United States District Court, M.D. Alabama, Northern Division
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 ...