Adams v. United States

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT BLUEFIELD

PATSY ADAMS,

Plaintiff,

v. CIVIL ACTION NO. 1:21-00304

UNITED STATES OF AMERICA,

Defendant.

MEMORANDUM OPINION AND ORDER

By Judgment Order entered on March 31, 2023, the court

granted defendant’s motion to dismiss for lack of subject matter

jurisdiction or, in the alternative, motion for summary

judgment. See ECF No. 45. In so doing, the court found that it

does not have subject matter jurisdiction over plaintiff’s claim

as it falls within the discretionary function exception to the

Federal Tort Claims Act (FTCA). The reasons for that decision

follow.

I. Factual Background

On April 14, 2018, Patsy Adams was an inmate at Federal

Prison Camp (FPC) Alderson in Alderson, West Virginia. See ECF

No. 1 at ¶¶ 1 and 9. The Federal Bureau of Prisons (BOP)

oversees and operates FPC Alderson. See id. at ¶ 2. On April

14, 2018, as Adams was walking from her housing unit to the

Central Dining Room at Alderson for brunch, she tripped on the

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sidewalk. See id. at ¶¶ 9 and 10. Adams did not fall, although

her ankle was injured. See Deposition of Patsy Adams at 69-73

(ECF No. 45-2). She was seen by the Health Services Unit that

day. See ECF No. 45-1 at 8. An x-ray several days later,

revealed a fracture to Adams’s ankle. See id. at 12-13.

Plaintiff filed her Complaint with this court on May 17,

2021. ECF No. 1. According to plaintiff, defendant’s

negligence in failing to repair and maintain the broken sidewalk

directly and proximately resulted in her physical injuries. See

ECF No. 1 at ¶¶ 21-24. Plaintiff seeks damages in an

unspecified amount as well as attorney’s fees. See id. at

Prayer for Relief.

In its motion to dismiss, the United States contends that

the discretionary function exception to the FTCA bars

plaintiff’s claim. Therefore, the United States asks the court

to dismiss this case for lack of subject matter jurisdiction.

II. Standard of Review

A motion to dismiss pursuant to Rule 12(b)(1) asks whether

a court has the ability to hear and adjudicate the claims

brought before it. Federal courts are courts of limited

jurisdiction and can act only in those specific instances

authorized by Congress. See Bowman v. White, 388 F.2d 756, 760

(4th Cir. 1968).

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The plaintiff bears the burden of proving the existence of

subject matter jurisdiction. See Evans v. B.F. Perkins Co., 166

F.3d 642, 647 (4th Cir. 1999). Further, a party who brings an

action against the United States pursuant to the FTCA “bears the

burden of pointing to . . . an unequivocal waiver of immunity.”

Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995)

(quoting Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983)).

The court notes that its analysis of defendant’s motion is

not limited to the evidence presented by the parties in their

pleadings. When considering a motion to dismiss under Rule

12(b)(1), “the court may consider the evidence beyond the scope

of the pleadings to resolve factual disputes concerning

jurisdiction.” Williams, 50 F.3d at 304 (citing 2A James W.

Moore, Moore’s Federal Practice ¶ 12.07 at 12-49-12-50 (2d ed.

1994)); see also Evans, 166 F.3d at 647 ("When a defendant

challenges subject matter jurisdiction pursuant to Rule

12(b)(1), ‘the district court is to regard the pleadings as mere

evidence on the issue, and may consider evidence outside the

pleadings without converting the proceeding to one for summary

judgment.’”) (quoting Richmond, Fredericksburg & Potomac R. Co.

v. United States, 945 F.2d 765, 768 (4th Cir. 1991)).

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III. Applicable Law

Fundamentally, federal courts do not have jurisdiction over

actions against the United States unless Congress has expressly

waived the United States’ sovereign immunity. See United States

v. Sherwood, 312 U.S. 584, 586 (1941); Dalehite v. United

States, 346 U.S. 15, 30 (1953) (“[N]o action lies against the

United States unless the legislature has authorized it.”). The

FTCA, however, provides a limited waiver of the United States’

sovereign immunity in actions arising from personal injuries

caused by government employees acting within the scope of their

employment. See 28 U.S.C. § 1346(b), § 2674. Under these

circumstances, “the Government will accept liability in the same

manner and to the same extent as a private individual would have

under like circumstances.” Strand v. United States, 233 F.

