioritized on a case-by-case basis. See id. at ¶
60. This allegedly impacted some of Mr. Pacheco-Figueroa’s follow-up appointments. See id.
C. Procedural History
Mr. Pacheco-Figueroa filed a timely Administrative Tort Claim to the BOP on July 21,
2021. Compl. ¶ 7. The BOP did not respond to the claim, so it was constructively denied on
January 21, 2022. See id. He then filed a complaint in the instant action on October 13, 2022. See
id. The Government filed its Motion to Dismiss on February 17, 2023. See Mot. to Dismiss. This
matter was reassigned from the Honorable Gerald J. Pappert to this court on February 22, 2023.
See Order, ECF No. 17. Mr. Pacheco-Figueroa filed his Response to that motion on March 17,
2023. See Response. On April 14, 2023, the Government replied to that Response. See Reply in
4 Mr. Pacheco-Figueroa notes that, on February 20, 2020, his orthopedic surgeon recommended a
follow-up appointment in four weeks, but the FDC did not submit a consultation request to NaphCare
until March 11, 2020. See Resp. 7 (citing Stegeman Decl. ¶ 45).
Supp. Of Mot. to Dismiss, ECF No. 24 (hereinafter Reply). The parties attended an Initial
Pretrial Conference on September 12, 2023, and the court informed the parties of its decision to
deny the Government’s motion to dismiss, with an opinion and order to follow.
II. STANDARD OF REVIEW
“A challenge to subject matter jurisdiction under Rule 12(b)(1) may be either a facial or a
factual attack.” Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016). This case involves a
factual attack, which allows a defendant to “attack[] the factual allegations underlying the
complaint’s assertion of jurisdiction, either through the filing of an answer or ‘otherwise
present[ing] competing facts.’ ” See id. (quoting Constitution Party of Pa. v. Aichele, 757 F.3d
347, 358 (3d Cir. 2014)). When this factual challenge is made, the plaintiff has the burden to
prove that jurisdiction exists; and the court may consider evidence beyond the pleadings to
“satisfy itself as to the existence of its power to hear the case.” See id. (quoting Mortensen v.
First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)).
In the instant motion, the government asserts two exceptions to the FTCA and claims that
the court does not have jurisdiction over the case if either of the two exceptions applies. The
Third Circuit has permitted district courts to consider such FTCA jurisdictional issues in Rule
12(b)(1) motions, but it has cautioned that, “where jurisdiction is intertwined with the merits of
an FTCA claim, [the] district court must take care not to reach the merits of a case when
deciding a Rule 12(b)(1) motion.” See CNA v. United States, 535 F.3d 132, 144 (3d Cir. 2008).
Specifically, “when faced with a jurisdictional issue that is intertwined with the merits of a
claim, district courts must demand ‘less in the way of jurisdictional proof than would be
appropriate at a trial stage.’” See id. (quoting Gould Elecs. Inc. v. United States, 220 F.3d 169,
178 (3d Cir. 2000)). This less demanding standard of proof ensures that courts do not
prematurely dismiss cases in which jurisdiction could be established if the plaintiffs are afforded
discovery. See id. at 145.
III. DISCUSSION
According to the doctrine of sovereign immunity, the United States cannot be sued
without its consent. See CNA, 535 F.3d at 140 (citing United States v. Sherwood, 312 U.S. 584,
586 (1941)). The Federal Tort Claims Act (FTCA) constitutes a limited waiver of sovereign
immunity that allows the United States to be sued in federal court based on the tort law of the
state in which the alleged tort occurs. See 28 U.S.C. § 1346(b)(1).5 However, there are several
exceptions to that limited waiver of sovereign immunity. Here, the Government asserts that two
exceptions to the FTCA apply—the independent contractor exception and the discretionary
function exception—and bar Mr. Pacheco-Figueroa’s claims. Additionally, the Government
briefly asserts that the Prison Litigation Reform Act (PLRA) prevents Mr. Pacheco-Figueroa
from recovering solely for emotional distress. For the reasons below, none of these arguments
prevent the court from exercising jurisdiction over Mr. Pacheco-Figueroa’s claims.
