United States District Court, D. New Jersey
Patrick J. Whalen, Esq. Attorney at Law, LLC and Philip J.
Cohen, Esq. Kamensky Cohen Riechelson Counsel for Plaintiff
Kristin Lynn Vassallo, Esq. Office of the U.S. Attorney,
Counsel for Defendants
L. HILLMAN, U.S.D.J.
Benjamin Parker, through counsel, filed a Complaint pursuant
to the Federal Tort Claims Act, 28 U.S.C. §§
2671-2680, et seq., against Defendants the United States of
America, the Federal Bureau of Prisons (“BOP”),
the former warden of the Federal Correctional Institution at
Fort Dix in Fort Dix, New Jersey, Jordan Hollingsworth,
Officer LaTasha Rogers, Lieutenant Joseph Anderson, Officer
Brian Virgillo, and John or Jane Does Nos. 1-20 and XYZ
Corporations Nos. 1-10, for injuries he sustained as a result
of an assault by another inmate or inmates while incarcerated
at FCI Fort Dix. ECF No. 1.
before the Court is Defendants' Motion to Dismiss for
lack of jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(1), which is ripe for adjudication. ECF Nos.
12 (motion), 19 (opposition brief), 23 (reply). For the
reasons that follow, the Court will grant the Motion in part.
Allegations Contained in the Complaint
Benjamin Parker brings this civil action under the Federal
Tort Claims Act (“FTCA”), alleging that he was
assaulted by an unknown inmate or inmates while he was
incarcerated at the Federal Correctional Institution in Fort
Dix, New Jersey, and that this attack occurred as a result of
the negligence on the part of the BOP and its employees.
Plaintiff generally alleges that the defendants were
negligent in creating the conditions that led to his assault
because (1) certain actions by defendants may have resulted
in the perception that Plaintiff was cooperating with prison
officials in an investigation akin to being a “snitch,
” (2) they created dangerous conditions by leaving
loose cinder blocks and other debris in the second floor
bathroom of Plaintiff's housing unit, and (3) staffing
was insufficient to prevent the attack on Plaintiff. See ECF
No. 1. Plaintiff names as Defendants Jordan Hollingsworth
(the former warden of FCI Fort Dix), Officer LaTasha Rogers,
Lieutenant Joseph Anderson, Officer Brian Virgillo, the BOP,
and the United States of America. See Id. at 1, 11.
time of the incident, Plaintiff was incarcerated at FCI Fort
Dix and housed, in the East Compound in Unit 5741 (the
“Unit”), which housed approximately 300 inmates.
Id., ¶¶ 18-19. Generally, Defendants
assigned only one corrections officer to be on duty and that
officer was responsible for monitoring and supervising Unit
5741. The corrections officer's office was located on the
first floor of the Unit. Id., ¶ 20. Plaintiff
was housed on the second floor of the Unit, in a 12-person
room with a door that did not lock. Id., ¶ 21.
There was a large bathroom on that second floor (the
“Bathroom”) that was left in a constant state of
disrepair. Id., ¶ 22. On a near weekly basis,
Defendants' or their employees routinely removed cinder
blocks from the Bathroom walls and shower stalls in search of
contraband. Id., ¶ 23. In the process, they
would leave behind an accessible pile of cinder blocks and
other construction debris, which were left unattended and
accessible to all inmates for days at a time. Id.,
¶¶ 24-25. Plaintiff alleges that these cinder
blocks and debris created an obvious, known, and plainly
visible risk and danger to the inmates housed at in the Unit.
Id., ¶ 26. By creating this debris pile,
Defendants provided some of the violent and dangerous inmates
at the Fort Dix with weapons to use against other inmates
against whom they had disagreements or confrontations, such
as Plaintiff. Id., ¶ 27.
September 6, 2015, at approximately 10:00 a.m.,
Plaintiff's name was called over the public address
system, instructing him to report to Defendant Special
Investigative Services (“SIS”) Lieutenant
Anderson's office. Id., ¶ 31. Defendant
Anderson brought Plaintiff into the SIS Office to be
interviewed regarding an investigation into an alleged
extensive gambling ring involving several inmates at FCI Fort
Dix. Id., ¶ 32. Plaintiff explained that he was
not involved in that gambling operation. Id., ¶
33. Plaintiff knew next to nothing about it and had no
information to provide to the investigation. Id.,
inmate, who had been threatened with violence by the inmates
who were operating the illegal gambling ring and had a
significant gambling debt, had reported the matter to the
Defendants or their employees. Id., ¶ 37.
During that inmate's report, Plaintiff alleges that he
falsely identified Plaintiff as being the
“enforcer” for the gambling ring. Id.,
¶ 38. According to Plaintiff, this false tip or
fabrication was the reason Defendants wanted to interview
Plaintiff. Id., ¶ 39.
alleges that Defendants knew or should have known that the
inmates running that illegal gambling ring were dangerous and
had already threatened physical harm to other inmates,
including the inmate making the false report. Id.,
¶ 41. Plaintiff describes Defendants' actions as
putting a “target” on his back and inviting an
unjustified and unwarranted retaliatory attack on Plaintiff.
days later, on Wednesday, September 16, 2015, Defendant SIS
Agent Officer Virgillo escorted Plaintiff from Unit 5741 to
the SIS Office. Id., ¶ 45. Plaintiff was
questioned about the gambling operation again and Plaintiff
explained that he had no involvement. Id., ¶
days later, on September 18, 2015, Plaintiff was attacked by
one or more inmates. Id., ¶ 48. Plaintiff was
struck multiple times in the head with a blunt object, which
Plaintiff alleges was a cinder block or some other piece of
construction debris that Defendants' staff had left in
the Bathroom. Id., ¶ 49. According to the
Complaint, the assault occurred between 6:00 a.m. and 6:15
a.m. when Officer LaTasha Rogers was on duty in the Unit.
Id., ¶¶ 50, 53-54. Plaintiff sustained
significant, permanent injuries including brain damage, a
posttraumatic epileptic episode, severely broken facial
bones, permanent loss of vision, smell, and taste, and
permanent bodily pain and discomfort. Id., ¶
alleges that he was housed in FCI Fort Dix's Special
Housing Unit when he returned from the hospital and has not
been able to obtain records relating to the investigation
into the gambling ring or the attack against him, impairing
his ability to “get access to the entire truth of the
events” that are alleged in the Complaint.
Id., ¶¶ 56, 58-60. In the Complaint,
Plaintiff only asserts an FTCA claim against the Defendants
Defendants' Supplemental Facts Regarding
Fort Dix is a federal prison with the primary mission of
housing low security sentenced federal inmates. See
ECF No. 12-5. The facility, a former military barracks not
constructed as a typical BOP prison, consists of two separate
compounds, the East Compound and the West Compound.
Id. Each compound contains numerous buildings,
including six or seven dormitory-style buildings where
inmates are quartered, buildings for inmate recreation and
education, food-service buildings, Federal Prison Industries
buildings, and administrative buildings, including a
Lieutenant's complex. Id.
buildings used as inmate housing units at FCI Fort Dix are
three stories high and contain multi-purpose rooms,
television rooms, exercise areas, staff offices, and inmate
dormitory rooms. Id. The dormitory rooms are
typically twelve-man rooms with some two-man rooms as well.
Id. The dormitory rooms do not have locks on ...