Free Motion to Dismiss/Lack of Jurisdiction - District Court of Colorado - Colorado

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

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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 OF AMERICA'S MOTION TO DISMISS CLAIM ONE OF THE THIRD AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(1)

Defendant United States of America ("the United States"), by and through undersigned counsel, files this Motion to Dismiss Claim One Third Amended Complaint (Docket No. 160), pursuant to Fed. R. Civ. P. 12(b)(1). The United States certifies that, pursuant to D.C.Colo.LCivR. 7.1(A), undersigned counsel discussed this Motion to Dismiss with Plaintiff's counsel on October 25, 2005. Plaintiff's counsel represented that Plaintiff opposes this motion. OVERVIEW The United States requests that the Court dismiss Claim One of the Third Amended Complaint, which is the only claim raised against it. In Claim One, Plaintiff

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Ahmed Ajaj ("Plaintiff") claims that the United States is liable under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671 et seq., for alleged negligence of its employees. (Third Amended Complaint, at ¶¶ 37-50). More specifically, Claim One is raising a negligent placement claim for Plaintiff's incarceration in an allegedly harmful environment at the United States Penitentiary, Administrative Maximum ("ADX") in Florence, Colorado. (Id.) The Court lacks jurisdiction over Claim One for several reasons. First, Claim One falls squarely under the discretionary function exception of the FTCA, 28 U.S.C. § 2680(a). That provision is an exception to the government's limited waiver of sovereign immunity under the FTCA. Because there is no waiver of sovereign immunity for an inmate to sue the United States for alleged negligent placement at a particular institution, the Court lacks jurisdiction over Claim One. Second, the Court lacks jurisdiction over Claim One because the claim was not filed in federal district court within the requisite timeframe set by the FTCA, and thus, is barred. Plaintiff cites to two separate administrative tort claims as proof that he has exhausted his administrative remedies prior to bringing his FTCA claim before this Court: Claim TRT-NCR-2003-00329 and Claim TRT-NCR-2004-727. Plaintiff cannot rely on Claim TRT-NCR-2003-00329 for the purposes of proving exhaustion of his remedies, because Plaintiff did not raise an FTCA claim in federal district court in a timely manner (i.e., within six months of receiving the Notice of Denial of Claim TRT-NCR-2003-00329 from the Bureau). Plaintiff cannot rely

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on Claim TRT-NCR-2004-727 for purposes of proving exhaustion because Plaintiff had not exhausted his administrative remedies for this administrative tort claim (much less filed this claim with the Bureau) when he initiated this lawsuit in federal district court, as required by 28 U.S.C. § 2675(a). Accordingly, because the Court lacks jurisdiction over Claim One, it must dismiss this claim and the United States from this lawsuit, pursuant to Fed. R. Civ. P. 12(b)(1). BACKGROUND A. Plaintiff's Present Lawsuit. Plaintiff initiated this lawsuit on October 3, 2003 by filing a Complaint in federal court. (Docket No. 3). Plaintiff then filed his First Amended Complaint on December 17, 2003. (Docket No. 14). Defendants filed several motions to dismiss the First Amended Complaint. On October 15, 2004, the Court granted Plaintiff leave to file a Second Amended Complaint. (Docket No. 101). Plaintiff filed a Second Amended Complaint on December 13, 2004. (Docket No. 109). Defendants filed motions to dismiss the Second Amended Complaint. (Docket Nos. 122 and 123). On September 27, 2005, the Court issued an Order granting Plaintiff leave to file a Third Amended Complaint. (Docket No. 158). Plaintiff filed a Third Amended Complaint on October 17, 2005. (Docket No. 160). In Claim One of his Third Amended Complaint, Plaintiff raises an FTCA claim

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against Defendant for alleged negligence of its employees. (Third Amended Complaint, at ¶¶ 37-50). Plaintiff alleges that the United States has breached the duty of care owed to Plaintiff by negligently placing him at the ADX. Plaintiff claims that his placement at the ADX violates alleged medical instructions that he be placed in a smoke-free environment at low altitude. (Id. at 39, 43, 45-47). II. Plaintiff's Efforts to Exhaust Administrative Remedies for His Tort Claim. Prior to filing an FTCA claim in federal court, an inmate must exhaust his administrative remedies by filing an administrative tort claim (commonly referred to as Standard Form 95) with the Bureau of Prisons. Industrial Constructors Corp. v. United States Bureau of Reclamation, 15 F.3d 963, 967 (10 th Cir. 1994); 28 U.S.C. § 2675(a). Plaintiff cites to and attaches two administrative tort claims to his Third Amended Complaint: Claim TRT-NCR-2003-00329 and Claim TRT-NCR-2004-727. (Third Amended Complaint, at Ex. 1). These two administrative tort claims address Plaintiff's complaints about his placement at the ADX, and allege that his placement at that institution was negligent because it allegedly ignores medical instructions that he be incarcerated in a smoke-free environment at a prison located at low altitude. (Id.) With respect to Claim TRT-NCR-2003-00329, Plaintiff filed this claim on October 23, 2002, and received a final denial of the claim from the Bureau on April 16, 2003. (Id.) With respect to Claim TRT-NCR-2004-727, Plaintiff filed this claim on November 11, 2003, and received a final denial of this claim from the Bureau on December 9, 2003. (Id.)

