Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-01959-MSK-PAC

Document 175

Filed 12/20/2005

Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-01959-MSK-PAC AHMED M. AJAJ, Plaintiff, v. UNITED STATES OF AMERICA, ROBERT A. HOOD, JAMES BURRELL, DAVID DUNCAN, C. CHESTER, and J.C. ZUERCHER, Defendants.

UNITED STATES' REPLY IN SUPPORT OF MOTION TO DISMISS

Defendant United States of America ("the United States"), by and through undersigned counsel, files this Reply in Support of its Motion to Dismiss Claim One Third Amended Complaint, pursuant to Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6).1 ARGUMENT A. The Court Lacks Jurisdiction Over Claim One Because Plaintiff Did Not Timely Raise an FTCA Claim Against the United States in Federal District Court. Plaintiff does not contest the legal authority that the United States presented in its Motion to Dismiss concerning the requirements for timely presenting an administrative tort claim to a federal

In its Motion to Dismiss, the United States inadvertently characterized its discretionary function argument as depriving this Court of jurisdiction over Claim One under Fed. R. Civ. P. 12(b)(1). When a jurisdictional question is intertwined with the merits of the case, a court must convert a Rule 12(b)(1) motion to one under Rule 12(b)(6) or Rule 56. Franklin Savings Corp. v. United States, 180 F.3d 1124, 1129-30 (10th Cir. 1999). Whether the discretionary function exception applies is such a question. Id. Because the United States did not attach any documents to its Motion to Dismiss, and the Court will not consider any documents outside the pleadings in ruling on this motion, this motion is properly treated as a Rule 12(b)(6) motion (rather than one under Rule 56). Tippett v. United States, 108 F.3d 1194, 1996 (10th Cir. 1997).

1

Case 1:03-cv-01959-MSK-PAC

Document 175

Filed 12/20/2005

Page 2 of 11

agency and for raising an FTCA claim in federal district court. (Response, at 2-3). Instead, Plaintiff makes two arguments for why he has timely filed an FTCA claim. First, Plaintiff asserts that "Defendant argues out of both sides of its mouth in order to argue that the FTCA claim is barred." (Response, at 6). Plaintiff points out that for the purposes of moving to dismiss Claim One based upon Claim TRT-NCR-2003-00329, the United States asserts that the operative date is December 17, 2003 (i.e., the date that Plaintiff filed his First Amended Complaint and raised an FTCA claim for the first time). Plaintiff points out that for the purposes of moving to dismiss Claim One based upon Claim TRT-NCR-2004-727, the United States asserts that the operative date is October 3, 2003 (i.e., the date that Plaintiff initiated this civil action by filing his original Complaint). Plaintiff claims that he timely raised an FTCA claim in federal district court because only one date ­ either October 3, 2003 or December 17, 2003 ­ can control the timeliness issue. Second, although the original Complaint filed on October 3, 2003 failed to raise a FTCA claim, Plaintiff argues that this claim was timely raised because his First Amended Complaint, which raised an FTCA claim, "relates back" to the original Complaint. Because the original Complaint was filed on October 3, 2003 (i.e., within six months of the denial of Claim TRT-NCR2003-00329), Plaintiff argues that he has timely raised an FTCA claim in federal court. Both arguments lack merit. Thus, the Court should dismiss Claim One for lack of jurisdiction in accordance with Fed. R. Civ. P. 12(b)(1). 1. There Are Two Separate Requirements for Filing an FTCA Claim in Federal Court: the Six-Month Time Period for Timely "Raising" a Claim and the Requirement that a Plaintiff Must First Exhaust Administrative Remedies Prior to "Instituting" a Lawsuit. In raising an FTCA claim in federal district court, a plaintiff must adhere to two separate requirements. First, a plaintiff must adhere to the exhaustion requirement set out at 28 U.S.C. 2

