Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Carter v. United States

United States District Court, S.D. West Virginia, Beckley Division

July 1, 2019

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

          MEMORANDUM OPINION AND ORDER

          IRENE C. BERGER UNITED STATES DISTRICT JUDGE.

         The Court has reviewed the United States' Motion to Dismiss for Lack of Subject Matter Jurisdiction (Document 79), the Memorandum in Support of United States' Motion to Dismiss for Lack of Subject Matter Jurisdiction (Document 80), the Plaintiff's Response to United States' Motion to Dismiss for Lack of Subject Matter Jurisdiction (Document 85), the United States' Reply to Plaintiff's Response to Motion to Dismiss for Lack of Subject Matter Jurisdiction (Document 89), the Plaintiff's Surreply to United States' Motion to Dismiss for Lack of Subject Matter Jurisdiction (Document 107), and the United States' Response to Plaintiff's Surreply (Document 108). For the reasons stated herein, the Court finds that the motion to dismiss should be denied.

         PROCEDURAL HISTORY

         The Plaintiff, Gregory Carter, initiated this action with a Complaint (Document 1) filed on April 21, 2015, seeking relief under the Federal Tort Claims Act (FTCA) for injuries sustained in a fall when his cell at FCI-Beckley flooded. The United States filed a motion to dismiss, asserting that the Plaintiff's injuries were de minimis, and that the United States had not waived sovereign immunity for de minimis injuries. Prior to responding to the motion to dismiss, Mr. Carter's first counsel withdrew, and Mr. Carter, who was then incarcerated, proceeded pro se. The Court referred the matter to a Magistrate Judge for submission of proposed findings of fact and recommendation for disposition. The Magistrate Judge recommended dismissal, and this Court adopted that recommendation. Mr. Carter appealed, and the Fourth Circuit vacated and remanded, explaining that the statutory provision excluding de minimis injury from potential recovery governed emotional injury, while Mr. Carter sought recovery for physical injury, and factual disputes were intertwined with the merits of Mr. Carter's suit, precluding judgment on a motion to dismiss. The factual background contained herein is drawn from the Court's prior opinion, the Fourth Circuit's opinion, the Plaintiff's complaint, and the documents filed by the parties, including supplemental briefing and exhibits submitted after the completion of discovery.

         Following remand, the Magistrate Judge appointed counsel to represent the Plaintiff, and the briefing discussed herein was submitted by counsel.

         FACTS

         Mr. Carter was an inmate at FCI-Beckley during the relevant time period. He arrived with a pre-existing ankle injury and complained of back, neck, and right ankle pain. He was issued an ankle brace and a crutch. On March 7, 2014, he returned the crutch and received a walking cane. The doctor re-evaluated him on March 28, 2014, found that his right ankle remained swollen, and prescribed Ibuprofen and Amitriptyline. Mr. Carter reports that his ankle was improving during the following weeks.

         On or about May 3, 2014, between 5:00 and 6:00 a.m., Mr. Carter awoke to find his cell filled with two inches of standing water. He complained to Correctional Officer Lagowski and requested assistance. Correctional Officer Lagowski was responsible for patrolling the housing unit during the morning shift, which ran from midnight to 8:00 a.m. Thirteen to fifteen officers are normally scheduled at the institution for that shift. The day shift, which runs from 8:00 a.m. to 4:00 p.m., is staffed with twenty-one to twenty-five officers. Officer Lagowski called Lieutenant Pritt to report the water issue, and Lieutenant Pritt told Officer Lagowski they would deal with it at shift change. For the unit where Mr. Carter was housed, Lieutenant Pritt testified that a shift change in which an additional officer would be available was scheduled to take place shortly after the call.[1] Officer Lagowski told Mr. Carter he would have to wait until shift change before the water could be drained.

         When Mr. Carter, still reliant on a cane due to his ankle injury, attempted to cross his cell to reach the toilet, he slipped in the water, fell, and injured his ankle and back. He again called for Officer Lagowski. Following another call to Lieutenant Pritt, Officer Lagowski ordered Mr. Carter to walk to Lieutenant Pritt's office. Lieutenant Pritt sent a compound officer to assist in bringing Mr. Carter to his office.[2] Mr. Carter fell a second time while attempting to cross his flooded cell, hitting his head on a wall locker and injuring his neck. Officers accompanied him to the Lieutenant's office, ridiculing him and accusing him of faking his injury. He was punished with six days in the Special Housing Unit and a ninety-day loss of email and commissary privileges. Lieutenant Pritt contended that Mr. Carter should not have activated the duress button, but the discipline was the result of disrespect and insolence toward Officer Lagowski.

         Mr. Carter went to the clinic on the same day, May 3, 2014, and reported aching, nagging pain in his right ankle. His ankle was x-rayed and bandaged. He continued complaining of pain in the following weeks and months and required ongoing treatment.

         STANDARD OF REVIEW

         A. Motion to Dismiss for Lack of Jurisdiction - Rule 12(b)(1)

         A motion to dismiss pursuant to Rule 12(b)(1) raises the fundamental question of whether a court is competent to hear and adjudicate the claims brought before it. “In contrast to its treatment of disputed issues of fact when considering a Rule 12(b)(6) motion, a court asked to dismiss for lack of jurisdiction may resolve factual disputes to determine the proper disposition of the motion.” Thigpen v. United States, 800 F.2d 393, 396 (4th Cir. 1986) rejected on other grounds, Sheridan v. United States,487 U.S. 392 (1988) (but explaining that a court should accept the allegations in the complaint as true when presented with a facial attack that argues insufficiency of the allegations in the complaint). Reasonable discovery may be necessary to permit the plaintiff to produce the facts and evidence necessary to support their jurisdictional allegations. Id. The plaintiff has the burden of proving that subject matter jurisdiction exists. See Richmond, Fredericksburg & Potomac R. Co. v. United States,945 F.2d 765, 768 (4th Cir.1991). Dismissal for ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.