Wendt v. United States of America, No. 3:2016cv00849 - Document 18 (E.D. Va. 2017)
Court Description: MEMORANDUM OPINION. See Opinion for details. It is so ORDERED. Signed by District Judge Robert E. Payne on 4/17/2017. (sbea, )
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Wendt v. United States of America Doc. 18 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Riclunond Division •U.S. DISTRICT COURl RICHMOND VA ZEBULON WENDT, Plaintiff, Civil Action No. 3:16cv849 v. UNITED STATES OF AMERICA, Defendant. MEMORANDUM OPINION This matter is before the Court on DEFENDANT' s MOTION TO DISMISS ( ECF No. 7) . For the reasons set forth below, the motion will be granted and the action will be dismissed for lack of subject matter jurisdiction. INTRODUCTION Zebulon Wendt ("Wendt") filed this action under the Federal Torts Claim Act ( "FTCA") against the United States alleging negligent conduct by the United States Marshals Service {"USMS") while Wendt was in their custody for a court appearance at the United States District Court in Richmond, Virginia. The United States seeks dismissal under Fed. R. Civ. P. 12(b) (1) for lack of subject matter jurisdiction. Dockets.Justia.com FACTUAL BACKGROUND On April 23, 2015, United States Immigration and Customs Enforcement arrested Wendt on federal charges for possession of obscene material, remanded him to the custody of the USMS, and transported him to the Pamunkey Regional Jail ("PRJ") in Hanover County, Virginia. (ECF No. 8-1 4.) Wendt was housed at the PRJ pursuant to an Intergovernmental Agreement ( "IGA") between the USMS and the PRJ that the USMS executed under its statutory discretion to enter into such agreements. 1 (Id. 5.) The IGA allows the USMS to house federal detainees with the PRJ at its facility. (ECF No. 8-4 at 3.) The agreement requires that the PRJ "shall accept and provide for the secure custody, safekeeping, housing, subsistence and care of Federal detainees in all accordance regulations, with policies and operation of the Facility." PRJ to "provide state court (Id.) and local orders laws, standards, applicable to the The IGA further requires the transportation and escort guard services for Federal detainees housed at its facility to and from the U.S. Courthouse." (Id. at 1, 7.) USMS does not supervise PRJ's day- to-day operations but retains the right to inspect the facility at its discretion. 1 See 18 u.s.c. §§ (Id. at 3, 12.) 4002, 4013. 2 On July 16, 2015, PRJ officers transported Wendt from the PRJ to the United States District Court in Richmond, for an initial appearance. {ECF No. 11 6.) 8-1 parked within the sally port at the courthouse, into the elevator, Virginia PRJ officers escorted Wendt then took him to the USMS processing area within the USMS secure cellblock of the courthouse. 11 7. ) (Id. At the time, Wendt was wearing leg irons, a belly chain, a black (Id. 1111 6-7.) box, and handcuffs. custody of Wendt to USMS PRJ officers then transferred deputies, who, under normal USMS practices, would have removed Wendt's handcuffs, black box, and belly chain, initial but not appearance. his leg irons, 11 8; {Id. ECF in No. preparation 8-9, for 5-6.) the USMS deputies would then escort Wendt f rem the USMS processing area on the second floor of the courthouse to the courtroom for the initial appearance would have appearance. (ECF No. waited in the Wendt (Id.) 11 9; ECF No. 8-1, does courtroom not during contend 8-9, that the there 6) and initial was any deviation from these standard practices. After Wendt' s initial him out of the courtroom, USMS processing area on appearance, USMS onto the elevator, the second floor. deputies escorted and back to the (Id. ) USMS then transferred custody of Wendt to PRJ officers within this area. (ECF No. 8-1 10, 8-9 officers placed handcuffs, 7.) Following normal protocol, a black box, 3 PRJ and a belly chain back on Wendt, and then escorted him down the hall and onto the second floor elevator for transport to the basement and onto the PRJ van. (ECF No. 8-1 The incident 10, 8-9 that 6, 7.) forms the basis for Wendt's claim occurred in the elevator while Wendt was in the custody of PRJ officers. Report, (ECF No. 8-1, dated July 16, "escorted Plaintiff 10.) 2015, to According to the PRJ Incident PRJ Officers Walker and Overton the elevator inside courthouse to load him into the transport van. " the federal ( ECF No. 8- 8 . ) Wendt "stepped over the threshold at the elevator door and his leg iron got caught in the track. " ( ECF No. 8 - 7. ) Wendt fell and hit his head on the metal elevator floor, suffering injuries to his forehead, USMS deputy nose, was incident occurred. from Court and left ankle. reported (ECF No. Security present 9.) of the 8-9 Officers at (Id., the ECF No. 8-8.) time the No alleged After receiving notice alleged incident, USMS deputies arrived at the site of the incident and assisted PRJ officers in administering first aid to Wendt. (ECF No. 8-8.) Wendt was escorted to the PRJ van for transport back to