Case 1:03-cv-01959-MSK-PAC

Document 175

Filed 12/20/2005

Page 3 of 11

§ 2675(a). That part of the statute states that a plaintiff cannot "institute" a civil "action" with an FTCA claim in federal district court until he has received a final denial of his administrative tort claim. If a plaintiff "institutes" a lawsuit before an administrative tort claim has been exhausted, and then exhausts his remedies for that administrative tort claim, a plaintiff cannot simply cure the jurisdictional defect and amend his Complaint to add on an FTCA claim. 28 U.S.C. § 2675(a); McNeil v. United States, 508 U.S. 106, 110-13 (1993). Second, a plaintiff must adhere to the timeliness requirement for "raising" a claim in federal district court set out at 28 U.S.C. § 2401(b). That statute states that a plaintiff must "raise" an FTCA claim within six months of the agency's denial of the administrative tort claim, or the FTCA claim is time-barred. 28 U.S.C. § 2401(b). In the case at bar, Plaintiff presents two separate administrative tort claims as evidence that he exhausted his administrative remedies for his FTCA claim: Claim TRT-NCR-2003-00329 and Claim TRT-NCR-2004-727. (Third Amended Complaint, at Ex. 1). However, as the United States explained in its Motion to Dismiss, neither of these claims satisfies both the exhaustion requirement of 28 U.S.C. § 2675(a) and the timeliness requirement of 28 U.S.C. § 2401(b). Plaintiff cannot rely on Claim TRT-NCR-2004-727 because Plaintiff had not exhausted that administrative tort claim prior to "institution" of this lawsuit, as required by 28 U.S.C. § 2675(a). Plaintiff instituted this lawsuit on October 3, 2003 by filing his original Complaint. (Docket No. 3). Plaintiff only exhausted his remedies for Claim TRT-NCR-2004-727 on December 9, 2003. Plaintiff cannot circumvent the exhaustion requirement set out in 28 U.S.C. § 2675(a) by arguing that he exhausted his administrative tort claim on December 9, 2003, but did not bring an FTCA claim against the United States until 8 days later on December 17, 2003 when he filed his First Amended Complaint. The civil action had already been "instituted" over two months earlier on 3

Case 1:03-cv-01959-MSK-PAC

Document 175

Filed 12/20/2005

Page 4 of 11

October 3, 2003. This was precisely the problem that the Supreme Court was addressing in McNeil v. United States, 508 U.S. at 110-113, when it held that Section 2675(a) bars claimants from bringing suit in federal court until they have exhausted their administrative remedies. Thus, to the extent that Plaintiff cites Claim TRT-NCR-2004-727 to prove exhaustion of his FTCA claim, the Court lacks jurisdiction over Claim One because he had not exhausted his remedies before commencing this lawsuit. 28 U.S.C. § 2675(a). To the extent that Plaintiff relies on Claim TRT-NCR-2003-00329 to prove exhaustion, then Claim One is time-barred by the six-month statute of limitations set forth at 28 U.S.C. § 2401(b). "`A district court does not have jurisdiction to hear a tort claim against the United States unless the claimant files a complaint in federal court within six months after final agency decision.'" Esposito v. United States, 368 F.3d 1271, 1274 (10th Cir. 2004) (citation omitted). Plaintiff did not file an FTCA claim in federal district court when he filed his original Complaint on October 3, 2003. Rather, the first time that Plaintiff raised such a claim in federal district court was December 17, 2003. Because Plaintiff did not "raise" an FTCA claim until more than eight months after the Bureau denied Claim TRT-NCR-2003-00329, Claim One is untimely and the Court must dismiss it for lack of jurisdiction. 28 U.S.C. § 2401(b); see also Franklin Savings Corp., 385 F.3d at 1287; Benge v. United States, 17 F.3d 1286, 1288 (10th Cir. 1994). Plaintiff's argument concerning the United States' reliance on two different dates for explaining why the FTCA claim was not timely filed in federal district court misses the mark. There is a difference between the exhaustion-before-institution requirement of 28 U.S.C. § 2675(a), and the six-month requirement of 28 U.S.C. § 2401(b) for raising a timely FTCA claim in federal court after exhaustion. Plaintiff's argument, however, conflates these two separate requirements. 4

