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Petrovic v. United States

United States District Court, E.D. Kentucky, Central Division, Lexington

September 21, 2017

JOVICA PETROVIC, Plaintiff,
v.
UNITED STATES et al., Defendants.

          OPINION & ORDER

          KAREN K. CALDWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT

         This matter is before the Court on a report and recommendation (DE 23) from Magistrate Judge Hanly A. Ingram. For the following reasons, plaintiff's objections are DENIED and defendants' motion to dismiss, or in the alternative, motion for summary judgment (DE 16) is GRANTED. Plaintiff's motion for criminal prosecution (DE 27) is DISMISSED, and plaintiff's tendered surreply is STRICKEN from the record.

         I. Background

         At the time of the events contained within his Complaint, plaintiff Jovica Petrovic was an inmate at the Federal Medical Center (FMC)-Lexington in Lexington, Kentucky. On May 27, 2016, Petrovic filed this civil rights action asserting constitutional claims, pursuant to the doctrine announced in Bivens v. Six Unknown Federal Narcotic Agents, 403 U.S. 388 (1971), and negligence and common law tort claims under the Federal Tort Claims Act (FTCA). 28 U.S.C. §§ 1346(b), 2671-2680. Petrovic's complaint names FMC-Lexington Officers Goodwin and Lawrenz and the United States of America as defendants. (DE 1).

         In his complaint, Petrovic alleges that he began having heart palpitations on the morning of July 19, 2015, while incarcerated at FMC-Lexington, and that he fell asleep while lying down in an effort to get the palpitations to subside. (DE 1 at 2). At approximately 10:15 AM, Officer Goodwin awoke Petrovic while performing the morning stand-up count. Id. Petrovic alleges that Officer Goodwin “lifted [his] bed, like a mad men [sic], [and] dropped it to the floor in an effort to awake [sic] and startle plaintiff.” Id. Officer Goodwin “demanded” that Petrovic come to his office after the count. Id.

         At 10:30 AM, Petrovic went to Officer Goodwin's office and explained his history of heart disease and his earlier heart palpitations. Id. Petrovic alleges that Officer Goodwin ignored his medical condition and offered him a “choice of ‘EXTRA DUTY' or ‘shot-write up' [sic] as punishment” for not standing during “count.” Id. Before he could make a choice, Goodwin “maliciously and sadistically, for the very purpose of causing harm” told him that he would have to perform two hours of extra duty “knowing that the temperature outside was extremely hot.” Id. Petrovic claims he attempted to show Officer Goodwin his medical pass allowing only sedentary work, but was told that he could sit down while picking up weeds, and that he was not permitted to take a water bottle outside. Id. at 2-3.

         Officer Lawrenz supervised Petrovic while he picked weeds. Id. at 3. Plaintiff alleges that around 11:00 AM, he lay down because he was “sweating profusely, ” but Officer Lawrenz told him that he could not lie down and did not allow him to have water. Id. He was released from extra duty at 12:00 PM and went to the central clinic to have his heart palpitations checked, “but he found no one there who could help him…because it was a Sunday” and was told to report back on Monday. Id. Petrovic claims that as a result of the events on July 19, 2015, he “suffered pain and suffering and injuries, including pain in the head and chest…for approximately four [] weeks.” Id. Plaintiff seeks monetary relief for his injuries. Id. at 6.

         In response to the alleged conduct of Officers Goodwin and Lawrenz, Petrovic claims that he sent a Standard Form 95-Claim for Damage, Injury or Death (SF 95) to the Central Office of the Federal Bureau of Prisons in Washington, D.C., per certified first class mail on November 5, 2015. (DE 18 at 1). On November 13, 2015, Petrovic received confirmation from the United States Postal Service tracking website that his package had been delivered. Id.; (DE 18-2). In his amended objections to the Magistrate's recommendations, Petrovic attached a document containing an alleged signature of a BOP employee who signed for the package received in Washington, D.C., on November 11, 2015. (DE 26 at 3). According to official records maintained by the BOP, and produced by the defendants, however, Petrovic has not filed any administrative remedies with the BOP in association with either of the claims listed in his complaint. (DE 16-1 at 5, 7).

         On May 27, 2016, Petrovic filed the instant action in the United States District Court for the Eastern District of Kentucky at Lexington. (DE 1). Defendants filed a motion to dismiss, or in the alternative, motion for summary judgment on February 21, 2017. (DE 16). Petrovic filed a response to defendants' motion on February 28, 2017 (DE 18), and defendants filed a reply on March 15, 2017. (DE 21). On March 28, 2017, Petrovic tendered a surreply to defendants' reply, without leave of the Court. (DE 22). In response to the Magistrate Judge's recommendations, Petrovic has filed objections and defendants have responded. (DE 24, 25).

         II. Analysis

         A. Federal Tort Claims Act

         a. Standard of Review

         Petrovic asserts that the United States is liable to him in tort. Pursuant to the doctrine of sovereign immunity, the United States must consent to be sued before a tort action may be maintained. Lundstrum v. Lyng, 954 F.2d 1142, 1145 (6th Cir. 1991). If the United States consents to be sued, the terms of that consent govern the jurisdiction of the district court. See F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994); see also United States v. Sherwood, 312 U.S. 584, 586 (1941). The Federal Tort Claims Act (FTCA) is a limited waiver of the government's sovereign immunity for certain tort claims. 28 U.S.C. §§ 1346(b), 2671-2680; see also Molzof v. United States, 502 U.S. 301, 305 (1992). Therefore, the terms of the Act govern the jurisdiction of this Court. F.D.I.C., 502 U.S. at 305.

         Federal Rule of Civil Procedure 12(b)(1) allows a defendant to attack subject matter jurisdiction. When subject matter jurisdiction is attacked, the burden of proof rests with the party asserting jurisdiction. Moir v. Greater Cleveland Regional Transit Authority, 895 F.2d 266, 269 (6th Cir. 1990). Rule 12(b)(1) attacks come in two forms: facial attacks and factual attacks. United States v. Ritchie, 15 F.3d 592, 598 (6Th Cir. 1994). In this case, the United States has factually attacked this Court's subject matter jurisdiction by claiming that the plaintiff has not complied with the exhaustion requirements of the FTCA, relying on an affidavit by a Paralegal of the Lexington Consolidated Legal Center who searched the BOP's administrative records. (DE 16).

         When a court rules on a factual attack of subject matter jurisdiction, “no presumptive truthfulness applies to the factual allegations, and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Id. (citations omitted). A court reviewing a factual attack on subject matter jurisdiction is free to consider evidence outside of the pleadings. Cartwright v. Garner,751 F.3d ...


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