McLain v. Howard

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ROBERT RAY McLAIN, : Plaintiff : : No. 1:22-cv-0100 v. : : (Judge Rambo) UNITED STATES, : Defendant :

MEMORANDUM

Plaintiff Robert Ray McLain initiated the above-captioned pro se action under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-80. He alleges that federal officials at FCI Allenwood Medium, in White Deer, Pennsylvania, were negligent in their handling of the COVID-19 pandemic. The United States moves to dismiss McLain’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), asserting that his claims are barred by the discretionary function exception to the FTCA. The Court will deny Defendant’s motion. I. BACKGROUND In January of this year, McLain filed the instant FTCA lawsuit. (Doc. No. 1.) In his complaint, he alleges that he contracted COVID-19 and became seriously ill because prison officials failed to utilize due care with regard to protocols established to prevent the spread of this infectious disease. (See id. at 7.) He named numerous defendants, but as this Court noted in its February 10, 2022 Order (and McLain himself conceded), the only proper defendant in this FTCA action is the United States. (See Doc. No. 13 at 2 ¶ 6 (citing CNA v. United States, 535 F.3d 132, 138 n.2 (3d Cir. 2008)).)

McLain subsequently filed a host of additional motions, including requests for preemptive leave to amend, preliminary injunctive relief, appointment of counsel, criminal prosecution of FCI Allenwood staff, status updates, and multiple stays.

(See Doc. Nos. 4, 5, 18, 20, 25, 28, 30.) Those motions were eventually dismissed or denied. (See Doc. Nos. 13, 29, 31, 34.) On May 16, 2022, the United States filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) based on the FTCA’s discretionary function

exception. (Doc. No. 26.) A brief in support was filed 11 days later and served on McLain in either late May or the first week of June. (See Doc. No. 27.) The same day that Defendant filed its supporting brief, the Court received McLain’s second

motion to stay the case until counsel was appointed to represent him. (Doc. No. 28.) On July 12, 2022, the Court denied McLain’s motion for appointment of counsel and dismissed as moot his request to stay the case. (See generally Doc. No. 31.) This Order also gave McLain 21 additional days to file his brief in opposition

to Defendant’s motion to dismiss, thus creating a revised deadline of August 2, 2022. (Id. at 4 ¶ 3.) The Order was mailed the same day to McLain at FCI Schuylkill— McLain’s address of record. (See Doc. No. 30 at 3 (June 2022 correspondence from

McLain listing his current address as FCI Schuylkill).) On July 27, however, the Court received its July 12 Order return to sender as “refused, unable to forward.” (See Doc. No. 32.) The Clerk of Court performed an

online federal inmate search, determined that McLain had been transferred to RRM Philadelphia, and resent the July 12 Order to McLain at that address. (See id. & docket annotation.) On August 15, 2022, the Court received correspondence from

McLain dated August 9, 2022, providing a new mailing address for a residential reentry center in New Hampshire, (Doc. No. 33), and the Court once again resent the July 12 Order to McLain’s new address along with a printout of the docket, (see id. & docket annotation.)

McLain has failed to file a brief in opposition to Defendant’s motion to dismiss despite having nearly two months to do so within time and several additional months in which to seek an extension of time after the deadline passed. Defendant’s

motion, therefore, is deemed unopposed. See LOCAL RULE OF COURT 7.6. Nevertheless, the Court will review Defendant’s Rule 12(b)(1) motion to determine if McLain’s complaint must be dismissed for lack of subject matter jurisdiction. II. STANDARD OF REVIEW

Defendant brings a facial attack under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. (See Doc. No. 27 at 3-4.) This type of jurisdictional challenge looks only to the plaintiff’s pleadings and “does so in the

light most favorable to the plaintiff.” United States ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007) (citation omitted). A facial attack “considers a claim on its face and asserts that it is insufficient to invoke the

subject matter jurisdiction of the court[.]” Constitution Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014). Thus, in reviewing a facial attack under Rule 12(b)(1), the court applies “the same standard of review” as it would apply to a motion to

dismiss under Rule 12(b)(6): “the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff.” Id. (quoting In re Schering Plough Corp. Intron, 678 F.3d 235, 243 (3d Cir. 2012)).