Case 1:03-cv-01959-MSK-PAC

Document 175

Filed 12/20/2005

Page 5 of 11

Essentially, Plaintiff seeks to have this Court decide that only one date controls: either December 17, 2003 (the date that Plaintiff first "raised" an FTCA claim) or October 3, 2003 (the date that the above-captioned civil action was "instituted"). However, both requirements must be met by an administrative tort claim for this Court to exercise jurisdiction over Claim One. Claim TRT-NCR2004-727 fails the exhaustion of administrative remedies before "institution" requirement set forth at 28 U.S.C. § 2675(a). Claim TRT-NCR-2003-00329 fails the six-month requirement set forth at 28 U.S.C. § 2401(b). Thus, because neither of the administrative tort claims proffered by Plaintiff prove that he exhausted his administrative remedies before filing suit and timely raised an FTCA claim in federal district court, Plaintiff cannot demonstrate that he has satisfied the jurisdictional requirements of 28 U.S.C. § 2675(a) and 28 U.S.C. § 2401(b) for his FTCA claim. Accordingly, the Court lacks jurisdiction over Claim One, and must dismiss it from this lawsuit. 2. Plaintiff Cannot Argue that Claim One was Timely Raised Under 28 U.S.C. § 2401(b) Because None of His Amended Complaints "Relates Back" to the Original Complaint. Plaintiff attempts to circumvent the Section 2401(b)'s timing requirement for raising an FTCA claim in federal district court within six months by arguing that the First Amended Complaint "relates back" to the original Complaint. (Response, at p. 7-8). The FTCA claim raised in the First Amended Complaint on December 17, 2003 was raised more than six months after he exhausted Claim TRT-NCR-2003-00329 on April 16. 2003. However, Plaintiff argues that if the FTCA claim included in the First Amended Complaint "relates back" to the claims presented in the original Complaint filed on October 3, 2003 (i.e., within the six-month time period following the denial of Claim TRT-NCR-2003-00329), then Plaintiff gets the benefit of having timely raised an

5

Case 1:03-cv-01959-MSK-PAC

Document 175

Filed 12/20/2005

Page 6 of 11

FTCA claim in federal district court and cannot be time-barred by 28 U.S.C. § 2401(b). This argument must fail. Under Fed. R. Civ. P. 15(c)(2), an amended complaint may "relate back" to the date of the original pleading for purposes of the applicable statute of limitations when "the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth in or attempted to set forth in the original pleading." Fed. R. Civ. P. 15(c)(2) (emphasis added). Plaintiff cannot argue that the FTCA claim raised in his First Amended Complaint filed on December 17, 2003 "relates back" to the original Complaint filed on October 2, 2003.2 In his original Complaint, Plaintiff named Robert Hood, Les Smith, and Lisa Braren as defendants. Plaintiff alleged that these federal officers had violated his rights under the First, Fourth Fifth, Sixth, and Eighth Amendments by interfering with his mail and confiscating his legal and personal property. (Docket No. 3, at pp. 4-6a). The original Complaint contained no FTCA claim against the United States. For that matter, the original Complaint did not contain any factual allegations about the failure to follow doctor's orders, Plaintiff's placement at the ADX, or Plaintiff's placement in a harmful environment. Because the facts in the original pleading differ so widely from the facts surrounding the FTCA claim, Plaintiff cannot argue that his FTCA claim "arose out of the conduct, transaction, or occurrence set forth in . . . in the original pleading." Fed. R. Civ. P. 15(c). Plaintiff's FTCA claim for negligent classification ­ though administratively exhausted through TRT-NCR2003-00329 ­ must be considered time-barred by the six-month statute of limitations set forth in 28 U.S.C. § 2401(b) because there is no relation back.
2

Nor, for that matter, can Plaintiff argue that the FTCA claims raised in his Second Amended Complaint filed on October 15, 2004 and Third Amended Complaint filed on October 17, 2005 "relate back" to the original Complaint. 6

Case 1:03-cv-01959-MSK-PAC

Document 175

Filed 12/20/2005

Page 7 of 11

B.