A. The Independent Contractor Exception Does Not Completely Bar Plaintiff’s
Claims
The FTCA specifically pertains to injuries caused by federal employees and disclaims
liability for the acts of “any contractor with the United States.” 28 U.S.C. § 2671. This is often
referred to as the independent contractor exception to the FTCA. See Norman v. United States,
111 F.3d 356, 357 (3d Cir. 1997). The key question that distinguishes a federal agency from an
5 Specifically, the FTCA provides that federal district courts have exclusive jurisdiction over
“claims against the United States, for money damages . . . for injury or loss of property, or personal 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.” 28 U.S.C. § 1346(b)(1).
independent contractor is whether the federal government supervises the actor’s day-to-day
operations. See United States v. Orleans, 425 U.S. 807 (1976).
The Government correctly notes that district courts in the Eastern District of
Pennsylvania have dismissed FTCA claims under Rule 12(b)(1) where it was clear from a
contract between the federal government and an independent contractor that the responsibility for
a plaintiff’s alleged injuries solely lies with the independent contractor. See Mot. to Dismiss 13;
Woods v. Sec. of Hous. & Urban Dev., 2017 WL 4621690 *3 n.2, *5 (E.D. Pa. Oct. 16, 2017)
(collecting cases and dismissing personal injury complaint against federal agency that had
contracted full responsibility of maintaining property to independent contractor). But here, it is
not facially obvious from the FDC’s contract with NaphCare that NaphCare bears sole
responsibility for alleged delays in the FDC’s timing or prioritization of consultation requests
that the FDC chooses to submit to NaphCare. To the contrary, the contract unequivocally states
that “[a]ll FDC referrals shall be the sole responsibility and decision of the Government.” See
Contract Excerpts BOP00232. At most, the contract may be persuasive evidence that after (1)
the FDC’s medical personnel submits a consultation request to the (FDC-led) URC, (2) the URC
approves the consultation request, and (3) the FDC electronically transmits the approved
consultation request to NaphCare, then the responsibility for scheduling the consultation and
administering the requested outside services falls on NaphCare.6
6 Furthermore, the contract states that NaphCare is “solely liable for and expressly agrees to
indemnify the Government with respect to any liability producing acts or omissions by it or its employees
or agents,” and, in context, “it or its employees” refers to NaphCare or NaphCare’s employees. See
Contract Excerpts BOP00240. It does not follow from that language that NaphCare is liable for the delays
in care that are attributable to the FDC’s own medical employees or internal consultation request
procedures.
None of the cited case law persuades the court that it should declare, as a threshold
jurisdictional matter, that Mr. Pacheco-Figueroa cannot possibly prove his claims that BOP
medical personnel delayed his necessary surgery and provided deficient post-surgery care.
Although the Government cites three cases from other jurisdictions that initially seem analogous
to this matter, Mr. Pacheco-Figueroa persuasively distinguishes all three cases. See Mot. to
Dismiss 14; Response 13 (both discussing Brown v. United States, 2017 WL 4155218 (S.D. Ind.
Sept. 19, 2017), Grace v. United States, 754 F. Supp. 2d 585 (W.D.N.Y. 2010), and Krembel v.
United States, 2019 WL 1429585 (E.D.N.C. Mar. 29, 2019)). Most notably, all three of these
decisions were made at the summary judgment phase of proceedings, after the close of
discovery.7 This advanced stage of litigation enabled all three courts to review full records and
determine that plaintiffs did not meet their burdens of proving that negligence was specifically
attributable to government employees rather than independent contractors who provided
specialized medical care.8 Conversely, Mr. Pacheco-Figueroa cites several cases that, while not
7 Brown decided a motion for summary judgment rather than a Rule 12(b)(1) motion. See Brown,
2017 WL 4155218 at *1. Grace ruled on both the government’s Rule 12(b)(1) motion and the
independent contractors’ joint motion for summary judgment. See Grace, 754 F. Supp. 2d at 588, 592-95.
Krembel decided a Rule 12(b)(1) motion at summary judgment after denying a threshold motion raising
the same claims. See Krembel v. United States, 2017 WL 1058179, at *2 (E.D.N.C. Mar. 20, 2017)
(rejecting United States’ claim that independent contractor exception applies to bar FTCA suit because
plaintiff plausibly alleged that BOP employees failed to ensure that independent contractor timely
provided medical care).
8 Grace actually undermines the government’s position, because even after fully reviewing the
record, the court determined that the motion to dismiss was granted only insofar as the plaintiff’s claims
were based on the alleged negligence of specific medical staff that the court determined to be independent
contractors (a physician and university ophthalmology department). See Grace, 754 F. Supp. 2d at 599.