PRJ a short time thereafter. PRJ the same day. (Id.) He received medical treatment at (Id. ) 4 PROCEDURAL BACKGROUND On December 2, 2015, Wendt properly filed an administrative claim with damages. the Department (ECF No. 12-2.) December 10, 2015, of Justice seeking $100,000 The Department of Justice responded on acknowledging receipt of the administrative claim and seeking further evidence to support it. (Id.) counsel Department provided in additional documents to the Justice on December 14, 2015 and March 23, 2016. Wendt's of (ECF No. 17.) From the record, the disposition of Wendt's administrative claim is unclear. On October 19, 2016, Wendt filed a FTCA action, 28 1364 (b) , 2671-2800, §§ against the United u.s.c. States, § which responded on February 23, 2017 with a motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b) (1). LEGAL STANDARD A defendant may challenge subject matter jurisdiction under Fed. R. Civ. P. 12(b) (1) in two separate ways. United States, 585 F.3d 187, 192 (4th Cir. v. F.2d (4th Bain, 697 defendant may 1213, attack 1219 the 2009) Cir. sufficiency See Kerns of (citing Adams 1982)). the v. First, a complaint's jurisdictional allegations. Id. In the alternative, a defendant may of the allegations attack the veracity jurisdictional themselves. Id. Under the latter approach, a court may consider 5 evidence outside the pleadings to determine whether facts exist to support subject matter States, so F.3d 299, 304 proceeding, jurisdiction. Williams (4th Cir. 1995). in this motion, v. United The United States is under the alternative approach and has submitted several affidavits and documents in support of its motion. "The plaintiff bears matter the jurisdiction is party pointing who sues to the burden of persuasion if subject challenged under Rule the an United States unequivocal (internal citations omitted). 12 (b) (1) bears waiver of the because burden immunity. /1 of Id. "Sovereign immunity can be waived only by the sovereign; the circumstances of this waiver must be scrupulously observed and not expanded by the courts." Kokotis v. United 2000) . All sovereign. 1996) . States Postal ambiguities Robb v. Serv., must 223 be United States, F. 3d resolved 80 275, in F. 3d 884, 278 favor 887 (4th Cir. of the (4th Cir. In the absence of a waiver of sovereign immunity, Court lacks the power to hear the case, the and the claim must be dismissed. United States v. Testan, 424 U.S. 392, 399 (1976). DISCUSSION The United States asserts that Wendt was under the custody and supervision of independent contractors at the time of the incident in which he was injured and that the United States has 6 not, in that circumstance, waived its sovereign immunity from suit. Generally, the United States, as sovereign, is "immune from suit save as it consents to be sued, and the terms of its consent to be sued in any court define the court's jurisdiction to entertain the suit. Lehman v. /1 Nakshian, (1981); Federal Deposit Ins. Corp. v. Meyer, (1994) 156, 160 510 U.S. 471, 475 ("Absent a waiver, sovereign immunity shields the Federal Government and limited waiver its agencies of from sovereign suit. 11 ) . immunity employees of a federal agency, Importantly, The for FTCA grants torts or their agents, scope of their employment. See 28 U.S.C. §§ a committed by acting in the 1346(b), 2671, 2674. the FTCA constrains the term "federal agency" explicitly exclude 2671. u. S. 453 "any contractor with the United States. to /1 § Thus, Congress did not waive the United States' sovereign immunity for injuries caused by the actions of independent contractors performing work for the United States. See United States v. 80 F.3d at Orleans, 425 U.S. 807, 814 (1976); Robb, 887. As a waiver of sovereign immunity, the FTCA is to be strictly construed and all ambiguities must be resolved in favor of the sovereign. independent Robb, contractor 80 F.3d exception at to 887. the Consequently, waiver of the sovereign immunity has been construed broadly. Id. Whether a person is an 7 independent contractor or an employee is determined by federal law. Id.; see Logue v. United States, 412 U.S. 521, 528 (1973). The whether, analytical framework v. well-settled for the purposes of the FTCA, employee or agent, States. is for determining a person is a federal or an independent contractor for the United Under the Supreme Court instructions set out in Logue United States, the "critical factor" for distinguishing an employee or agent from an independent contractor is whether the United States has the power "to control the detailed physical performance Orleans, of the 425 U.S. contractor." at 814. 