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Sanchez-Mercedes v. United States

United States District Court, D. Connecticut

February 24, 2017

ISAEL SANCHEZ-MERCEDES, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          RULING ON MOTION TO DISMISS

          Alvin W. Thompson, United States District Judge

         The 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.

         I. FACTUAL BACKGROUND

         The 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 ¶ 12.)

         On or 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.

         Despite 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.

         As the 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.

         On June 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.

         II. LEGAL STANDARD

         “A 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).

         III. DISCUSSION

         “Absent 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.

         Pursuant 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 Cir.2008).

         The 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 ...


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