The Discretionary Function Exception Applies to Claims by Inmates Alleging Negligent Placement, and Thus, Claim One Must Be Dismissed Pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff argues that the discretionary function exception to the FTCA, found at 28 U.S.C.

§ 2680(a), does not apply to Claim One. (Response, at 3-6). Plaintiff begins by arguing that he is not asserting a negligent placement claim, but a claim that the United States negligently failed to follow a doctor's alleged medical instructions by not placing him in a suitable environment. Plaintiff appears to argue that 18 U.S.C. § 4042 imposes a non-discretionary duty of care on the Bureau to safeguard inmates, such that the discretionary function exception does not apply to conduct by the Bureau concerning the safekeeping of inmates. Thus, Plaintiff concludes that because he is asserting a claim for failure to follow a doctor's instructions, and the duty of care imposed by Section 4042 is non-discretionary, the discretionary function exception does not apply to his FTCA claim. For the reasons set forth below, the Court should reject this argument and dismiss this claim. 1. Claim One of the Complaint Asserts that Plaintiff's Placement at the ADX was Negligent. Plaintiff first takes issue with the United States' characterization of his FTCA claim as one for negligent placement. (Id. at 5). Instead, Plaintiff argues that he is asserting a claim for the breach of the general duty of care owed to inmates by 18 U.S.C. § 4042(a)(2)-(3). (Id. at 5-6). More specifically, Plaintiff alleges that his FTCA claim is one for "negligently failing to [a] follow doctor's instructions and provide Plaintiff with a suitable environment." (Id.) Plaintiff can style his FTCA claim as one asserting a breach of the duty of care under 18 U.S.C. §§ 4042(a)(2) and (3), but the conduct that allegedly breached that duty of care is the Bureau's decision to place Plaintiff at the ADX (as opposed to another federal institution operated 7

Case 1:03-cv-01959-MSK-PAC

Document 175

Filed 12/20/2005

Page 8 of 11

by the Bureau that was allegedly more "suitable" to Plaintiff's medical needs). Plaintiff acknowledges this on the face of his Response brief by stating that the negligent conduct he is challenging is his placement at an institution with an unsuitable environment. Thus, Claim One of the Complaint is asserting a claim for negligent placement. 2. The Discretionary Function Exception Applies to Claims Challenging an Inmate's Placement at an Institution as Negligent. Plaintiff argues that the Tenth Circuit has recognized that some decisions or non-decisions, although involving an element of choice, do not fall within the FTCA's discretionary function exception. (Response, at 4). Plaintiff appears to be asserting that the Bureau's discretionary decision to place Plaintiff at the ADX falls outside of the discretionary function exception because the Bureau's duty to safeguard an inmate under 18 U.S.C. § 4042 is a non-discretionary duty. (Id.) Therefore, the issue that the Court must decide is whether the decision to place an inmate at a particular institution falls within the discretionary function exception, or whether Section 4042 precludes the United States from asserting the discretionary function exception because that duty of care is "non-discretionary." Citing to Jones v. United States, 91 F.3d 623, 625 (3rd Cir. 1996), Plaintiff attempts to argue that the Bureau's decision to place an inmate at a particular institution falls outside the discretionary function exception because 18 U.S.C. § 4042 imposes a non-discretionary duty of care upon the Bureau. (Response, at 5-6). Jones involved a medical malpractice claim for failure to provide medicine. 91 F.3d at 624. The district court found that the plaintiff-inmate had failed to produce evidence that the United States owed him a duty of care, and therefore, granted summary judgment to the United States on the FTCA claim. Id. The Third Circuit reversed the district court, noting