The Grace court found that the plaintiff was not estopped from pursuing administratively exhausted
claims against actual employees of the Veteran’s Administration, and the plaintiff’s claim that Veteran’s
Administration employees were negligent in rescheduling a follow-up appointment with the independent
contractor survived the government’s Rule 12(b)(1) motion. See id. at 599-601.
See also Brown, 2017 WL 4155218 at *13 (finding that “no medical expert opined that there was
a delay [in scheduling consultations with outside medical specialists] that fell outside the applicable
standard of care”); Krembel v. United States, 2019 WL 1429585 at *5 (E.D.N.C. Mar. 29, 2019) (“[T]he
binding upon this court, persuade the court that it would be imprudent to dismiss an FTCA claim
that raises plausible allegations of negligent actions of both BOP employees and independent
contractors without at least permitting discovery. See Resp. 10-11.
At this early stage, Mr. Pacheco-Figueroa has proffered enough evidence to persuade the
court that delays in his medical care may be attributable to both federal employees and
NaphCare, and that he is at least entitled to discovery to further develop those claims. First, from
the date of Mr. Pacheco-Figueroa’s first post-injury examination on August 19, 2019, until his
surgery on February 3, 2020, there are at least 28 cumulative days in which consultation requests
for Mr. Pacheco-Figueroa’s first MRI, surgical consultation, and surgery bounced around
between BOP employees before ever making it to NaphCare.9 And the court is not persuaded at
this point that the FDC’s medical personnel can simply contract away their own responsibilities
to triage and offer adequate medical care when it seems that at least two layers of FDC medical
personnel are deciding which requests are sent to NaphCare and perhaps how quickly requests
are reviewed and transmitted to NaphCare.
record clearly indicates the BOP promptly notified [the independent contractor] of plaintiff’s approved
consultations, and that [the independent contractor] was the sole cause for any delay in treatment.”).
9 Dr. Laughingwell determined that Mr. Pacheco-Figueroa needed an MRI on August 23, 2019, but
that request was not approved and relayed to NaphCare until September 11, 2019—that’s 19 days later.
Dr. Laughingwell reviewed the MRI and submitted a request for a consultation with an orthopedic
surgeon on November 13, 2019, but the URC did not approve that request until November 18, 2019—
that’s 5 more days. Dr. Laughingwell promptly ordered surgery after reviewing Mr. Pacheco-Figueroa’s
second MRI, and the URC reportedly approved the surgery on the same day, December 9, 2019, but for
some reason, the approved surgery request was not submitted to NaphCare until December 13, 2019—
that’s 4 more days. Thus, there are at least 28 days where consultation requests were bouncing around
between BOP employees before making their way to NaphCare. That number matters here because Mr.
Pacheco-Figueroa has alleged (and the Government has not yet refuted) that the recommended window
for surgery for his type of injury is four weeks. It is plausible, at this very early stage, that reasonable
medical professionals would say that that 28-day delay breached generally accepted standards of medical
care.
Second, there appear to be several records in which Dr. Laughingwell, an FDC physician,
marked consultation requests as “routine” priority. The Government argues that an FDC
physician’s classification of requests as “routine” is “irrelevant” because “NaphCare was
responsible for exercising independent medical judgment over [Mr. Pacheco-Figueroa’s] relevant
care,” and because NaphCare “had sufficient time to treat [him] on an emergent basis,” if
NaphCare wanted to do so. See Reply 6 n.3. It is not yet clear to the court, from the record that
the Government has created, that an FDC physician’s prioritization of a request would have no
impact on the URC’s review of that request or NaphCare’s prioritization of the request.