III. DISCUSSION “The FTCA offers a limited waiver of the federal government’s sovereign immunity from civil liability for negligent acts of government employees acting

within the scope of their employment.” Rinaldi v. United States, 904 F.3d 257, 273 (3d Cir. 2018); see also 28 U.S.C. § 1346(b)(1). “[T]he FTCA does not itself create a substantive cause of action against the United States; rather, it provides a mechanism for bringing a state law tort action against the federal government in

federal court. Thus, ‘the extent of the United States’ liability under the FTCA is generally determined by reference to state law.’” In re Orthopedic Bone Screw Prod. Liab. Litig., 264 F.3d 344, 361-62 (3d Cir. 2001) (quoting Reo v. U.S. Postal Serv.,

98 F.3d 73, 75 (3d Cir. 1996)). There is, however, a significant limitation on FTCA liability, often referred to as the “discretionary function exception.” S.R.P. ex rel. Abunabba v. United States,

676 F.3d 329, 332 (3d Cir. 2012); 28 U.S.C. § 2680(a). The discretionary function exception to the FTCA eliminates jurisdiction “for claims based upon the exercise of a discretionary function on the part of any employee of the government.” Baer v.

United States, 722 F.3d 168, 172 (3d Cir. 2013) (citing 28 U.S.C. § 2680(a)). The exception “marks the boundary between Congress’[s] willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.” S.R.P. ex rel. Abunabba,

676 F.3d at 332 (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808 (1984)). The exception applies to discretionary actions “whether or not the discretion involved be abused.” 28 U.S.C.

§ 2680(a); Merando v. United States, 517 F.3d 160, 167 (3d Cir. 2008). The government bears the burden of establishing that the discretionary function exception applies. S.R.P. ex rel. Abunabba, 676 F.3d at 333 (citation omitted). When faced with a discretionary function challenge, the Court must first

identify the conduct at issue in the FTCA claim. See id. at 332. Once the conduct is identified, the court performs a two-step inquiry to determine if the discretionary function exception immunizes the government from an FTCA claim arising out of

that conduct. Id. at 332-33. First, the court considers whether the conduct at issue “is a matter of choice for the acting employee” because “conduct cannot be discretionary unless it involves

an element of judgment or choice.” Baer, 722 F.3d at 172. If a federal statute, regulation, or policy dictates a course of action for a federal employee to follow, the discretionary function exception cannot apply because “the employee has no rightful

option but to adhere to the directive.” S.R.P. ex rel. Abunabba, 676 F.3d at 333 (quoting Berkovitz v. United States, 486 U.S. 531, 536 (1988)). If, on the other hand, a specific course of conduct is not prescribed for the employee, the court proceeds to the second step. Id. At step two, because the

challenged conduct involves an element of judgment or choice, the court must determine “whether that judgment is of the kind that the discretionary function exception was designed to shield.” United States v. Gaubert, 499 U.S. 315, 322-23

(1991). That is because the exception “protects only governmental actions and decisions based on considerations of public policy.” Id. at 323 (quoting Berkovitz, 486 U.S. at 537). The focus of this inquiry is not on the employee’s subjective intent in exercising discretion, but “on the nature of the actions taken and . . . whether they

are susceptible to policy analysis.” Id. at 325. As the Supreme Court has explained, “[t]here are obviously discretionary acts performed by a Government agent that are within the scope of his employment but not within the discretionary function

exception because these acts cannot be said to be based on the purposes that the regulatory regime seeks to accomplish.” Id. at 325 n.7. However, “if a regulation allows the employee discretion, the very existence of the regulation creates a strong

presumption that a discretionary act authorized by the regulation involves consideration of the same policies which led to the promulgation of the regulations.” Baer, 722 F.3d at 172-73 (quoting Gaubert, 499 U.S. at 324).

