Coltharp v. United States

          MEMORANDUM OPINION AND ORDER

          EMILY C. MARKS CHIEF UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         Pursuant to the Federal Torts Claims Act (“FTCA”), 28 U.S.C. § 2671, Plaintiff Lori Coltharp (“Coltharp”) brings this action against the United States, ^[1] alleging that the United States breached its duty of care to protect her when she was attacked by another patient while hospitalized in the Central Alabama Veterans Health Care System (“CAVHCS”) in Tuskegee, Alabama. According to Coltharp, the United States negligently and wantonly failed to “provide and maintain a non-dangerous, safe and secure hospital environment and program” because another patient physically assaulted her while she participated in a Veterans Administration (“VA”) substance abuse treatment program. (Doc. 13 at 16, para. 70). She seeks to hold the United States liable under the FTCA for the alleged wrongful conduct of VA staff for failing to protect her and for allowing a violent patient into the program. Jurisdiction of this case is premised on the Court's federal question jurisdiction, 28 U.S.C. § 1331, and the jurisdictional grant contained in 28 U.S.C. § 1346(b) for federal tort claims.

         Now pending before the Court is the United States' motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(1), asserting that this Court lacks subject matter jurisdiction because the Plaintiff's claims are barred by the discretionary function exception to the FTCA, 28 U.S.C. § 1346(b) and 28 U.S.C. § 2680(a). (Doc. 14). Also pending before the Court is Coltharp's motion to substitute party (doc. 31) and her amended motion to substitute party (doc. 33) seeking to substitute Coltharp's daughter as Administrator ad Litem of Coltharp's estate because Coltharp is now deceased. The Court has carefully reviewed the motion to dismiss, the briefs, and the attachments filed in support of and in opposition to the motion. For the reasons that follow, the Court concludes that the Defendant's motion to dismiss is due to be granted, and the Plaintiff's motions to substitute are due to be denied as moot.

         DISCUSSION

         There is no dispute that Coltharp's exclusive remedy is pursuant to the FTCA. See 28 U.S.C. § 2679. “It is, of course, ‘axiomatic' under the principle of sovereign immunity ‘that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.'” Adeleke v. United States, 355 F.3d 144, 150 (2nd Cir. 2004) (quoting United States v. Mitchell, 463 U.S. 206 (1983)); Means v. United States, 176 F.3d 1376, 1378 (11th Cir. 1999) (“[S]overeign immunity bars suit against the United States [and its agencies] except to the extent it consents to be sued.”).

         The FTCA waives the United States' sovereign immunity from suit in federal courts for certain tort claims arising from the actions of its employees. Cohen v. United States, 151 F.3d 1338, 1340 (11th Cir. 1998); Ochran v. United States, 117 F.3d 495, 499 (11th Cir. 1997). Specifically, Congress waived sovereign immunity and granted consent for the United States to be sued for acts committed by any “employee of the Government while acting within the scope of his office or employment.”^[2] 28 U.S.C. § 1346(b)(1).

         There are, however, several explicit exceptions to this waiver of sovereign immunity, Cohen, 151 F.3d at 1340, including the discretionary function exception which is at issue in this case. Exceptions to the FTCA are “strictly construed in favor of the United States.” Zelaya v. United States, 781 F.3d 1315, 1322 (11th Cir. 2015) (quoting JBP Acquisitions, LP v. United States ex rel. F.D.I.C., 224 F.3d 1260, 1263-64 (11th Cir. 2000)). The discretionary function exception revives sovereign immunity when the claim against the government is based on a government actor's “exercise or performance or the failure to exercise or perform a discretionary function or duty . . . whether or not the discretion involved [is] abused.”^[3] 28 U.S.C. § 2680(a). Thus, it is the Plaintiff's burden to “prove that the discretionary function exception [to the FTCA] does not apply” when the United States asserts that the discretionary function exception bars her claims. OSI, Inc. v. United States, 285 F.3d 947, 951 (11th Cir. 2002); Lawrence v. United States, 597 Fed.Appx. 599, 603-04 (11th Cir. 2015); Willett v. United States, 24 F.Supp.3d 1167, 1178-79 (M.D. Ala. 2014).