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STANDARD OF REVIEW A Motion to Dismiss under Rule 12(b)(1) attacks the existence of jurisdiction rather than the allegations of the complaint. Dismissal of an action is appropriate when the district court lacks subject matter jurisdiction over the action. Fed. R. Civ. P. 12(b)(1). When considering a Rule 12(b)(1) motion, the Court may consider matters outside the pleadings without transforming the motion into one for summary judgment. Holt v. United States, 46 F.3d 1000, 1003 (10 th Cir. 1995) (citations omitted). Where a party challenges the facts upon which subject matter jurisdiction depends, a district court may not presume the truthfulness of the complaint's factual allegations and has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under the Rule. Id. ARGUMENT I. PLAINTIFF BEARS THE BURDEN OF PROVING JURISDICTION. The party invoking federal jurisdiction bears the burden of proof as to jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Sac & Fox Nation v. Cuomo, 193 F.3d 1162, 1165 (10 th Cir. 1999). When the question at issue is one involving the jurisdiction of a federal court, jurisdiction must be shown by the plaintiff affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it. Sac & Fox, 193 F.3d at 1168. "It is to be presumed that a cause lies outside [the court's] limited jurisdiction, and the burden of establishing

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the contrary rests upon the party asserting jurisdiction." Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994) (citations omitted). Thus, Plaintiff bears the burden of proving that the Court has jurisdiction over his FTCA claim. II. THE COURT LACKS JURISDICTION OVER PLAINTIFF'S CLAIM THAT THE UNITED STATES HAS NEGLIGENTLY PLACED HIM AT THE ADX. The Court Lacks Jurisdiction Over Claim One Because the United States Has Not Waived Sovereign Immunity to Be Sued for Negligent Placement. The United States is presumed to be immune from suit unless it expressly waives its immunity or consents to suit. F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). However, the FTCA's broad waiver of sovereign immunity is subject to several enumerated exceptions. 28 U.S.C. § 2680(a)-(n). The exception of the FTCA that is applicable to Plaintiff's FTCA claim challenging his negligent placement at ADX is 28 U.S.C. § 2680(a). That provision of the FTCA precludes government liability for "[a]ny claim 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 be abused." 28 U.S.C. § 2680(a). Section 2680(a), like every other exception in 28 U.S.C. § 2680, limits the United States' waiver of sovereign immunity. "It therefore poses a jurisdictional prerequisite to suit, which Plaintiff must ultimately meet as part of his overall burden to establish subject matter jurisdiction." Baird v. United States, 653 F.2d 437, 440 (10 th Cir. 1981); see also 6

A.

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Barnson v. United States, 531 F. Supp. 614, 619 (D. Utah 1982), aff'd, 816 F.2d 549 (10 th Cir. 1987) (holding that "[t]he rule in the Tenth Circuit is clearly that all section 2680 exceptions are jurisdictional"). The United States Supreme Court has formulated a two-part test to determine whether a governmental act falls within the discretionary function exception. First, a court must ask whether the act involves "an element of judgment or choice." United States v. Gaubert, 499 U.S. 315, 322 (1991) (quotation marks omitted). If the answer to that question is "yes," then the court must ask "whether that judgment is of the kind that the discretionary function exception was designed to shield." Id. at 322-23 (quotation marks omitted). Under this step, the court determines whether the judgment is grounded in social, economic, or political policy. Id. at 323. If the judgment of the governmental official is based on any of these policy considerations, then the discretionary function exception applies and the claim is barred. In applying this two-step inquiry, it is clear that the decision to place Plaintiff at the ADX ­ as opposed to another Bureau institution ­ is a discretionary decision that falls under the discretionary function exception to the FTCA. First, the decision to place an inmate at a particular institution is left to the discretion of the Bureau. The power to determine the location of imprisonment rests exclusively with the Bureau of Prisons. 18 U.S.C. § 3621(b). In fact, the Bureau may direct a federal inmate's placement in any available correctional facility and may transfer an inmate between facilities at any time.