Third, Mr. Pacheco-Figueroa asserts that there were issues with his aftercare and access
to physical therapy. By the Government’s own factual assertions, it seems that FDC personnel
were more directly involved in that allegedly deficient aftercare. However, it is not yet clear how
much the BOP’s COVID-19 policies limited the FDC staff’s treatment options.10
Mr. Pacheco-Figueroa correctly notes that a district court may allow limited discovery to
ascertain whether it has jurisdiction under Rule 12(b)(1). See Resp. 8. However, in this particular
case, the court cannot ascertain where jurisdictional discovery would end and merits discovery
would begin. This case likely will come down to factual issues such as (1) the extent to which
specific delays in treatment were attributable to the FDC’s medical personnel rather than
NaphCare; (2) whether any delays attributable to the FDC’s medical personnel breached
standards of medical care; (3) whether any delays in treatment attributable to the FDC in fact
exacerbated Mr. Pacheco-Figueroa’s injuries; and (4) whether the post-surgical care that was
within the FDC’s control breached standards of medical care. Even if the court were to authorize
10 As further explained in Part III.B, infra, there may be some extent to which the BOP or FDC has
discretionary authority to develop COVID-19 policies that may negatively impact incarcerated people
who have medical needs unrelated to COVID-19. The court notes, however, that the COVID Action Plan
was initiated more than a month after Mr. Pacheco-Figueroa’s surgery.
limited discovery about the contract or relationship between the FDC and NaphCare, that
discovery could not possibly resolve some of the more complex issues about acceptable
standards of medical care, which appear to be unresolvable without medical experts. Thus, there
may as well be full discovery.
It is possible that further discovery will reveal that NaphCare is at fault for at least some
of the scheduling delays, or that the FDC employees’ referral timing, prioritization, and post-
surgical care did not breach standards of medical care. If it turns out after discovery that the court
does not have jurisdiction over the FTCA claims, then the Government may renew these claims
by the deadline for submitting dispositive motions.11 However, at this early stage of litigation, it
does not seem practicable for the court to craft boundaries for limited jurisdictional discovery.
B. The Discretionary Function Exception Does Not Bar Plaintiff’s Claims
The FTCA provides that the Government’s sovereign immunity is not waived for claims
that are based on a government employee’s performance of or failure to perform a discretionary
function or duty, even if the employee has abused the Government’s discretion. 28 U.S.C. § 2680
(a). This is known as the discretionary function exception. The discretionary function exception
does not necessarily apply whenever an official can choose from different courses of action. See
S.R.P. ex rel. Abunabba v. United States, 676 F.3d 329, 332 (3d Cir. 2012). Instead, the purpose
of the discretionary function exception is to prevent litigants from “second-guessing ‘legislative
and administrative decision grounded in social, economic, and political policy.’” Id. (quoting
Gotha v. United States, 115 F.3d 176, 179 (3d Cir. 1997)).
11 “If the court determines at any time that it lacks subject-matter jurisdiction, the court must
dismiss the action.” Fed. R. Civ. P. 12(h)(3).
Initially, a district court “must identify the conduct at issue.” Merando v. United States,
517 F.3d 160, 165 (3d Cir. 2008). After making that threshold determination, the court applies a
two part-test. See id. at 164. “First, a court must determine whether the act giving rise to the
alleged injury and thus the suit involves an ‘element of judgment or choice.’” Id. (quoting United
States v. Gaubert, 499 U.S. 315, 322 (1991)).12 “Second, even if the challenged conduct involves
an element of judgment, the court must determine ‘whether that judgment is of the kind that the
discretionary function exception was designed to shield.’” Id. at 165 (quoting Gaubert, 499 U.S.
at 322-23)). The focus of this second prong is on “the nature of the actions taken and on whether
they are susceptible to policy analysis” – this prong does not focus on “the agent’s subjective
intent in exercising the discretion.” See id. (internal citations and quotations omitted).
1. The Government Misconstrues the Conduct at Issue
Here, the Government extensively argues that the plaintiff’s claims are barred by the
discretionary function exception. But the Government misidentifies the conduct at issue: Mr.
Pacheco-Figueroa has not challenged the BOP’s discretionary authority to outsource prisoners’
medical care to NaphCare. Cf. Mot. to Dismiss 18-22 (arguing that “[d]ecisions to delegate
certain medical care services and functions to an independent contractor are protected by the
discretionary function exception”); Resp. 16 (“Mr. Pacheco-Figueroa does not contest that the
United States retains discretion as to how to discharge its duties to provide medical care for
incarcerated people in BOP facilities and whether to enter into contracts to do so.”). Nor has Mr.