         A. Standard of Review

         The United States asserts that this case should be dismissed pursuant to Fed.R.Civ.P. 12(b)(1). Coltharp argues that because subject matter jurisdiction and the merits of the case are “so intertwined, ” the Court should “look with disfavor” on the government's Rule 12(b)(1) motion. (Doc. 19 at 13-17). A Rule 12(b)(1) motion to dismiss challenges the subject matter jurisdiction of the court, and the Rule permits a facial or factual attack. See McElmurray v. Consolidated Gov't of Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007); Barnett v. Okeechobee Hosp., 283 F.3d 1232, 1238 (11th Cir. 2002). By arguing that the discretionary function exception bars Coltharp's claims, the United States mounts a factual challenge to the Court's subject matter jurisdiction. United States Aviation Underwriters, Inc., v. United States, 562 F.3d 1297, 1299 (11th Cir. 2009); Hogan v. United States Postmaster General, 492 Fed.Appx. 33, 34 (11th Cir. 2012). A factual attack on subject matter jurisdiction challenges the existence of subject matter jurisdiction in fact, regardless of the pleadings, and matters outside the pleadings are considered in the analysis. McElmurray, 501 F.3d at 1251. When analyzing a factual attack, the court is free to weigh the available evidence to satisfy itself of the existence of subject matter jurisdiction. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990).

         B. Discretionary Function Exception to the FTCA

         The Court now turns to the applicability of the discretionary function exception of the FTCA to the Plaintiff's claims.^[4] The exception covers only those acts that are discretionary in nature - acts that “involv[e] an element of judgment or choice.” United States v. Gaubert, 499 U.S. 315, 322 (1990) (quoting Berkovitz v. United States, 486 U.S. 531, 536 (1988)). Moreover, “it is the nature of the conduct, rather than the status of the actor” that governs whether the exception applies. United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 813 (1984).

         A claim falls within the discretionary function exception of the FTCA when it meets two requirements: (1) the challenged decision must involve an element of choice, and (2) the governmental decision must implicate an exercise of judgment grounded on considerations of public policy. Gaubert, 499 U.S. at 322. In determining whether the discretionary function exception applies, the Court must first determine whether the nature of the government actor's conduct involves an element of judgment or choice. Zelaya, 781 F.3d at 1329-30. “[T]he inquiry focuses on ‘whether the controlling statute or regulation mandates that a government agent perform his or her function in a specific manner.'” Id. at 1329 (quoting Hughes v. United States, 110 F.3d 765, 768 (11th Cir. 1997)). “[I]f a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow, ” and “the employee has no rightful option but to adhere to the directive, ” the conduct does not involve an element of choice and therefore is not discretionary. Berkovitz, 486 U.S. at 536. “Only if a federal statute, regulation, or policy specifically prescribes a course of action, embodying a fixed or readily ascertainable standard, will a government employee's conduct not fall within the discretionary function exception.” Autery v. United States, 992 F.2d 1523, 1529 (11th Cir. 1993) (emphasis original) (internal citations and quotations omitted). Thus, Coltharp must provide the Court with a controlling statute, regulation, or policy that specifically prescribes a course of action, embodying a fixed or readily ascertainable standard, if she is to escape the discretionary function exception under the first step of the Gaubert test. If Coltharp fails to provide the Court with such a statute, regulation, or policy, the government actor's conduct, or lack thereof, will be found to involve an element of judgment or choice, and the analysis will advance to the second step.

         Thus, the existence of a statute, regulation or internal policy of CAVHC that imposes a mandatory obligation on employees to provide a safe and secure hospital environment, and protects Coltharp from third party assaults is determinative to the United States' motion to dismiss based on the discretionary function exception to the FTCA. In her amended complaint, Coltharp alleges that the VA was negligent and wanton in its failure to provide and maintain a safe and secure hospital environment, and its failure to adhere to a zero-tolerance policy concerning violence in the treatment program resulted in her injuries. Thus, the ...