Supp.3d 446, 455 (D. Md. 2017) (citing Wood v. United States,

845 F.3d 123, 132 (4th Cir. 2017)). Nevertheless, numerous

exceptions prohibit complainants from recovery under the FTCA,

most prominently the “discretionary function” exception. See

id.

The “discretionary function” 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.”

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Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531, 536

(1988) (internal quotations and citations omitted). The

exception “assure[s] protection for the Government against tort

liability for errors in administration or in the exercise of

discretionary functions.” Dalehite, 346 U.S. at 26—27 (citation

omitted).

Under the discretionary function exception, the waiver of

sovereign immunity does not apply to:

Any 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 Supreme Court has established a two-

step analysis to ascertain whether the “discretionary function”

exception is appropriate in a given case. See United States v.

Gaubert, 499 U.S. 315, 322 (1991).

To determine whether the discretionary function

exception applies in a particular case, we engage in a

two-step analysis. First, we consider whether the

conduct at issue “involves an element of judgment or

choice.” Rich v. United States, 811 F.3d 140, 144

(4th Cir. 2015). Conduct involves an element of

judgment or choice unless a “federal statute,

regulation, or policy specifically prescribes a course

of action for an employee to follow.” Berkovitz ex

rel. Berkovitz v. United States, 486 U.S. 531, 536,

108 S. Ct. 1954, 100 L. Ed.2d 531 (1988). A document

that sets forth recommended actions or improvements

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does not demonstrate the absence of discretion.

Indem. Ins. Co. of N. Am. v. United States, 569 F.3d

175, 180–81 (4th Cir. 2009). Nor does a regulation

that, although requiring adherence to a general

standard, fails to dictate a course of action for

achieving that standard. See Rich, 811 F.3d at 145

(explaining that nothing in the relevant regulation

“requires that any specific action be taken by the

various prison officials”). Rather, the source of the

directive must either expressly prescribe or proscribe

“a particular course of action” in order to eliminate

an agency's discretion for the purposes of the

discretionary function exception. Pornomo v. United

States, 814 F.3d 681, 691 (4th Cir. 2016); see also

Berkovitz, 486 U.S. at 536, 108 S. Ct. 1954 (noting

that a government official lacks judgment or choice

when “a federal statute, regulation, or policy

specifically prescribes a course of action for an

employee to follow”).

Second, we consider whether the conduct at issue

“involve[d] the permissible exercise of policy

judgment.” Berkovitz, 486 U.S. at 537, 108 S. Ct.

1954. This inquiry focuses “not on the agent's

subjective intent . . . but on the nature of the

actions taken and on whether they are susceptible to

policy analysis.” United States v. Gaubert, 499 U.S.

315, 325, 111 S. Ct. 1267, 113 L. Ed.2d 335 (1991).

“When established governmental policy, as expressed or

implied by statute, regulation, or agency guidelines,

allows a government agent to exercise discretion, it

must be presumed that the agent's acts are grounded in

policy when exercising that discretion.” Id. at 324,

111 S. Ct. 1267. If the challenged actions or

omissions satisfy those two steps, the government's

conduct is considered “discretionary within the

meaning of the exception,” and courts lack

jurisdiction “whether or not the discretion involved

be abused.” Pornomo, 814 F.3d at 687 (quoting 28

U.S.C. § 2680(a)).

Bulger v. Hurwitz, 62 F.4th 127, 142-43 (4th Cir. 2023).

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For the second prong of the analysis, a court focuses on

“the nature of the actions taken and on whether they are

susceptible to policy analysis,” rather than “the agent’s

subjective intent in exercising the discretion[.]” United

States v. Gaubert, 499 U.S. at 324-25; Wood, 845 F.3d at 128

(“This second step . . . prohibit[s] courts from second guessing

decisions grounded in social, economic, and political policy

through the medium of an action in tort.”) (internal quotations

and citations omitted). "When established governmental policy,

as expressed or implied by statute, regulation, or agency

guidelines, allows a Government agent to exercise discretion, it

must be presumed that the agent's acts are grounded in policy

when exercising that discretion." Gaubert, 499 U.S. at 324.

