The opinion of the court was delivered by: Judge Rambo
Plaintiff David E. Ricketts ("Ricketts"), an inmate formerly confined at the United States Penitentiary in Lewisburg, Pennsylvania ("USP-Lewisburg"),*fn1 filed, pro se, this civil rights action on January 10, 2007. (Doc. 1.) Since filing the complaint, counsel has been appointed, and a second amended complaint has been filed, asserting six (6) claims set forth as Bivens*fn2 claims and a Federal Tort Claims Act ("FTCA")*fn3 claim. (Doc. 52.) Ricketts alleges that on August 20, 2004, while working as a welder at USP-Lewisburg, he was attacked by another inmate who stabbed him multiple times in the neck and upper back with a screwdriver. He alleges that as a result of Defendants'*fn4 negligence in overseeing the operations of the welding shop, he suffered catastrophic physical and mental injuries when the other inmate was able to enter the shop unnoticed and brandishing the screwdriver to be used as a weapon. He also alleges that Defendants were deliberately indifferent to the substantial risk of serious harm posed by the other inmate, in violation of the Eighth Amendment.
Before the court is a joint motion to dismiss and motion for summary judgment filed by Defendants. (Doc. 58.) For the reasons set forth below, Defendants' motion to dismiss with respect to the FTCA claim will be denied, and the motion for summary judgment with respect to the Bivens claims will be denied, without prejudice, under the provisions of Federal Rule of Civil Procedure 56(f).
In addressing the instant motion, the court first will set forth the relevant facts and procedural history. In setting forth the relevant facts, the court will note any factual disputes between the parties by presenting both parties' contentions.*fn5
During his incarceration at USP-Lewisburg, Ricketts' was employed by Federal Prison Industries, Inc. ("UNICOR") as a welder in the prison's UNICOR factory. (Doc. 70-2, Ex. 2, Decl. Ray Laws, Oct. 6, 2008, 20.) On August 20, 2004, Ricketts was attacked by inmate Richard Vardenski. (Doc. 69 ¶ 2.) The record reveals the following facts related to the attack.
At approximately 12:35 p.m. on August 20, 2004, Donald Rhinehart, a mechanic from the Millwright area of the factory, observed inmate Vardenski walking from the shearing area. (Doc. 78-2, Ex. E, Mem. D. Rhinehart, Aug. 20, 2004, 10.) Vardenski had removed a screwdriver from the Millwright tool room without seeking prior approval from staff and was walking from the Millwright area to the welding area where Ricketts was working at the time. (Doc. 69 ¶¶ 5, 7.)
Soon thereafter, Vardenski attacked Ricketts with the screwdriver, stabbing him multiple times.*fn6 (Doc. 69 ¶ 2.) Ricketts remembered inmate Vardenski approaching him from behind and hitting him with a pipe before he began stabbing him with the screwdriver. (Doc. 78-2, Ex. B, Lt. K. Gabrielson Mem., Aug. 23, 2004, 7.) Vardenski stabbed Ricketts in the neck and upper back because "he knew this would put a guy down immediately." (Doc. 69 ¶ 8; Doc. 70-2, Ex. 1, Decl. Ray Hoekman, Oct. 3, 2008, 5.) The Special Investigative Agent, Ray Hoekman, obtained the following information from Vardenski:
[Ricketts] went down immediately and went into the fetal position. Vardenski stated he continued to stab Ricketts and kick him in the head to see if he was faking his injuries. Vardenski stated he stabbed him 15 more times and seeing Ricketts was not moving, thought he may have killed him.
(Doc. 69 ¶ 9; Doc. 70-2 at 4.)
Vardenski then left the welding area. (Doc. 69 ¶ 10.) He returned to the Millwright area, where he hid his blood stained gloves behind a washing machine and dropped the screwdriver into a toolbox after cleaning it. (Id.) Officers from the Special Investigative Services ("SIS") unit at USP-Lewisburg later recovered the gloves and screwdriver. (Id. at ¶ 11.)
At approximately 1:00 p.m., the welding shop supervisor called for assistance when he discovered Ricketts laying on the floor in a puddle of blood in one of the welding bays. (Doc. 78-2, Ex. F, SIS Report, 12.) The parties dispute whether Ricketts was conscious at that time and identified Vardinski as his attacker. (Doc. 69 ¶ 13; Doc. 79 ¶ 13.)
