United States District Court, N.D. West Virginia, Clarksburg
KIMBERLY CRAWFORD, as Administratrix for the Estate of Arvel Crawford, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM OPINION AND ORDER GRANTING LEAVE TO FILE
SUPPLEMENTAL RESPONSE [ECF NO. 15] AND GRANTING MOTION TO
DISMISS [ECF NO. 8]
S. KLEEH UNITED STATES DISTRICT JUDGE
before the Court is the United States of America's Motion
to Dismiss for Lack of Subject Matter Jurisdiction [ECF No.
8]. It is now ripe for consideration. For the reasons
discussed below, the Court GRANTS the
Plaintiff, Kimberly Crawford (“Plaintiff”), filed
a complaint against the United States of America (the
“Government”) on November 22, 2017, as
Administratrix for the Estate of her son, Arvel Crawford.
ECF No. 1. She alleges one count of negligence under
the Federal Tort Claims Act (“FTCA”) based on her
belief that the Government failed to operate USP-Hazelton
(“Hazelton”) in a reasonably safe manner, leading
to her incarcerated son's death. Id.
February 13, 2018, United States District Judge Irene M.
Keeley issued a First Order and Notice Regarding Discovery
and Scheduling. ECF No. 6. On March 14, 2018, the
Government filed its Motion to Dismiss. ECF No. 8.
Judge Keeley then stayed all deadlines pending resolution of
the motion. ECF No. 13. On October 31, 2018,
Plaintiff moved for leave to file a supplemental response to
the Government's motion to dismiss, averring that James
“Whitey” Bulger's murder at Hazelton
indicates the serious problems at the prison and warrants the
filing of a supplemental response. ECF No. 15. On
December 1, 2018, the case was transferred to United States
District Judge Thomas S. Kleeh. ECF No. 16.
is a federal prison located in Preston County, West Virginia.
ECF No. 1 at ¶ 1. Arvel Crawford was
incarcerated at Hazelton from 2014 until his death on March
6, 2015. Id. ¶ 6. On that date, another inmate,
the identity of whom is unknown to Plaintiff, used a shiv to
slice Mr. Crawford's throat and kill him. Id.
¶¶ 8, 11. Plaintiff alleges that the Government
owed a duty of care to all inmates and that the duty included
ensuring that contraband, such as a shiv, was not created or
carried on the grounds by inmates. Id. ¶ 21. As
such, the Government breached its duty when it allowed
another inmate to create and/or possess a shiv, which was
then used to kill Mr. Crawford. Id. ¶ 22.
Plaintiff's counsel made repeated requests to the
Government in an effort to learn the factual details
surrounding Mr. Crawford's death, but the Government has
not provided them with any information. Id.
¶¶ 9-10. Before bringing this suit, Plaintiff filed
an administrative claim against the Government, which was
denied. Id. ¶¶ 14, 17.
Briefing by the Parties
The Government's Motion [ECF Nos. 8, 9]
Government moved to dismiss the action based on lack of
subject matter jurisdiction. Generally, federal courts cannot
hear suits against the federal government unless the
government expressly consents by waiving sovereign immunity.
ECF No. 9 at 4. The FTCA is a narrow exception to
this general rule. Id. at 5. The Government believes
the “discretionary function exception” to the
FTCA applies here. Id. at 6. This exception provides
immunity from liability for its agents' and
employees' performance of duties involving discretionary
Government cites cases in which this Court, the United States
Supreme Court, and the Fourth Circuit Court of Appeals have
found that negligence lawsuits involving prisoner-on-prisoner
violence have fallen into the discretionary function
exception. Id. at 7-11. This is because there is no
explicit directive as to how the Bureau of Prisons
(“BOP”) should fulfill its obligation to protect
inmates. Id. at 8. The Government attached an
affidavit from Eric Howell (“Howell”), the Deputy
Captain at Hazelton, in which Howell states that he is
“familiar with the regulations, policies, procedures,
and general practices used by the BOP to limit, detect, and
control contraband weapons” and that “[t]here is
no specific statute, regulation, or policy that dictates how
BOP employees” are to do so. ECF No. 9-1 at
¶¶ 5, 8. Specifically, he writes, “there is
no statute, regulation, or policy that mandates when or how
BOP employees will physically search inmates in the common
area of a housing unit to detect contraband weapons.”
Id. ¶ 6. He also states that Mr. Crawford was
not separated from his attacker because there was no record
of his requesting protective custody or being involved in
another altercation. Id. ¶ 12. Attached to
Howell's affidavit are Mr. Crawford's inmate records,
including an incident report sheet from the altercation that
led to his death. Id. at 5-16.
Plaintiff's Response [ECF No. 11]
argues that she is entitled to discovery relating to policies
and procedures regarding weapons, inmate patdowns, and body
searches at Hazelton - and to see whether they were followed.
ECF No. 11 at 7. Plaintiff cites a Fourth Circuit
case, Rich v. United States, 811 F.3d 140 (4th Cir.
2015), in which the court found that discovery was necessary
to determine whether adequate patdowns or searches occurred
before an inmate was attacked in the Special Housing Unit
recreation cages at Hazelton. ECF No. 11 at 4-6.
Furthermore, Plaintiff argues that under Rich, even
if the facts show that the manner of conducting patdowns or
searching for contraband weapons is discretionary, subject
matter jurisdiction may exist if the conduct is marked by
individual carelessness or laziness. Id.
Plaintiff's response also provides a timeline detailing
her numerous failed attempts to gain information from the BOP
about what happened to Mr. Crawford. Id. at 2-4. She
then “had no choice” but to file the lawsuit
without any factual information before the statute of
limitations ran out. Id. at 4.
The Government's Reply [ECF No. 14]
Government argues that Plaintiff is not entitled to leverage
discovery as a “fishing expedition in the hopes of
discovering some basis of jurisdiction.” ECF No.
14 at 2. Plaintiff, the Government argues, has not met
her burden in establishing jurisdiction. Id. The
Government reiterates that it cannot be sued unless it
consents by specifically waiving sovereign immunity, that the
FTCA is a narrow exception to this, and that the FTCA itself
includes an exception for discretionary actions. Id.
about how to safeguard prisoners, the Government argues, are
generally discretionary. Id. at 4. The Government
distinguishes Rich because Rich involved
policies and procedures for inmate patdowns and searches in
the Special Housing Unit. Id. at 6. In contrast, Mr.
Crawford was attacked in the common area of a general
population housing unit (the “general
population”), where prison officials have broad
discretion to decide when to search inmates for contraband.
Id. The Government also argues that Plaintiff has
not established that discovery is necessary and that the
Government should not be exposed to extensive rounds of
discovery. Id. at 9.
STANDARD OF REVIEW
of the Federal Rules of Civil Procedure provides that
“[i]f the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the
action.” Fed.R.Civ.P. 12(h)(3). The burden of proving
subject matter jurisdiction on a motion to dismiss lies with
the party asserting jurisdiction. CSX Transp., Inc. v.
Gilkison, No. 5:05CV202, 2009 WL 426265, at *2 (N.D.
W.Va. Feb. 19, 2009). A trial court may consider evidence by
affidavit without converting the proceeding into one for
summary judgment. Adams v. Bain, 697 F.2d 1213, 1219
(4th Cir. 1982). No. presumptive truthfulness attaches to the