Said another way, “[d]etermining whether the discretionary

function exception applies is not a fact-intensive exercise, as

the court will only look to the nature of the challenged

decision in an objective, or general sense, and ask whether that

decision is one which we would expect inherently to be grounded

in considerations of policy.” Chang–Williams v. Dep't of the

Navy, 766 F. Supp.2d 604, 617 (D. Md. 2011) (citations omitted).

“Plaintiffs bear the burden of proving that the

discretionary function exemption does not apply.” Indemnity

Ins. Co. of North America v. United States, 569 F.3d 175, 180

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(4th Cir. 2009). “If the plaintiff fails to meet this burden,

then the claim must be dismissed.” Welch v. United States, 409

F.3d 646, 651 (4th Cir. 2005). Additionally, the FTCA is

strictly construed with ambiguities resolved in favor of the

United States. See United States v. Nordic Village, Inc., 503

U.S. 30-34 (1992); see also Bulger, 62 F.4th at 142 (“[W]aivers

of sovereign immunity must be strictly construed.”).

IV. Discussion

A.

The court must first determine whether “a federal statute,

regulation, or policy specifically prescribe[d] a course of

action for” FPC Alderson, “its employee[s],” or agents “to

follow.” Berkovitz, 486 U.S. at 536. In another case, decided

earlier this year, involving an inmate’s slip and fall on a

sidewalk at a federal BOP facility in Connecticut, the court

took an in-depth look at the Bureau of Prisons’ judgment or

choice in maintenance of its facilities. See Gagne v. United

States, No. 3:21-cv-1601-VLB, 2023 WL 143163, at *2-4 (D. Conn.

Jan. 10, 2023). In so doing, the Gagne court surveyed the

various federal statutes and regulations at play and concluded

The Court finds that the federal

statutory and regulatory scheme detailed

above confers discretion to an agency on

maintenance of sidewalks within their care

and control. Section 589(a) of Title 40 of

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the United States Code and section 102-

74.580 of Title 41 of the Code of Federal

Regulations use the term “may,” which

confers discretion on the part of the actor.

In addition, the regulations delegate to the

agency the decision on when to install,

repair, or replace a sidewalk. 41 C.F.R. §

102-74.580. In making this decision,

federal regulations require consideration of

several factors, but ultimately leave the

decision on how to balance those factors to

the discretion of the agency. 41 C.F.R. §

102-74.10. The agency regulations do not

abdicate discretion, it describes the

process by which to exercise discretion.

Balancing these considerations involves the

exercise of discretion. For example, in

Reichart v. United States, 408 Fed. Appx.

441 (2d Cir. 2011), the Second Circuit

reviewed the dismissal of a slip and fall on

federal property case. The Second Circuit

affirmed the finding that the discretionary

function exception applied where the

decision not to repair the defect was made

in consideration of several factors,

including the risk of injury, cost of

repair, and allocation of resources. Id. at

443. The Second Circuit concluded that the

decision with respect to the maintenance of

the property “was an exercise of its

discretion and susceptible to policy

analysis.” Id. Here, similar to Reichart,

the federal statutory and regulatory scheme

requires consideration of several factors

and the exercise of discretion on sidewalk

maintenance.

The Plaintiff responds by pointing to

the BOP Facilities Operations Manual section

on “Annual Buildings and Grounds Condition

Assessment.” The Plaintiff claims that

under the BOP Manual, “all areas of the

institution must have a documented visual

inspection annually. . . .” (Opp. 6.). The

Plaintiff argues that this manual removes

discretion to inspect from BOP staff, and

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thus her claim that the BOP failed to

inspect the sidewalk does not fall under the

discretionary function exception. The

Plaintiff argues that the federal statutory

and regulatory scheme addressed above fails

to include terms such as “maintain” and

“inspect,” and thus the BOP manual dictates

whether the failure to inspect is

ministerial or discretionary.

The Plaintiff’s reliance on the BOP

Facilities Manual is misplaced. The manual

only prescribes mandatory yearly

inspections, it does not provide a mandatory

action in response to the inspection. The

Plaintiff points to nothing in the manual

that directly addresses maintenance of any

grounds condition. Thus, the manual does

not conflict with the federal statutory and

regulatory scheme addressed above, which the

Plaintiff concedes clearly leaves to the

discretion of the federal agencies whether

to install, repair, or replace a sidewalk. .

. .

* * *

Therefore, the BOP’s decision about

whether and when to repair a sidewalk

“involves an element of judgment or choice,”

which satisfies the first part of the

discretionary function exception test.

