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Wardell v. United States

United States District Court, Sixth Circuit

September 5, 2013



KARL S. FORESTER, Senior District Judge.

Plaintiff Wendel Robert Wardell, Jr., is an inmate confined in the Federal Correctional Institution located in Estill, South Carolina. Proceeding pro se, Wardell has filed a complaint and amended complaint asserting negligence claims against the United States of America under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 ("FTCA"). [R. 1, 5] In response to Wardell's FTCA claims, the United States has moved to dismiss, pursuant to Fed.R.Civ.P. 12(b), or in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56. [R. 22] Wardell having filed a reply thereto [R. 34]. this matter has been fully briefed and is ripe for review.

For the reasons detailed below, the Court concludes that the defendant United States is entitled to summary judgment. It's motion to dismiss, or alternatively, for summary judgment will be granted, and this matter will be dismissed.


During the course of serving his sentence, Wardell was confined for a period oftime at the United States Penitentiary-McCreary ("USP-McCreary") in Pine Knot, Kentucky. Wardell states that on February 8, 2010, at approximately 1:30 p.m., a fire occurred in a prison cell adjacent to his cell at USP-McCreary, resulting in his personal property being damaged. Wardell claims that Bureau of Prisons (HBOP") staff at USP-McCreary were negligent by failing to monitor and observe the housing unit adjacent to his cell and that, as the result of this negligence, inmates in that cell burned substances in their cell which ultimately resulted in the fire that damaged his personal property. Wardell also claims that BOP staff were negligent by failing to prevent his property from being damaged by this fire at the prison.

As a consequence of this fire, on July 26, 2010, Wardell filed a claim with the BOP on Standard Form 95, seeking property damages in the amount of $2, 665.18 and $75, 000.00 for personal injuries, for a total damages claim in the amount of $77, 665.18. [R. 6-1, pp. 1-22] On October 5, 2010, the United States acknowledged receipt of Wardell's administrative tort claim for $77, 665.18, assigned it a Claim Number (XXXX-XXXXX), and advised Wardell that pursuant to the FTCA, the United States had a period of six months from the date of receipt of his claim in which to review, consider, and adjudicate it. [R. 6-1, p. 23] There is no record of the United States having responded to Wardell's tort claim within the six-month time frame permitted by statute. However, by letter dated September 27, 2011, the United States notified Wardell that his claim, originally categorized as Administrative Tort Claim TRT-MXR-2011-00040, had been considered "for administrative settlement under 31 U.S.C. § 3723, " and that his claim was being denied. [R. 22-2, p. 1] The basis for this denial is explained below:

Your claim filed with this office will be considered for administrative settlement under 31 U.S.C. § 3723. This statute provides for the payment of claims which are "caused by the negligence of an officer or employee of the United States Government acting within the scope of their employment." You alleged that staff permitted an inmate to burn items in your cell which resulted in fire, soot and water damage while you were housed at United States Penitentiary McCreary, [Pine Knot] Kentucky. You allege that staff negligence resulted in damage to your personal property. You claim government liability in the amount of $77, 665.18.
A review into your claim has revealed that no fire was reported in the housing unit on February 8, 2010. It has been determined that staff was not negligent with your personal property and any loss was not caused by any omission on the part of a Bureau of Prisons employee.
Therefore, in view of the above, your claim is denied. You cannot file suit in an appropriate U.S. District Court as there is no judicial review for claims decided pursuant to 31 U.S.C. § 3723. You may request in writing, that the Bureau reconsider your claim. Your request for reconsideration must be submitted within three months of the date of this letter. You must include additional evidence to support your request for reconsideration.


Apparently, Wardell did not request the BOP to reconsider his claim. Instead, on October 6, 2011, he filed this present complaint against the United States pursuant to FTCA, claiming that BOP staff was negligent in failing to prevent damage caused by another inmate burning something in his cell, resulting in "fire, water, and soot damage" to his personal property, thus breaching a duty owed to him. [R. 1] On October 28, 2011, Wardell filed an Amended Complaint, adding allegations that BOP personnel had disengaged fire detection equipment. [R. 5] Wardell seeks an "amount in excess of $75, 000 exclusive of interest and costs, " attorney's fees, pre- and post-judgment interest, costs, and a trial by jury. [R. 1, R. 5]


Standards for Dismissal/Summary Judgment

Fed.R.Civ.P. 12(b) provides for the dismissal of claims and parties for seven listed reasons. Subsection (b)(6) provides for dismissal for failure to state a claim upon which relief can be granted. ...

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