412 U.S. at 528; see also The Fourth Circuit has interpreted Logue's "control test" to mean that sovereign immunity is waived only where the United States "actually supervises the day operations' of the endeavor." Williams, \day-to- F.3d at SO 306. Furthermore, in Wood v. Standard Products Co., 671 F.2d 825, 832 (4th Cir. 1982), the Fourth Circuit noted that government supervision of day-to-day operations must relate to "the primary activity contracted for and not the peripheral, administrative acts relating to such activity." In Williams, the Court of Appeals found that the United States did not waive sovereign immunity in a slip-and-fall case where the United Meridian, to facility. Id. States provide In had contracted maintenance making that 8 with services determination, a third-party, for the a federal Court of Appeals looked to the conduct of the parties rather than to the terms of the Meridian contract. was responsible an for The Court independent of Appeals contractor the daily operations of concluded because the that Meridian was facility and the United States neither supervised nor controlled the day-to-day operations or the custodial duties. further cited, standing with approval, the for safeguards, directives work and or the that right require standards, The Court of Appeals cases from several jurisdictions proposition including contractor's Id. to certain inspect adherence does not an to contractual independent United convert an States independent contractor into an employee or agent of the United States. Id. at 306-07. This principle applies with equal force to the IGA issue, as this Court held in Johnson v. United States, 572312 at f (E.D. *4 Va. Mar. 7, 2006). In at 2006 WL Johnson, an intergovernmental contract between USMS and Virginia Peninsula Regional Jail "housing, ("VPRJ") safekeeping, required and that subsistence VPRJ of provide federal for the prisoners." While USMS retained the right to perform "periodic inspections" of the VPRJ facility, safeguard did States is not not contractor." Id. the Court "nullify the responsible for held general the that this contractual rule that the actions of an United independent The Court then applied the Williams "control" 9 test and concluded, by undisputed facts independent contractor examining between the because both the that parties, USMS contract did not and the was an VPRJ supervise VPRJ's day-to-day operations. Id. It is clear that PRJ, including Officers Overton and Walker, are independent contractors and not federal employees or agents. USMS contracted with PRJ for the "custody, safekeeping, housing, subsistence and care of Federal detainees in accordance with all state and local laws, standards, regulations, policies and court orders applicable to the operation of the Facility." {ECF No. 8-4, at 3.} The IGA further requires that PRJ ''provide transportation and escort guard services for Federal detainees u. s. Courthouse." {Id. at housed at its facility to and from the 7.} Similar to the intergovernmental agreement in Johnson, the IGA allows periodic inspections of the Facility by the United States but operations. provision places As in responsibility Williams empowering the and United "detailed physical performance" on PRJ Johnson, States in the for its the to day-to-day IGA lacks control execution of the a PRJ' s IGA. Nothing in the IGA suggests that the PRJ falls under the FTCA definition of "employee of the government." Thus, PRJ and its employees are independent contractors of the United States for the purposes of the FTCA. 10 Furthermore, as the United States aptly points out and Wendt does not dispute, at the time of the incident Wendt was in the custody personnel of were PRJ Officers involved deputy supervise after they the resumed in Overton the and incident. actions of control over Walker. Nor Officers Wendt No USMS did any USMS Overton when and the Walker initial appearance concluded and Wendt was returned to the custody of those PRJ officers. Because Wendt was under the custody contractors at the time of the incident, independent the United States did not waive sovereign immunity under the FTCA. Court lacks subject matter jurisdiction. of Accordingly, this The DEFENDANT'S MOTION TO DISMISS (ECF No. 7) will be denied without prejudice. In response to the DEFENDANT' s MOTION TO DISMISS (ECF No. 7), Wendt filed a motion seeking to join the Pamunkey Regional Authority and Officers Overton and Walker as defendants. stated above, As these parties are independent contractors and no colorable claim under the FTCA may be made against them. Nor would joining these parties as defendants disturb the conclusion that this Court lacks subject matter jurisdiction. circumstance, PLAINTIFF'S MOTION TO JOIN Under that PAMUNKEY REGIONAL AUTHORITY AND OFFICERS OVERTON AND WALKER AS DEFENDANTS IN THE ABOVE-STYLED MATTER (ECF No. 13) must be denied. 11 CONCLUSION For DISMISS the foregoing (ECF No. dismissed without 7) reasons, will the DEFENDANT'S be granted and the prejudice, and PLAINTIFF'S MOTION TO action will be MOTION TO JOIN PAMUNKEY REGIONAL AUTHORITY AND OFFICERS OVERTON AND WALKER AS DEFENDANTS IN THE ABOVE-STYLED MATTER (ECF No. 13) will denied. It is so ORDERED. /sf Robert E. Payne Senior United States District Judge Richmond, Virginia Date: April ..... ...1 2017 12 be
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