Pacheco-Figueroa accused the BOP of failing to properly train or supervise NaphCare. See Mot.
to Dismiss 22. Instead, Mr. Pacheco-Figueroa asserts that the FDC’s employees “negligently
12 “The requirement of judgment or choice is not satisfied 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.” Merando, 517 F.3d at 164 (internal citations and quotations
omitted).
provided care in their own right and failed to follow the compliance assurance safeguards that
are included in the contract with NaphCare.” See Resp. 17. Thus, phrased a bit more neutrally,
the conduct at issue is (1) FDC employees’ abilities to delay or prioritize the referral of a federal
prisoner’s medical care to the independent contractor that will schedule necessary surgery, and
(2) FDC employees’ abilities to provide post-surgical care independently from independent
contractors.13
2. Medical Decisions Generally Involve Judgment or Choice
A BOP employee’s timing and prioritization of a referral to an independent contractor
that will perform advanced medical care involves some degree of judgment or choice. Congress
has determined that the “Bureau of Prisons . . . shall . . . provide for the safekeeping, care and
subsistence [and] protection . . . of all persons charged with or convicted of offenses against the
United States.” 18 U.S.C. § 4042(a)(2)-(3). Both parties rely on this statute to make very
different arguments: The Government argues that 18 U.S.C. § 4042(a) gives the BOP discretion
over how it provides medical care to federal prisoners, while Mr. Pacheco-Figueroa cites 18
U.S.C. § 4042(a) as support for his contention that the Government “does not have the discretion
to fail to provide medical care or to provide inadequate medical care.” See Mot. to Dismiss 17;
Resp. 16. But the terms “safekeeping, care and subsistence [and] protection” could have a wide
range of possible interpretations by prison officials, and policies implementing this mandate can
look very different. It appears that the BOP’s medical personnel must provide adequate medical
care to incarcerated people, but they have some degree of choice in how they will provide that
care.
13 The court notes that the contract specifically states that “[t]he BOP . . . is under no obligation to
follow consultant recommendations.” See Contract Excerpts BOP00232. This presumably gives FDC
employees autonomy in providing post-surgical care.
3. The Discretionary Function Exception Was Not Designed to Shield
Delays or Triage Decisions in Medical Care Referrals
Although there is some element of judgment involved in a BOP employee’s prioritization
and timing of medical referrals to NaphCare, these case-by-case medical determinations are not
the type of judgments that the discretionary function exception was designed to shield.
The Government’s focus on Rodriguez v. United States, 2016 WL 4480761 (M.D. Pa.
Aug. 23, 2016), is misplaced. In Rodriguez, the plaintiff specifically challenged the BOP’s
“contract policy for outsourcing health care issues that cannot be treated at the respective
facility” as “defective,” arguing that it made it impossible for BOP to adequately screen, train,
and supervise the contracted health care personnel. See Rodriguez, 2016 WL 4480761 at *8.
Importantly, Mr. Pacheco-Figueroa does not challenge the BOP’s high-level policy
determination to outsource medical care to NaphCare. Nor does he challenge the BOP’s lack of
oversight over NaphCare after a referral is made.
Generally, the BOP does and should have broad policymaking authority to enter contracts
to engage independent contractors to provide medical care that the BOP cannot adequately
provide in its own facilities. But Rodriguez is not persuasive insofar as it broadly declares that
“implementation of health and medical care duties is left to the discretion or judgment of the
BOP,” before delving into its more specific and careful holding that the BOP’s contract policy
for outsourcing health care issues is discretionary. See id. The Third Circuit has not declared that
all health and medical care is a discretionary function of the BOP. And while no federal law or
regulation requires or curbs the BOP’s ability to outsource medical care, no federal law permits
the BOP to exercise its discretion to provide substandard or negligent medical care.
More specifically, the initial triage of emergent medical issues and the timing and
prioritization of referrals to outside specialists are not legislative or administrative decisions that
can be easily grounded in social, economic, and political policy. These are nuanced medical
decision to be made on a case-by-case basis by practitioners with adequate medical knowledge.
These are decisions that are cognizable in regular tort and medical malpractice law.14 Either an
injury is referred in time for an independent contractor to adequately treat the injury or it is not.
A medical practitioner who has no expertise in prison administration could make most medical
decisions that BOP medical personnel make,15 but a prison administrator who has no medical
expertise would not have adequate knowledge to make most of the medical triage and referral
decisions that medical professionals regularly make.
