United States District Court, D. New Jersey
HONORABLE JEROME B. SIMANDLE JUDGE
Steven Schmidt (hereinafter “Plaintiff”) brings
this negligence action under the Federal Tort Claims Act
(hereinafter “FTCA”) against Defendants the
United States of America (hereinafter “the United
States”) and John Does 1-20 (fictious
names) as a result of injuries sustained by
Plaintiff while he was making a delivery to a warehouse
facility outside the fence of the Federal Correctional
Institution, Fort Dix (hereinafter “FCI Fort
Dix”). (See Amended Complaint [Docket Item
16].) Plaintiff, a commercial truck driver, alleges he was
injured while making a delivery to a warehouse facility at
FCI Fort Dix when he was struck by a forklift operated by FCI
Fort Dix worker/inmate Anthony Hopson, under the direction
and in the presence of Bureau of Prisons (hereinafter
“BOP”) supervisor Michael Murray. This matter
comes before the Court by way of a motion filed by the United
States seeking summary judgment as to Counts
Three through Six of the Amended Complaint. (See
Motion for Summary Judgment [Docket Item 39].) Plaintiff has
filed a brief opposing the United States' motion.
(See Plaintiff's Brief in Opposition
(hereinafter “Pl.'s Opp'n”) [Docket Item
43].) The United States has filed a reply brief.
(See Reply Brief [Docket Item 49].) The principal
issues to be decided are whether the “discretionary
function exception” to the FTCA, 28 U.S.C. §§
1346(b), 2680(a), bars any of Plaintiff's claims, and
whether any of Plaintiff's claims are barred due to
Plaintiff's alleged failure to exhaust administrative
remedies prior to filing this suit. (See United
States' Br. [Docket Item 39-1].) For the reasons set
forth below, the United States' motion for summary
judgment [Docket Item 39] will be granted with respect to
certain portions of Count Six of the Amended Complaint;
Counts Two, Five, and Six of the Amended Complaint will be
dismissed; Count Seven of the Amended Complaint will be
dismissed without prejudice; and the remainder of the United
States' motion will be denied. The Court finds as
Factual and Procedural Background.
The factual and procedural background of this case was
previously detailed in the Court's Memorandum Opinion of
September 26, 2018, and shall not be repeated herein, except
as necessary for the determination of the present motion.
See Schmidt v. Fed. Corr. Inst., Fort Dix, No.
15-3789, 2018 WL 4620672, at *1-2 (D.N.J. Sept. 26, 2018).
Federal Defendants originally filed a prior motion for
summary judgment, arguing that they were entitled to judgment
in their favor as to Count One of the Amended Complaint,
because the FTCA does not act as a waiver of sovereign
immunity with respect to the negligent actions of federal
inmates engaged in an inmate work program, such as Mr.
Hopson. (See Fed. Defs.' Br. [Docket Item 33-1],
13-23.) In response, Plaintiff filed a cross-motion for
summary judgment as to Count One, seeking partial summary
judgment for a determination, as a matter of law, that
Defendant Hopson is regarded as an employee of the government
under the statutory definition of “[e]mployee of the
government” in the Federal Tort Claims Act, 28 U.S.C.
§ 2671. (See Pl.'s Mot. [Docket Item 37].)
On September 26, 2018, the Court denied Defendants'
earlier motion for summary judgment [Docket Item 33], except
insofar as it sought to dismiss Defendant FCI Fort Dix, and
granted Plaintiff's cross-motion for summary judgment
[Docket Item 37] “to determine only, as a matter of
law, that [Mr.] Hopson was operating his [Federal Bureau of
Prisons] forklift unloading a commercial delivery from
Plaintiff's truck at the time of the incident as an
‘employee of the government' for the purposes of
the [Federal Tort Claims Act, 28 U.S.C. § 2671].”
(See Memorandum Opinion [Docket Item 47], 16.)
November 6, 2018, Mr. Hopson, who was previously individually
named as a defendant in this case, was voluntarily dismissed,
since the United States is the sole proper defendant in an
action arising from the negligence of its employee or agent
acting within the scope of his or her duties. See 28
U.S.C. § 2679(c)-(d); Order [Docket Item 54].
Thereafter, the United States filed the present motion for
summary judgment as to Counts 3, 4, 5, and 6. (See
Motion for Summary Judgment [Docket Item 39].) The pending
motion is fully briefed and ripe for disposition. The Court
held oral argument on November 7, 2018.
