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Carter v. United States

United States District Court, D. New Jersey

August 15, 2017

KEVIN CARTER, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          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

          OPINION

          RENÉE MARIE BUMB United States District Judge

         This 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

         (“Def's 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.

         I. BACKGROUND

         Plaintiff 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).

         On July 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.)

         On July 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.)

         Plaintiff 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.

(Id., ¶25.)

         Plaintiff alleges Defendant was negligent by not adhering to the Zimmer Amendment, 18 U.S.C. § [4042], 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.)

         Plaintiff 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.)

         II. DISCUSSION A. Federal Rule of Civil Procedure 12(b)(1)

         Federal 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 ...


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