As a result of the attack, Ricketts suffered a punctured lung and a partially severed spinal cord. (Doc. 78-2 at 12.) He was transported to Evangelical Hospital in Lewisburg, Pennsylvania, and later life-flighted to Geisinger Medical Center in Danville, Pennsylvania, where he was placed in the Special Care Unit in serious but stable condition. (Doc. 69 ¶ 15; Doc. 78-2, Ex. K, Incident Report, Aug. 20, 2004, 28.)
The parties disagree about the occurrence of previous incidents between Ricketts and Vardenski, and whether Defendants had knowledge of any previous incidents. Specifically, Defendants state that a search of records maintained by USPLewisburg officials reveals no reports of previous incidents between the two inmates.*fn7 (Doc. 69 ¶ 3.) Defendants do state that Ricketts and Vardenski engaged in a verbal disagreement on August 4, 2004. (Id.) However, they deny that this verbal disagreement was brought to the attention of any staff member prior to the August 20th attack. (Id. at ¶ 4.)
Ricketts does not deny that a previous verbal disagreement occurred between himself and Vardenski, but contests the timing of it, stating that it occurred during the week prior to August 4, 2004. (Doc. 79 ¶ 3.) Further, he denies that staff members were not informed of this disagreement prior to the August 20th attack. (Id. at ¶ 4.) Ricketts also denies that no prior incidents occurred between the two inmates. (Id. at ¶ 2.) Rather, he cites a memorandum filed by USP-Lewisburg Intelligence Officer J. Moscarello, which references an August 12, 2004, incident occurring at 8:15 a.m. between the two inmates.*fn8 (Doc. 78-2, Ex. D, Mem. J. Moscarello, Aug. 20, 2004, 9.)
On June 13, 2006, Ricketts filed a request for administrative remedy, numbered 417066-F1, requesting worker's compensation for the injuries he sustained as a result of the August 20, 2004 attack. (Doc. 69 ¶ 18; Doc. 70-3, Ex. 3, Attach. E, Administrative Remedy Retrieval, Aug. 11, 2008, 62.) USP-Lewisburg's Warden rejected this request as untimely on June 16, 2006. (Doc. 69 ¶ 19; Doc. 70-3 at 62.) Ricketts filed an appeal, numbered 417066-R1, with the North Central Regional Office on June 29, 2006, which was rejected as untimely. (Doc. 69 ¶ 20; Doc. 70-3 at 63.) Ricketts then filed an appeal, numbered 417066-A1, with the BOP's Central Office on July 31, 2006. (Doc. 69 ¶ 21; Doc. 70-3 at 63.) The Central Office joined the North Central Regional Office in rejecting Ricketts' appeal as untimely. (Id.)
3. Administrative Tort Claim
Ricketts submitted an administrative tort claim, dated August 15, 2006 and received by the Northeast Regional Office on August 28, 2006, seeking compensation for the injuries he sustained on August 20, 2004. (Doc. 70-3, Ex. 3, Attach. F, Administrative Tort Claim, Aug. 15, 2006, 68-70.) Ricketts asserted the following "complaints:" 1) "failure to maintain a safe and secure work environment;" 2) "failure to maintain supervision of a class A tool," and; 3) "failure to provide me with 70% of my grade 1 pay." (Id. at 70.) The Northeast Regional Office rejected the claim on October 23, 2006, because Ricketts was claiming a work-related injury. (Doc. 70-3, Ex. 3, Attach. F, Decision, Oct. 23, 2006, 72.) The Office asserted that the exclusive remedy for inmate work-related accidents is the Inmate Accident Compensation Act, and thus work-related injuries are specifically excluded from coverage under the FTCA. (Id.) The office also informed Ricketts that if he desired to file a claim under the Inmate Accident Compensation Act, he should contact the safety manager at the institution where he is currently confined. (Id.) The instant record does not indicate whether Ricketts filed such a claim.
Ricketts filed his complaint on January 10, 2007. (Doc. 1.) By order dated February 13, 2007, his complaint was dismissed for failure to comply with Federal Rules of Civil Procedure 8 and 10, and he was given an opportunity to submit an amended complaint within twenty (20) days. (Doc. 15.) Ricketts filed an amended complaint on March 6, 2007, (Doc. 17), and service of the complaint was directed by order dated May 30, 2007, (Doc. 21).