Standard of Review. At summary
judgment, the moving party bears the initial burden of
demonstrating that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a); accord Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). Once a properly
supported motion for summary judgment is made, the burden
shifts to the non-moving party, who must set forth specific
facts showing that there is a genuine issue for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986). In reviewing a motion for summary judgment, the court
is required to examine the evidence in light most favorable
to the non-moving party and resolve all reasonable inferences
in that party's favor. Scott v. Harris, 550 U.S.
372, 378 (2007); Halsey v. Pfeiffer, 750 F.3d 273,
287 (3d Cir. 2014).
factual dispute is material when it “might affect the
outcome of the suit under the governing law, ” and
genuine when “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248. The non-moving party
“need not match, item for item, each piece of evidence
proffered by the movant, ” but must present more than a
“mere scintilla” of evidence on which a jury
could reasonably find for the non-moving party. Boyle v.
Cnty. of Allegheny, Pa., 139 F.3d 386, 393 (3d Cir.
1998) (quoting Anderson, 477 U.S. at 252).
present motion, the United States seeks summary judgment in
its favor with regard to Counts Three, Four, Five, and Six of
the Amended Complaint. (See Motion for Summary
Judgment [Docket Item 39].)
Count Two - Negligent Operation of the Forklift.
brings suit in Count Two against Mr. Hopson for injuries
sustained by Plaintiff as a result of Mr. Hopson's
allegedly negligent operation of the forklift at issue in
this case. (Amended Complaint [Docket Item 16], Count Two
¶ 4-7.) However, at oral argument, Plaintiff conceded
that he would consent to dismiss Count Two, as he believes
that is repetitive of the allegations set forth in Count One
of the Amended Complaint and because Mr. Hopson, deemed an
employee of the United States for purposes of FTCA liability,
cannot be individually sued for negligence within the scope
of his federal employment. As such, the Court shall dismiss
Count Two, while recognizing that Mr. Hopson's negligence
in the operation of the forklift is attributable to the
United States by operation of the FTCA, and as alleged in
Count Three - Negligent Operation of FCI Fort Dix.
Plaintiff brings suit in Count Three against the United
States for injuries sustained by Plaintiff as a result of the
allegedly negligent operation of FCI Fort Dix, including:
a. negligently failing to establish and implement policies
and procedures sufficient for the safe operation of the
loading and unloading at its facility;
b. negligently failing to reasonably train its forklift
operators, including the forklift operator on the date of the
c. negligently failing to reasonably supervise its forklift
operators, including the forklift operator on the date of the
d. negligently failing to operate and supervise the loading
e. negligently creating and operating a program using
prisoners as operators of mechanical equipment without
creating reasonable and adequate procedures for the safety of
visitors, including Plaintiff, and/or f. otherwise acting
(Amended Complaint [Docket Item 16], Count Three ¶ 4.)
The United States asserts that it is entitled to summary
judgment as to Count Three because the discretionary function
exception bars any claims regarding the United States'
negligent supervision or negligent training of Mr. Hopson,
and regarding the United States' “fail[ure] to
establish and implement policies and procedures sufficient
for the safe operation of the loading and unloading at its
facility.” (United States' Br. [Docket Item 39-1],
16-18, 25-26.) However, at oral argument, Plaintiff conceded
that he would withdraw any arguments regarding the propriety
of the policy of using prisoners to operate forklifts in
general, or regarding negligent training or supervision of
Mr. Hopson in particular. Plaintiff further asserted at oral
argument that in Count Three he is only pursuing claims
regarding Mr. Murray's personal negligence as a BOP
employee at the time of the accident. Additionally, Plaintiff
argues that the discretionary function exception does not
shield the United States from liability for Mr. Murray
negligently putting Plaintiff in harm's way, since Mr.
Murray knew of the layout and potential dangers of the
loading area. (Pl.'s Opp'n [Docket Item 43], 22-31.)
Plaintiff also argues that the discretionary function
exception does not shield the United States from liability
for Murray's negligent actions related to “loading
dock operational activities” or supervision at the time
in question. (Id.)
United States responds that there is no evidence that Mr.
Murray “directed” Plaintiff into the
forklift's path. (United States' Reply [Docket Item
46], 2-6.) However, Plaintiff need not show that he was
specifically “directed” into the forklift's
path by Mr. Murray in order to succeed on this count.
Plaintiff alleges that Mr. Murray was talking with him and
failed to warn him even as the forklift backed into him and
struck him. The United States also fails to show that there
is no genuine dispute of material fact as to Mr. Murray's
alleged breach of this duty. As such, the United States has
failed to meet its burden to establish that it is entitled to