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18 U.S.C. § 3621(b); see also Thunder v. Gunja, No. 03-cv-01575-REB-OES, 2005 WL 2141068 (D. Colo. Aug. 11, 2005) (Attached as Exhibit 1) (holding that "prison officials retain broad discretion over the assignment and issues concerning the housing of inmates") (citing Twyman v. Crisp, 584 F.2d 352, 356-57 (10 th Cir. 1978)). This authority is vested by statute and exercised in accordance with a statute. Therefore, the discretionary decision to house Plaintiff at ADX is exercised in accordance with 18 U.S.C. § 3621(b). Second, numerous courts have held that an inmate's classification at a particular institution is a judgment "of the kind that the discretionary function exception was designed to shield" and thus, held that such decisions fall within the discretionary function exception to the FTCA. Santana-Rosa v. United States, 335 F.3d 39, 44 (1 st Cir. 2003) (holding that classification and assignment decisions, as well as allocation of correctional staff, fall within discretionary-function exception); Dykstra v. Bureau of Prisons, 140 F.3d 791, 796 (8 th Cir. 1998) (holding that determination as to whether to place an inmate in protective custody fell under the discretionary function exception); Cohen v. United States, 151 F.3d 1338, 1344 (11 th Cir. 1998) (rejecting proposition that prisoner who has been attacked by another can bring a claim based upon allegations that "the BOP was negligent in classifying the prisoner who committed the assault and placing him in the institution at which the attack occurred"); Calderon v. United States, 123 F.3d 947, 949-50 (7 th Cir. 1997) (same).

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Because Claim One is barred by the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a), there is no waiver of sovereign immunity and the Court lacks jurisdiction. Accordingly, Claim One must be dismissed from this lawsuit pursuant to Fed. R. Civ. P. 12(b)(1). B. The Court Lacks Jurisdiction Over Claim One Because This Claim Was Not Filed in Federal District Court Within the Requisite Timeframe Set by the FTCA. In his Third Amended Complaint, Plaintiff argues that he has exhausted his administrative remedies for raising a negligent placement claim under the FTCA. (Third Amended Complaint, at ¶ 39 and Ex. 1). Specifically, Plaintiff cites to Claim TRT-NCR2003-00329 and Claim TRT-NCR-2004-727. (Id.) For the reasons set forth below, neither of these administrative tort claims is sufficient to prove exhaustion of Claim One within the requisite timeframe set by the FTCA. To the extent that Plaintiff relies on Claim TRT-NCR-2003-00329, then Claim One is time-barred by the six-month statute of limitations set forth at 28 U.S.C. § 2401(b) because Plaintiff did not raise such a claim in federal district court until more than eight months after the Bureau denied his administrative tort claim. To the extent that Plaintiff relies on Claim TRT-NCR-2004-727, then the Court lacks jurisdiction over Claim One because Plaintiff had not exhausted Claim TRT-NCR-2004-727 prior to commencement of this lawsuit, as required by 28 U.S.C. § 2675(a). Because Plaintiff cannot show that he has properly exhausted his administrative remedies for raising Claim One, the Court lacks

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jurisdiction over this FTCA claim and must dismiss it, pursuant to Fed. R. Civ. P. 12(b)(1). 1. Plaintiff Cannot Rely on Claim TRT-NCR-2003-00329 to Prove Exhaustion of His Administrative Remedies for Claim One, Since This FTCA Claim Was Not Timely Raised in Federal District Court Within Six Months of Denial of the Administrative Tort Claim.

Federal law bars any tort claim against the United States unless it is presented to the appropriate federal agency, in writing, within two years of the claim's accrual, and it is filed in federal district court within six months after notice of denial of the claim by that agency. 28 U.S.C. § 2401(b) ("[A] tort claim against the United States shall be forever barred unless . . . action is begun within six months after the date of mailing . . . of notice of final denial of the claim by the [appropriate federal] agency to which it was presented."); see also Franklin Savings Corp., 385 F.3d at 1287; Plaza Speedway, 311 F.3d at 1266. A court lacks subject matter jurisdiction over a claim if a plaintiff fails to satisfy the FTCA's timing requirements, as set forth in 28 U.S.C. § 2401(b). Franklin Savings Corp., 385 F.3d at 1287; Benge v. United States, 17 F.3d 1286, 1288 (10 th Cir. 1994). In the case at bar, Plaintiff exhausted his administrative remedies concerning his allegedly negligent classification to ADX by filing and exhausting Claim TRT-NCR2003-00329. (Third Amended Complaint, at Ex. 1). Plaintiff alleged that he had been placed in a "harmful environment" due to "repeated exposure to high, smoke, and cold environment." (Id.) 10