The Court begins, as it must, by identifying the conduct at issue in McLain’s FTCA claim. McLain alleges that FCI Allenwood staff “failed to utilize ‘due care’ regarding COVID-19 protocols that were put in place by the [Centers for Disease Control and Prevention (CDC)] to help prevent the spread and transmission” of the

virus. (Doc. No. 1 at 7.) He states that the CDC recommended social distancing, opening windows in indoor settings, and wearing masks. (Id.) According to McLain, FCI Allenwood staff did not adhere to these guidelines, particularly when

“a good majority” of staff failed to mask properly or at all.1 (Id.) Notably, McLain also alleges that staff were not “enforcing the Warden’s Mask Mandate for the inmates.” (Id.) McLain contends that this negligence by FCI Allenwood staff caused him (and other inmates) to contract COVID-19 and become seriously ill.

(Id.)

1 Although McLain complains about the lack of social distancing, he concedes that the recommended six feet of distance “was unequivocally impossible to adhere to” in prison and was “[n]ot Allenwood’s fault.” (Doc. No. 1 at 7.) A. Step One – Involvement of Discretion The United States contends that, because the CDC’s guidance was not

mandatory for the Bureau of Prisons (BOP), there was no prescribed course of action and thus the federal employees’ actions were “a product of ‘judgment or choice.’” (Doc. No. 27 at 8 (quoting Berkovitz, 486 U.S. at 536).) This argument, as far as it

goes, is sound. The CDC provided some legally binding orders and guidance with respect to COVID-19, but those mandatory requirements applied only to domestic public transportation and international travel.2 However, Defendant fails to account for the portion of McLain’s complaint in

which he alleges that there was a “Mask Mandate” implemented by the warden and that FCI Allenwood correction officers were not following it. (See Doc. No. 1 at 7.) Taking these allegations as true, as the Court must, it is not clear that the federal

employees’ purported actions involved “an element of judgment or choice” such that they could be considered discretionary. Berkovitz, 486 U.S. at 536. Indeed, if there were a masking policy established by the warden of FCI Allenwood, there would likely be no discretion on the part of correctional officers regarding whether to

adhere to it. Accordingly, because it is not clear from the face of the complaint that the conduct was discretionary, Defendant’s motion to dismiss must be denied.

2 See Coronavirus Disease 2019 (COVID-19): CDC Orders, CENTERS FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/cdcresponse/laws-regulations.html (last visited Nov. 21, 2022). B. Step Two – Public Policy Analysis Even if the Court were to assume that the challenged conduct involved

discretion and proceeded to the second step of the analysis, the same conclusion on the motion to dismiss follows. Defendant argues that the BOP’s response to COVID-19 was “complex and multi-factored, requiring significant policy analysis.”

(Doc. No. 27 at 9.) According to Defendant, because the BOP’s “decisions regarding how to administer its prisons during the COVID-19 pandemic are inherently grounded in . . . public policy,” the discretionary function exception should apply. (Id. at 10-11.)

The problem with Defendant’s argument is that McLain does not appear to be challenging the BOP’s policies or strategies concerning COVID-19. He is not, for example, alleging that prison officials were following flawed BOP policy or

guidance and caused him harm. Rather, McLain is contending that correctional officers were intentionally flouting an institutional mask mandate, causing or worsening the spread of the COVID-19 virus. This type of alleged behavior cannot be considered “governmental actions and decisions based on considerations of

public policy.” Berkovitz, 486 U.S. at 537. As the Third Circuit has explained, there must be a “rational nexus” between the government’s conduct and the public policy purportedly furthered by it. S.R.P. ex rel. Abunabba, 676 F.3d at 336 (citation

omitted). Defendant has not established that rational nexus here. In sum, the United States has not met its burden to show that the discretionary function exception to the FTCA applies to McLain’s claims. The Court, therefore,

must deny Defendant’s Rule 12(b)(1) motion to dismiss. IV. CONCLUSION Based on the foregoing, the Court will deny Defendant’s motion to dismiss

under Federal Rule of Civil Procedure 12(b)(1). An appropriate Order follows.

s/ Sylvia H. Rambo United States District Judge

Dated: December 9, 2022