Moreover, the BOP’s high-level decision to outsource advanced medical care to
independent contractors is perhaps itself an acknowledgement that BOP employees have no
special ability to provide certain types of medical care. It is perhaps contradictory for the BOP to
make a very practical decision to outsource surgeries like the surgery that Mr. Pacheco-Figueroa
14 For this reason, the Government’s invocation of Brown v. United States, 2018 WL 741731 (E.D.
Pa. Feb. 7, 2018), is unpersuasive. The Government relies on Brown to argue that Mr. Pacheco-Figueroa
cannot support a negligence claim “by second guessing the conduct of the United States in contracting
with NaphCare and supervising NaphCare’s performance of its duties under the Contract.” See Mot. to
Dismiss 19-20. Brown specifically states that claims involving “allegations of negligent hiring,
supervision, and retention against the [Veteran’s Administration] . . .. fall within . . . the discretionary
function exception . . . absent a policy that expressly mandates specific supervisory, retention, or hiring
practices.” See Brown, 2018 WL 741731 at *5 (emphasis added). Here, Mr. Pacheco-Figueroa does more
than merely challenge the BOP’s supervision of independent contractors; he makes medical malpractice
claims about medical practitioners who happen to be BOP employees, and he alleges that BOP
personnel’s delays in submitting referrals to NaphCare exacerbated his injuries.
15 A facility-wide policy like the COVID Action Plan likely presents an exception to this
generalization. Experts in medical care and/or public health crises in institutional settings would likely
have more expertise than the average medical practitioner in designing policies that will adequately
prevent the spread of COVID-19 in those facilities. Perhaps a prison-wide COVID-19 triage policy would
fall within the BOP’s discretionary authority, and that sort of policy might result in the deprioritization of
a non-contagious medical issue like Mr. Pacheco-Figueroa’s injury. However, the existence of the
COVID Action Plan cannot completely extinguish Mr. Pacheco-Figueroa’s claims. All of the allegedly
negligent events leading up to Mr. Pacheco-Figueroa’s surgery predate the COVID Action Plan, and the
COVID Action Plan cannot completely negate the BOP’s duty to provide adequate medical care to all
incarcerated people in its care.
needed, while also arguing that it retains discretionary authority over how it may delay that
surgery through its own administrative processes. So, although BOP personnel who treated Mr.
Pacheco-Figueroa had multiple options as to how they would prioritize his treatment and how
quickly they would refer him to NaphCare, there is no reason that the BOP is sheltered from
liability for decisions that allegedly constituted negligent medical treatment.
For all of these reasons, the choices of individual BOP employees to delay or defer
medical referrals or deprioritize or prioritize Mr. Pacheco-Figueroa’s medical care are not
immunized by the discretionary function exception. Mr. Pachecho-Figueroa is entitled to conduct
further discovery to determine whether these decisions amounted to negligence in providing
necessary medical treatment.
C. It Is Premature to Dismiss Plaintiff’s Request for Compensatory Damages
for Emotional Distress
Finally, the parties agree that the Prison Litigation Reform Act prevents a plaintiff from
solely recovering for mental or emotional injury. See Mot. to Dismiss 23; Resp. 17. The
Government argues that, since Mr. Pacheco-Figueroa does not plead any physical injury that was
directly caused by BOP employees, his compensatory damages claim for emotional distress
cannot survive. Mot. to Dismiss 24. If, after further discovery, Mr. Pacheco-Figueroa ultimately
cannot demonstrate that the BOP was negligent in its provision of necessary medical treatment,
then he would not be able to recover for emotional distress from the BOP. But if it turns out that
the BOP was negligent in its efforts to refer Mr. Pacheco-Figueroa for medical treatment, and
those negligent delays in care exacerbated his physical injuries, then he may potentially recover
compensatory damages for emotional distress. Thus, it would be premature at this stage for the
court to declare that Mr. Pacheco-Figueroa cannot recover compensatory damages for emotional
distress.
IV. CONCLUSION
For the foregoing reasons, the Government’s motion to dismiss for lack of jurisdiction
pursuant to Rule 12(b)(1) is denied without prejudice. Mr. Pacheco-Figueroa is entitled to
discovery for his claims, and the Government may renew this motion at the close of discovery. 16
BY THE COURT:
______________________________
HON. KAI N. SCOTT
United States District Court Judge
16 The court is willing to reconsider the independent contractor exception with the benefit of a fuller
evidentiary record. However, the court is not likely to revisit its position on the discretionary function
exception, absent arguments or facts that were not presented in the instant motion.