United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove United States District Judge
Thelma Fenwick is a resident of Suitland, Maryland.
Proceeding without counsel, Plaintiff filed an Amended
Complaint which, broadly construed, asserts a claim against
the Defendant, the United States of America, pursuant to the
Federal Tort Claims Act, 28 U.S.C. §§ 1346(b),
2671-80 (“FTCA”), for the personal injury and
wrongful death of her son while he was incarcerated at the
United States Penitentiary (“USP”)-McCreary
located in Pine Knot, Kentucky. [R. 11.] Defendant has filed
a motion to dismiss or, in the alternative, motion for
summary judgment. [R. 20.] Pursuant to the Court's Order
entered October 8, 2019, Plaintiff was required to file a
response to Defendant's motion within 45 days of that
Order. [R. 23.] However, that time period has now expired,
and no response has been filed by Plaintiff. Thus, this matter
is ripe for review. For the reasons that follow, the
Government's Motion will be granted.
the specific allegations of Plaintiff's Amended Complaint
are vague, Plaintiff's claim arises from an incident in
which her son, Lloyd Fenwick, died after he was assaulted by
other inmates at USP-McCreary. Plaintiff generally alleges
that Lloyd Fenwick was given a physical when he was in
custody. [R. 11 at 2.] Plaintiff alleges that, although Lloyd
Fenwick was “ADHD mental, ” the Defendants
“failed to put him in a mental institute…instead
of jail.” [Id.] Plaintiff further states,
“I know that's why that inmate stabbed him to
death.” [Id.] Plaintiff claims that, if
Defendants had checked Lloyd Fenwick's background, they
would have known that “he was ADHD.”
[Id.] With respect to the incident leading to her
son's death, she alleges that “[a]fter my son was
beaten and stabbed 8 times, unit staff responded and told my
son to order him to get on the ground.” [Id.
at 3.] Finally, Plaintiff states that: “Medical care in
the Federal Bureau of Prisons is a common excuse for lack of
timely health care. My son had asthma can't breathe lung
problems. Every Fed. Prison has a psychology
department.” [Id. at 4.] The Court previously
construed Plaintiff's allegations as alleging a tort
claim against the United States pursuant to the FTCA. [R.
information regarding the circumstances of Lloyd
Fenwick's death are provided by Defendant's response.
[See generally R. 20-1 at 3-4.] According to
Defendant, on October 8, 2016, USP-McCreary staff observed
other inmates assaulting Lloyd Fenwick in the common area of
the 3A Housing Unit. After staff immediately gave the inmates
an order to cease their actions and get on the ground, the
assaulting inmates ceased and fled the immediate area, while
Lloyd Fenwick complied and got on the ground. Responding
staff members placed Lloyd Fenwick on a stretcher and
transported him to the Health Services Unit, where lifesaving
measures were initiated. He was transported by local EMS to
the local community hospital for treatment of puncture wounds
he sustained in the assault and where he was pronounced dead
a little over an hour after the assault.
to Defendant (and not disputed by Plaintiff), BOP records
document any known or reasonably anticipated risk of an
altercation between inmates, either through inmate reports or
staff investigative efforts. Any inmate may report such a
risk and request separation from other inmates through
protective custody. These reports are documented,
investigated, and accommodated where a threat can be
reasonably confirmed. Defendant submits evidence (through a
Declaration of Wade Thompson, Captain at USP-McCreary) that
there is no record of any previous altercation between Lloyd
Fenwick and the inmates who assaulted him, nor is there any
record that Lloyd Fenwick requested protective custody to be
separated from the inmates who assaulted him. [R. 1 at 3; R.
1-3 at ¶4.]
disputes that Plaintiff has suffered trauma due to the sudden
and unexpected death of her son. Indeed, Defendant's
motion specifically recognizes Plaintiff's unquestionably
tragic loss. However, Defendant argues that the FTCA
discretionary function exception precludes lawsuits, such as
Plaintiff's, alleging that government employees
negligently exercised their discretion, particularly with
respect to decisions regarding prison safety and prison
designation or assignment. [R. 20-1 at 2.] In addition, to
the extent that Plaintiff's Amended Complaint suggests a
claim that Lloyd Fenwick was improperly designated to
USP-McCreary (rather than a mental health facility),
Defendant argues that she failed to properly exhaust this
claim before she filed this action. [R. 20-1 at 12-14.] For
these reasons, Defendant seeks dismissal of Plaintiff's
Amended Complaint for lack of subject matter jurisdiction.
