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Fenwick v. United States

United States District Court, E.D. Kentucky, Southern Division, London

December 20, 2019



          Gregory F. Van Tatenhove United States District Judge

         Plaintiff 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.[1] Thus, this matter is ripe for review. For the reasons that follow, the Government's Motion will be granted.


         Although 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. 13.]

         More information regarding the circumstances of Lloyd Fenwick's death are provided by Defendant's response. [See generally R. 20-1 at 3-4.][2] 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.

         According 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.]

         No one 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 Plaintiff's case.



         Before 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 Amended Complaint.

         Regardless, 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)).

         A 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).

         Here, 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).

         A 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, ...

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