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However, Plaintiff cannot rely on his exhaustion of Claim TRT-NCR-2003-00329 because he untimely raised his FTCA claim in federal court. Plaintiff received a final denial of Claim TRT-NCR-2003-00329 from the Bureau on April 16, 2003. (Id.) In accordance with 28 U.S.C. § 2401(b), Plaintiff had six months from that date in which to raise his FTCA claim in federal district court. However, Plaintiff did not raise such an FTCA claim in federal district court until eight months later when filed his First Amended Complaint on December 17, 2003. (Docket No. 14.) Thus, because Plaintiff did not raise an FTCA claim in federal court within six months, as required by 28 U.S.C. § 2401(b), Plaintiff cannot rely on Claim TRT-NCR-2003-00329 to prove that he exhausted Claim One, prior to raising it in federal court.1

Plaintiff may attempt to argue that his FTCA claim for negligent placement, as raised in his Third Amended Complaint dated October 17, 2005, "relates back" to the original Complaint dated October 2, 2003. An amendment to a complaint "relates 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). In his original Complaint, Plaintiff named Robert Hood, Les Smith, and Lisa Braren as defendants. Plaintiff alleged that these federal officers had violated his constitutional 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, Complaint, 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 in the Third Amended Complaint, Plaintiff cannot argue that Claim One relates back to the original Complaint. Accordingly, Plaintiff's claim for negligent classification ­ though administratively exhausted ­ 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. 11

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2.

Plaintiff Cannot Rely on TRT-NCR-2004-727 to Prove Exhaustion of Claim One Because He Had Not Exhausted This Administrative Tort Claim When He Commenced This Lawsuit on October 2, 2003.

A civil action raising a claim under the FTCA shall not be "instituted" until a plaintiff has fully exhausted his administrative remedies. 28 U.S.C. § 2675(a). In McNeil v. United States, 508 U.S. 106 (1993), the Supreme Court held that a plaintiff who exhausted his administrative remedies for a FTCA claim ­ but did not exhaust these remedies until well after the lawsuit had been initiated ­ was barred from raising that FTCA claim under 28 U.S.C. § 2675(a). McNeil, 508 U.S. at 110-13. The Tenth Circuit has also weighed in on this issue, noting that as a general rule, a premature complaint cannot be cured through amendment, but instead, plaintiff must file a new suit. Allowing claimants generally to bring suit under the FTCA before exhausting their administrative remedies and to cure the jurisdictional defect by filing an amended complaint would render the exhaustion requirement meaningless and impose an unnecessary burden on the judicial system. Duplan v. Harper, 188 F.3d 1195, 1199 (10 th Cir. 1999); see also Haceesa v. United States, 309 F.3d 722, 733 (10 th Cir. 2002). Plaintiff cannot raise Claim One before this Court by relying on his exhaustion of Claim TRT-NCR-2004-727. Plaintiff commenced this lawsuit, for the purposes of 28 U.S.C. § 2675(a), when he filed his original Complaint on October 2, 2003. (Docket No. 3.) However, Plaintiff did not exhaust Claim TRT-NCR-2004-727 until he received a final denial of this administrative tort claim from the Bureau on December 9, 2003.

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(Third Amended Complaint, at Ex. 1). Thus, Plaintiff had not even taken the first step toward exhausting his administrative remedies by filing Claim TRT-NCR-2004-727 with the Bureau when he first initiated this lawsuit. Pursuant to section 2675(a), Plaintiff cannot rely on Claim TRT-NCR-2004-727 as proof that he has administratively exhausted Claim One of his Third Amended Complaint. McNeil, 508 U.S. at 110-13; Duplan, 188 F.3d at 1199; Haceesa, 309 F.3d at 733. Moreover, for obvious reasons, the Court should not allow inmates to simultaneously file a lawsuit and an administrative tort claim with the agency. To hold otherwise would eviscerate the exhaustion requirements imposed by Congress. In sum, neither of the administrative tort claims proffered by Plaintiff as proof that he timely exhausted his administrative remedies for Claim One are sufficient. Plaintiff cannot demonstrate that he has exhausted his FTCA claim. Accordingly, the Court lacks jurisdiction over Claim One, and must dismiss it from this lawsuit. CONCLUSION For the foregoing reasons, Defendant United States of America respectfully requests that the Court dismiss Claim One of the Third Amended Complaint for lack of jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1).

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Respectfully submitted this 31 st day of October, 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

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CERTIFICATE OF SERVICE I hereby certify that on this 31 st day of October, 2005, I electronically filed the foregoing UNITED STATES' MOTION TO DISMISS CLAIM ONE OF THE THIRD AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(1) 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 31 st day of October, 2005, I served the foregoing UNITED STATES' MOTION TO DISMISS CLAIM ONE OF THE THIRD AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(1) via U.S. mail: Agency Counsel, as designated agent for and on behalf of individual Defendants: Christopher Synsvoll, 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 15