[R. 20-1.] In the alternative, Defendant seeks summary
judgment in its favor on the grounds that there is
insufficient evidence to support the essential elements of
addressing the merits of Defendant's motion, the Court
notes that, in its October 8, 2019 Order directing Plaintiff
to respond to Defendant's motion, the Court specifically
warned Plaintiff that, should she fail to file a response by
the deadline provided by the Order, the Court may dismiss her
case for failure to prosecute, see Fed. R. Civ. P.
41(b), or grant Defendant's motion for any reason
adequately supported by the record, see Carver v.
Bunch, 946 F.2d 451, 454-55 (6th Cir. 1991). [R. 23.]
Plaintiff did not file a response to Defendant's motion,
despite this specific warning that her failure to do so may
result in the dismissal of her case for failure to prosecute.
Dismissal is generally warranted where the party fails to act
in the face of a clear prior warning that the case would be
dismissed. Bowles v. City of Cleveland, 129
Fed.Appx. 239, 244 (6th Cir. 2005). Thus, Plaintiff's
failure to file a response alone warrants dismissal of her
in the interest of completeness and finality, the Court will
also consider the substantive arguments set forth by
Defendant in its dispositive motion. Defendant moves to
dismiss Plaintiff's Amended Complaint pursuant to Federal
Rules of Civil Procedure 12(b)(1), (2), and (6), specifically
challenging whether this Court has subject matter
jurisdiction over Plaintiff's claims. Where, as here, a
party contends that the factual allegations of the Amended
Complaint, even if assumed to be true, fail to establish the
court's subject-matter jurisdiction over the
plaintiff's claims, that party presents a facial attack
upon the court's jurisdiction under Federal Rule of Civil
Procedure 12(b)(1). Am. Telecom Co., LLC v. Republic of
Lebanon, 501 F.3d 534, 537 (6th Cir. 2007); Gentek
Bldg. Prods. v. Sherwin-Williams Co., 491 F.3d 320, 330
(6th Cir. 2007). A district court assesses the validity of
such a motion using the same approach used to evaluate a
motion to dismiss for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6). Global Technology, Inc.
v. Yubei (XinXiang) Power Steering System Co., Ltd., 807
F.3d 806, 810 (6th Cir. 2015) (citing McCormick v. Miami
Univ., 693 F.3d 654, 658 (6th Cir. 2012)).
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the
sufficiency of the plaintiff's complaint. Gardner v.
Quicken Loans, Inc., 567 Fed.Appx. 362, 364 (6th Cir.
2014). When addressing a motion to dismiss, the Court views
the complaint in the light most favorable to the plaintiff
and accepts as true all “well-pleaded facts” in
the complaint. D'Ambrosio v. Marino, 747 F.3d
378, 383 (6th Cir. 2014). Because Plaintiff is proceeding
without the benefit of an attorney, the Court reads her
Amended Complaint to include all fairly and reasonably
inferred claims. Davis v. Prison Health Servs., 679
F.3d 433, 437-38 (6th Cir. 2012).
Defendant moved both to dismiss and for summary judgment,
attaching and relying upon declarations extrinsic to the
pleadings in support of its motion. [R. 20.] Thus, the Court
will treat Defendant's motion to dismiss the Amended
Complaint as a motion for summary judgment under Rule 56.
Fed.R.Civ.P. 12(d); Wysocki v. Int'l Bus. Mach.
Corp., 607 F.3d 1102, 1104 (6th Cir. 2010). See also
Ball v. Union Carbide Corp., 385 F.3d 713, 719 (6th Cir.
2004) (where defendant moves both to dismiss and for summary
judgment, plaintiff is on notice that summary judgment is
being requested, and the court's consideration as such is
appropriate where the nonmovant submits documents and
affidavits in opposition to summary judgment).
motion under Rule 56 challenges the viability of another
party's claim by asserting that at least one essential
element of that claim is not supported by legally-sufficient
evidence. Fed.R.Civ.P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 324-25 (1986). A party moving for
summary judgment must establish that, even viewing the record
in the light most favorable to the nonmovant, there is no
genuine dispute as to any material fact and that the party is
entitled to a judgment as a matter of law. Loyd v. St.
Joseph Mercy Oakland, 766 F.3d 580, 588 (6th Cir. 2014).
The burden then shifts to the nonmoving party to “come
forward with some probative evidence to support its
claim.” Lansing Dairy, Inc. v. Espy, 39 F.3d
1339, 1347 (6th Cir. 1994). However, if the responding
party's allegations are so clearly contradicted by the
record that no reasonable jury could adopt them, the court
need not accept them when determining whether summary
judgment is warranted. Scott v. Harris, ...