United States District Court, D. New Jersey
SALVATORE J. SICILIANO Siciliano & Associates, LLC 16 On
behalf of Plaintiff
CHRISTOPHER D. AMORE Assistant United States Attorney United
States Attorney's Office 970 On behalf of Defendant
RENÉE MARIE BUMB United States District Judge
matter comes before the Court upon the Defendant's Motion
to Dismiss the [Amended] Complaint Pursuant to Fed.R.Civ.P.
12(b)(1) (ECF No. 38) and Defendant's brief in support
Brief, ”) ECF No. 38-2; Plaintiffs' brief in
opposition to Defendants' motion to dismiss
(“Pls' Brief, ” ECF No. 39); Defendants'
reply brief (“Defs' Reply”, ECF No. 40); and
Plaintiff's sur-reply. (“Pl's Sur-reply,
” ECF No. 41.) For the reasons discussed below, the
Court will grant Defendant's motion to dismiss.
was incarcerated at the Federal Correctional Institution in
Fairton, New Jersey (“FCI Fairton”) from
September 27, 2011 to September 1, 2016, at which time he was
transferred to a Residential Re-entry Center. (Declaration of
Ondreya Barksdale (“Barksdale Decl.”), ECF No.
38-4, ¶4; Attach. B, ECF No. 38-5.) His projected
release date was March 2, 2017, assuming he received all good
conduct time available to him pursuant to 18 U.S.C. §
3624(b). (Barksdale Decl., ¶5, Attach. A, ECF No. 38-6).
24, 2013, Plaintiff filed an administrative tort claim with
the Bureau of Prisons seeking $3, 000, 000 for injuries
sustained as a result of an assault he suffered in federal
prison on January 1, 2012. (Barksdale Decl., ¶11;
Attach. D., ECF No. 38-8.) On January 24, 2014, the BOP
denied Plaintiff's administrative claim. (Barksdale Decl.
¶12, Attach. E, ECF No. 38-9.)
29, 2014, Plaintiff filed the present civil rights action,
arising out of the assault on him in FCI Fairton on January
1, 2012, when an inmate splashed Plaintiff in the face and
shoulder with a “super heated  homemade concoction of
scalding hot coffee, oil, and cleaning chemicals mixed
together, ” and then hit Plaintiff in the head with a
lock in a sock. (Compl., ECF No. 1 at 8.) Plaintiff filed an
amended complaint on October 21, 2014, alleging a single
cause of action under the Federal Tort Claims Act against the
United States of America. (Am. Compl., ECF No. 7, ¶26.)
described his negligence claim as “failure to use
reasonable care in preventing the unreasonable risk of
scalding assaults caused by hot liquids super heated in
easily [accessible] microwaves.” (Id.,
¶5.) Plaintiff alleged:
As a direct result of defendants [sic] negligence in
exercising ordinary diligence in there [sic] duty to keep
plaintiff safe from unreasonable risk of harm and there [sic]
failure to adhere to the "Zimmer Amendment"
plaintiff suffered serious physical injuries in the form of
second degree burns to his face and right shoulder as well as
nerve damage to the right side of his facial area.
alleges Defendant was negligent by not adhering to the Zimmer
Amendment, 18 U.S.C. § , which serves as a
“functional ban” on microwaves in prison.
(Id., ¶19.) He further alleges that Warden J.T.
Shartle was aware of the risk to inmate safety caused by
inmate access to microwaves because Shartle, in his previous
employment at FCI Elkton, had banned microwaves after an
inmate on inmate assault involving a liquid heated in a
microwave. (Id., ¶¶9-10.)
was appointed pro bono counsel on June 3, 2016. (Letter, ECF
No. 23.) On December 5, 2016, Defendant filed a motion to
dismiss for lack of jurisdiction. (Def's Mot. to Dismiss,
ECF No. 38.) Defendant contends Plaintiff's FTCA claim is
barred by the discretionary function exception to the FTCA.
(Def's Brief, ECF No. 38-2 at 10-20.)
DISCUSSION A. Federal Rule of Civil Procedure
Rule of Civil Procedure 12(b)(1) provides that a party may
assert a defense of lack of jurisdiction by making a motion
before filing a responsive pleading. A motion under
Fed.R.Civ.P. 12(b)(1) is an appropriate vehicle for a
defendant to challenge the Court's jurisdiction over a
claim under the Federal Tort Claims Act, based on the
discretionary function exception. See e.g.,
S.R.P. ex rel. Abunabba v. U.S., 676 F.3d 329 (3d