United States District Court, D. Connecticut
RULING ON MOTION TO DISMISS
W. Thompson, United States District Judge
plaintiff, Isael Sanchez-Mercedes, brings a claim for
negligence under the Federal Torts Claims Act, 28 U.S.C.
§ 2671 et seq. (“FTCA”). Defendant United
States of America moves to dismiss this case pursuant to
Federal Rule of Civil Procedure 12(b)(1) for lack of subject
matter jurisdiction. For the reasons set forth below, the
motion is being granted.
plaintiff, who is an inmate in the custody of the Bureau of
Prisons (“BOP”), is presently incarcerated at the
Federal Correctional Institution in Danbury, Connecticut
(“FCI Danbury”). Following a right knee injury
the plaintiff sustained in or about August 2013, the medical
staff authorized him to use a cane for assistance while
walking. The plaintiff had to climb and descend four levels
of stairs to move to and from his housing unit at FCI
Danbury, where inmates are subject to strict time limits for
moving from one area to another. The plaintiff
“depended on his cane to ensure he could move safely
within the given limit[s].” (Complaint (Doc. No. 1) at
about May 6, 2014, the plaintiff was walking from the
recreational building to his housing unit with the assistance
of his cane. He had ten minutes to complete the move. The
plaintiff was stopped by Correctional Officer Patterson.
Patterson had on numerous previous occasions seen the
plaintiff with the cane. On this occasion, however, Patterson
seized the plaintiff's cane and informed him that he
still had to get back to his housing unit within the
ten-minute time limit.
the plaintiff's plea that he could not safely walk to his
housing unit without his cane, Patterson did not allow him to
keep it. A copy of the Medical Duty Status Sheet
(“MDSS”) authorizing the plaintiff to have the
cane was taped to the cane. Patterson took the cane without
checking the MDSS. He threatened to write up the plaintiff
for being “out of bounds” if he did not return to
his housing unit within the ten-minute time limit.
plaintiff climbed the stairs to his housing unit, his knee
gave out as he was almost at the top, causing him to fall.
The plaintiff was severely injured as a result. That day, the
cane was returned to the plaintiff.
3, 2015, the plaintiff filed a Request for Administrative
Remedy, which was denied on June 19, 2015. On August 26,
2015, the plaintiff filed an Administrative Tort Claim, which
was denied on October 8, 2015. The plaintiff subsequently
commenced this action on April 8, 2016.
district court properly dismisses an action under
Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction
if the court ‘lacks the statutory or constitutional
power to adjudicate it[.]'” Cortlandt St. Recovery
Corp. v. Hellas Telecommunications, 790 F.3d 411, 416-17 (2d
Cir. 2015) (quoting Makarova v. United States, 201 F.3d 110,
113 (2d Cir. 2000)). The party asserting subject matter
jurisdiction “bears the burden of proving subject
matter jurisdiction by a preponderance of the
evidence.” Aurechione v. Schoolman Transp. Sys., Inc.,
426 F.3d 635, 638 (2d Cir. 2005). When reviewing a motion to
dismiss for lack of subject matter jurisdiction, the court
may consider evidence outside the pleadings. See Makarova,
201 F.3d at 113. In fact, “the court may resolve
disputed jurisdictional fact issues by reference to evidence
outside the pleadings, such as affidavits.” Antares
Aircraft, L.P. v. Fed. Republic of Nigeria, 948 F.2d 90, 96
(2d Cir. 1991).
a waiver, sovereign immunity shields the Federal Government
and its agencies from suit.” F.D.I.C. v. Meyer, 510
U.S. 471, 475 (1994). The FTCA is a limited waiver of
sovereign immunity by the federal government. Here, the
defendant contends that while the FTCA would otherwise apply,
the discretionary function exception bars the plaintiff's
claim. The court agrees.
to 28 U.S.C. § 2680(a), the FTCA's waiver of
sovereign immunity does not extend to any claim that is
“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.” The discretionary function exception in the
FTCA is “a form of retained sovereign immunity. As a
result, the [FTCA's] waiver of federal sovereign immunity
does not encompass actions based upon the performance of, or
failure to perform, discretionary functions.” In re
World Trade Ctr. Disaster Site Litig., 521 F.3d 169, 190 (2d
Supreme Court has applied a two-prong test to determine
whether a function is discretionary. See Berkovitz v. United
States, 486 U.S. 531, 536-37 (1998). First, a discretionary
act must be involved such that there is “an element of
judgment or choice.” United States v. Gaubert, 499 U.S.
315, 322 (1991). Discretionary acts include “day-to-day
management decisions if those decisions require judgment ...