On September 21, 2007, Defendants filed a motion seeking dismissal of the amended complaint on the grounds that Ricketts failed to exhaust his administrative remedies and failed to file his complaint within the applicable two-year statute of limitations period. (Doc. 29.) On May 6, 2008, the court denied the motion to dismiss, concluding that (1) is was not clear from the face of the complaint and the undisputed documents on record that Defendants had in place an effective administrative remedy procedure, and (2) it was not clear from the face of the complaint and attached documents that his action is barred by the statute of limitations.*fn9 (Doc. 46.)
Also on May 6, 2008, the court granted Ricketts' motion for appointment of counsel provided that a member of the Pro Bono Panel of the Middle District of Pennsylvania Chapter of the Federal Bar Association volunteered to represent Ricketts. (Doc. 45.) On June 26, 2008, James F. Logue, Esquire filed his entry of appearance on Ricketts' behalf. (Doc. 49.) Accordingly, on August 5, 2008, the court appointed Mr. Logue as counsel for Ricketts. (Doc. 50.)
On August 18, 2008, through counsel, Ricketts filed a second amended complaint, adding party Defendant the United States of America. (Doc. 52.) On October 27, 2008, Defendants filed the instant motion to dismiss and for summary judgment. (Doc. 58.) The motion has been fully briefed and the court addresses it herein.
A. Motion to Dismiss - Rule 12(b)(1) Standard
Defendants have filed a motion which seeks dismissal of Ricketts' claim against the United States on the grounds that the court lacks subject matter jurisdiction over the FTCA claim. In Henderson v. Nationwide Mut. Ins. Co., 169 F. Supp. 2d 365 (E.D. Pa. 2001), the district court for the Eastern District of Pennsylvania stated:
Fed. R. Civ. P. 12(b)(1) provides that a party may move to dismiss a lawsuit for lack of jurisdiction over the subject matter. A 12(b)(1) motion may challenge jurisdiction based on the face of the complaint or its existence in fact. See Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (citing Mortensen v. First Fed. Savings and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). When the challenge is facial, the court must accept as true all well-pleaded allegations in the complaint and draw reasonable inferences in favor of the plaintiff. See Mortensen, 549 F.2d at 890. When the challenge to jurisdiction is factual, however, the court is not bound by the allegations in the pleadings. See id. Therefore, "no presumptive truthfulness attaches to plaintiff's allegations" for factual challenges. Id. Regardless of whether the challenge is facial or factual, the plaintiff bears the burden of persuasion. See id. Dismissal is proper where the federal claim is "made solely for the purpose of obtaining jurisdiction" or where such a claim is "wholly insubstantial and frivolous." Kulick v. Pocono Downs Racing Ass'n, Inc., 816 F.2d 895, 898 (3d Cir. 1987) (citing Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 90 L.Ed. 939 (1946)).
Id. at 367-68. Here, Defendants have attached a declaration in support of this motion. (Doc. 70-3, Ex. 3, Decl. Douglas S. Golding, Oct. 14, 2008, 32-38.) Courts can consider documents outside the pleadings when considering a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction as a factual challenge to jurisdiction. See Pa. Protection and Advocacy, Inc. v. Houston, 136 F. Supp. 2d 353, 359 (E.D. Pa. 2001). As such, the court deems Defendants as making a factual challenge to jurisdiction with respect to Ricketts' FTCA claim.
B. Motion to Dismiss - Rule 12(b)(6) Standard
Defendants have filed a motion which, in part, also seeks dismissal of the complaint on the grounds that Ricketts' complaint fails to state a claim upon which relief can be granted, as provided by Rule 12(b)(6) of the Federal Rules of Civil Procedure. The motion, however, goes beyond a simple motion to dismiss under Rule 12(b)(6) because it is accompanied by evidentiary documents outside the pleadings contravening Ricketts' claims. Rule 12(d) provides as follows:
If, on a motion under Rule 12(b)(6) or (12)(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.
Fed. R. Civ. P. 12(d). The court will not exclude the evidentiary materials accompanying Defendants' motion to dismiss because Ricketts' has also been given a reasonable opportunity to present material relevant to the motion. Thus, Defendants' motion to dismiss under Rule 12(b)(6) and for summary judgment, shall ...