Id. at *3-4.

In support of its argument that the BOP’s maintenance of

its facilities involves discretion, the United States submitted

the Declaration of Lisa Vandall, the Environmental and Safety

Compliance Administrator at FPC Alderson. See ECF No. 45-3.

According to Vandall, pursuant to the BOP’s Facilities

Operations Manual, “[t]he Facilities Management Branch of the

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Administration Division, under the general direction of the

Assistant Director for Administration, is responsible for

coordination, oversight, and policy development for facilities

management activities at all Bureau-controlled facilities,

including FPC Alderson. Id. at ¶ 4. An institution’s “Facility

Manager is responsible for managing all construction, repairs,

improvements, and maintenance of the institution.” Id. at ¶ 5.

All areas of the institution have a yearly visual inspection,

“including buildings and structures, roads and grounds, and

mechanical/electrical systems to check for needed repairs and

maintenance.” Id. at ¶ 8. Requests for work are reviewed and

approved by the Facility Manager and are assigned a priority

rating. See id. at ¶¶ 9 and 10. “Once work orders are received

and prioritized, the Facility Manager is responsible for

planning, program scheduling, and reporting of construction and

maintenance activities.” Id. at ¶ 11. A Work Programming

Committee (“WPC”) “is responsible for setting priorities for

construction, repair, and maintenance activities” and meets on a

monthly basis. Id. at ¶ 12. As the foregoing demonstrates,

there is no mandatory directive related to sidewalk repair

and/or maintenance at BOP facilities.

Nor does plaintiff point to any such directive. Rather,

plaintiff’s entire argument that the discretionary function

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exception does not apply is rooted in her reliance on a similar

case decided in this district in which the court held that the

exception did not apply. See Grant v. United States Department

of Justice, Bureau of Prisons, CIVIL ACTION NO. 5:17-cv-04053,

2018 WL 3190759 (S.D.W. Va. June 28, 2018) (Berger, J.). That

case also involved an inmate who tripped on a sidewalk at FPC

Alderson. See id. at *1. Although ultimately determining that

the discretionary function exception did not deprive the court

of jurisdiction, the Grant court did conclude that the BOP’s

“choice not to repair a broken sidewalk at a prison camp . . .

involves an element of choice[.]” Id. at 4. According to the

court,

Here, no policy or statute directly relates to

the BOP’s maintenance of prison facilities. A

handbook sets forth a general obligation to provide a

safe, humane, and orderly facility. A program

statement requires annual inspections of the premises,

but does not specify maintenance requirements. In

short, there is neither a mandatory duty requiring

employees to maintain sidewalks nor a specific grant

of discretion related to facility maintenance. There

is an element of choice involved in deciding whether

to repair a broken sidewalk.

Id.

Accordingly, FPC Alderson’s decisions concerning the

maintenance and repair of its sidewalks has an element of

official judgment and choice. Since “no such mandatory statute,

regulation or policy applies to remove the challenged conduct

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from the choice and judgment of the government,1 then [this court

must] move to the second tier of the Berkovitz-Gaubert

analysis.” Baum v. United States, 986 F.2d 716, 720 (4th Cir.

1993).

B.

Under the second prong, the court must determine whether

the BOP’s choice is premised “on considerations of public

policy.” Baum, 986 F.2d at 720 (citations and internal

quotation marks omitted). Imporantly, when the conduct at issue

“allows a Government agent to exercise discretion, it must be

presumed that the agent’s acts are grounded in policy when

exercising that discretion.” Gaubert, 499 U.S. at 324. The

court “presume[s] that the [BOP’s] acts are grounded in policy

when exercising that discretion . . . [because] [t]he focus of

the inquiry is not on the agent’s subjective intent in

exercising the discretion conferred by statute or regulation,

but on the nature of the actions taken and on whether they are

susceptible to policy analysis.” Gaubert, 499 U.S. at 324—25

(footnote omitted). In light of Gaubert, the court does not

1 Nor does 18 U.S.C. § 4042, requiring the BOP to “provide for the

safekeeping, care, and subsistence of all persons charged with

or convicted of offenses against the United States,” satisfy the

first prong because “the broad directives in that statute afford

the BOP discretion regarding the implementation of those

mandates.” Bulger, 62 F.4th at 143.