8

Case 1:03-cv-01959-MSK-PAC

Document 175

Filed 12/20/2005

Page 9 of 11

that whether a defendant owes a plaintiff a duty of care is a question of law that does not require evidentiary proof, and that as a matter of law, the United States owed a duty of care to the plaintiffinmate under 18 U.S.C. § 4042. Id. at 624-25. Significantly, Jones did not address whether the placement of inmates at a particular institution fell within the discretionary function exception. Nor did Jones address whether the duty of care owed under Section 4042 is "non-discretionary" such that it is removed from the discretionary function exception. Several circuits have held that 18 U.S.C. § 4042 does not impose a non-discretionary duty on the Bureau (i.e., that Bureau personnel have sufficient discretion about how to accomplish their Section 4042 duty of care as to warrant application of the discretionary function exception). See, e.g., Cohen v. United States, 151 F.3d 1338, 1343 (11th Cir. 1998) (rejecting argument by plaintiffinmate that Section 4042 imposes a non-discretionary duty of care on the Bureau such that the discretionary function exception is inapplicable); Calderon v. United States, 123F.3d 947, 950 (7th Cir. 1997) (holding that the general duty of care set forth in Section 4042 does not prevent the government from invoking the discretionary function exception in an FTCA case arising from a prisoner-on-prisoner attack). Moreover, two statutory provisions vest the Bureau with discretion in classifying inmates and placing them at particular institutions: 18 U.S.C. § 4081 and 18 U.S.C. § 3621. The first statute states, in relevant part, that the Bureau should classify inmates "according to the nature of the offenses committed, the character and mental condition of the prisoners, and such other factors as should be considered in providing an individualized system of discipline, care, and treatment of persons committed to [federal] institutions." 18 U.S.C. § 4081. Section 3621 grahts the Bureau authority to "designate any available penal or correctional facility . . . that the Bureau determines to 9

Case 1:03-cv-01959-MSK-PAC

Document 175

Filed 12/20/2005

Page 10 of 11

be appropriate and suitable. " 18 U.S.C. § 3621. Neither of these statutory provisions mandate a specific, non-discretionary course of conduct for the Bureau to follow in classifying inmates. Rather, both statutes provide the Bureau with ample room for judgment. Therefore, because the discretionary function exception, 28 U.S.C. § 2680(a), applies to claims alleging negligence in classification and placement at a particular Bureau institution, the Court must dismiss Claim One, in accordance with Fed. R. Civ. P. 12(b)(6). CONCLUSION For the foregoing reasons, Defendant United States of America respectfully requests that the Court dismiss Claim One of the Third Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6). Respectfully submitted this 20th day of December, 2005. WILLIAM J. LEONE United States Attorney

s/ Amanda Rocque Amanda Rocque Assistant United States Attorney 1225 17th Street, Suite 700 Denver, CO 80202 Telephone: (303) 454-0109 Facsimile: (303) 454-0404 Email: [email protected] Attorneys for Defendants

10

Case 1:03-cv-01959-MSK-PAC

Document 175

Filed 12/20/2005

Page 11 of 11

CERTIFICATE OF SERVICE I hereby certify that on this 20th day of December, 2005, I electronically filed the foregoing UNITED STATES' REPLY IN SUPPORT OF MOTION TO DISMISS with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Michael E. Hegarty [email protected] [email protected] Patrick Terrence O'Rourke [email protected] [email protected];[email protected] Carmen Nicole Reilly [email protected] [email protected] s/Amanda Rocque Amanda Rocque 1225 Seventeenth Street, Suite 700 Denver, CO 80202 Telephone: (303) 454-0100 Facsimile: (303) 454-0404 E-mail: [email protected] I hereby certify that on this 20th day of December, 2005, I served the foregoing on the following non-CM/ECF participants via U.S. mail: Agency Counsel, as designated agent for and on behalf of individual Defendants: Christopher Synsvoll, Esq. Benjamin Brieschke, Esq. Federal Correctional Complex P.O. Box 8500 5880 Highway 67 South Florence, CO 81226

s/ Valerie Nielsen Valerie Nielsen Office of the United States Attorney

11