United States District Court, E.D. Kentucky, Central Division, Lexington
OPINION & ORDER
K. CALDWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT
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.
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).
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.
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.
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.
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,
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).
Federal Tort Claims Act
Standard of Review
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.
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).
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 ...