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endeavor to decipher the actor’s “subjective intent,” and

instead focuses “on the nature of the actions taken and on

whether they are susceptible to policy analysis.” Id. at 324—25

(footnote omitted and emphasis added).

In the Gagne case, the court concluded that “the [BOP’s]

decision on whether to repair or replace a sidewalk is a policy

judgment the discretionary function exception is designed to

shield.” Gagne, 2023 WL 143163, at *5. As that court saw it,

“[b]alancing considerations of economy, efficiency, and safety,

fall squarely within the kind of choices the discretionary

function exception was designed to shield.” Id. The Vandall

Declaration confirms that the policy considerations cited by the

court in Gagne do come into play when the BOP makes decisions

regarding sidewalk repair and maintenance. As she noted,

consideration is given to “existing work load, availability of

funds and employees for supervising work, available inmate

hours, weather conditions, equipment required, material

procurement, and spacing of work to provide a reasonably

constant and continuing cycle of employment.” ECF No. 45-3 at ¶

13. The guidelines the BOP uses obviously leave room for

judgment and choice.

Like the court in Gagne, the court concludes that the BOP's

decision about where, when, and how to maintain a sidewalk

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necessarily requires the agency to balance economic concerns

with safety concerns. The BOP must weigh the best allocation of

its resources with the need to protect the safety of not only

the inmates, but also others who come on BOP property. The

court's decision herein is in line with decisions of the United

States Court of Appeals for the Fourth Circuit, holding that the

government's decisions regarding facility maintenance fall

within the discretionary function exception. See Wood, 845 F.3d

at 131-32 (holding that the Navy's maintenance decisions

regarding facilities used by civilian law enforcement fell

within the exception); Baum, 986 F.2d at 724 (holding that the

Park Service's maintenance decisions regarding the guardrail

system on the Baltimore-Washington Parkway fell within the

exception).2

In a case from the Southern District of New York, the court

discussed the “difficult line-drawing problem implicit in the

[discretionary function exception], namely, that nearly all

2 The court also notes that, in Grant, the court framed the choice

as “whether to repair a broken sidewalk.” Grant, 2018 WL

3190759, at *4. Indeed, the United States conceded that the

sidewalk was in need of repair. See ECF No. 70 at 2 n.1 in

CIVIL ACTION NO. 5:17-cv-04053 (“Once prison staff became aware

of the plaintiff’s fall, the sidewalk was barricaded until

repairs could be made later in the year during warmer

weather.”). In this case, the government has not made the same

concession, i.e., that the sidewalk is in need of repair. In

fact, the condition of the sidewalk is in the same condition as

it was when plaintiff tripped. See ECF 45-4 at 14.

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public acts involve some measure of discretion and some level of

policy concern, even if that concern is primarily protecting the

public fisc.” Mejia v. United States, No. 13-cv-5676 (AJN),

2015 WL 5138708, at *7 (S.D.N.Y. Sept. 1, 2015). In that case,

a slip-and-fall in which plaintiff alleged the United States

Coast Guard was negligent in failing to repair a defect in a

sidewalk, the court found that Mejia “ha[d] failed to overcome

the strong presumption that the Coast Guard’s maintenance

decision (or nondecision) was rooted in policy concerns.” Id.

at *8. Mejia had argued that the repair to the sidewalk in

question “could not implicate policy concerns because it would

not be expensive.” Id. Given Coast Guard policy “requiring

consideration of, inter alia, cost reasonability” in making the

decision whether to make sidewalk repairs, the court disagreed.

Id. at *9. As the court put it, the “[discretionary function

exception] is not about fairness, it is about power” and “was

intended to prevent judicial second-guessing of government

decisions through the medium of tort litigation.” Id.

Since the BOP’s choice is founded upon considerations of

public policy, Baum, 986 F.2d at 720; Gaubert, 499 U.S. at 324—

25, the second prong is satisfied.

Consequently, plaintiff’s claims are barred under the

FTCA’s discretionary function exception.

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V. Conclusion

For the reasons stated, the court GRANTED the defendant's

Motion to Dismiss. The court DIRECTS the Clerk to send a copy

of this Memorandum Opinion and Order to counsel of record.

IT IS SO ORDERED this 7th day of April, 2023.

ENTER:

David A. Faber

Senior United States District Judge

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