United States District Court, M.D. Pennsylvania
JOHN MERRILL, Plaintiff.
UNITED STATES OF AMERICA, Defendant.
REPORT AND RECOMMENDATION
MARTIN C. CARLSON, Magistrate Judge.
I. Statement of Facts and of the Case
The pro se plaintiff, John Merrill, is a federal prisoner who was housed at the United States Penitentiary, Canaan in 2011, and has now sued the United States. In his complaint, Merrill alleged that in June of 2011 the prison served inmates chicken fajitas. (Doc. 1.) According to the plaintiff, the chicken was bad, and was tainted with salmonella bacteria. (Id.) Consequently, the plaintiff contracted food poisoning, and suffered excruciating pain and symptoms which included headaches, diarrhea, abdominal pains, nausea, chills, vomiting, inability to eat and profuse sweating. (Id.) Alleging negligence and deliberate indifference on the part of the prison in the preparation and service of this food, the plaintiff seeks damages from the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2675, et seq., and as a Bivens constitutional tort action.
On December 9, 2013, the defendant filed a motion to dismiss this complaint. (Doc. 15.) This motion, in part, argued that the plaintiff had failed to exhaust his administrative remedies within the prison before filing this lawsuit, something that prisoner plaintiffs are required by the FTCA to do as a prerequisite to seeking relief in federal court. (Id.) In support of this motion, the defendant provided a declaration by a paralegal employed by the Bureau of Prisons attesting to the fact that the Bureau of Prisons has no record of receiving an administrative tort claim from the plaintiff. (Doc. 16-1.)
The plaintiff then responded to this motion raising a factual challenge to subject matter jurisdiction in a fashion which, in our view, created a question of fact relating to his compliance with this exhaustion requirement. Specifically, the plaintiff submitted a declaration which asserts that he completed an administrative tort claim in February 2013, during a prison lock-down at the institution. (Doc. 20.) According to Merrill, due to the conditions at the prison during this lock down he was unable to make a copy of the administrative tort claim, but instead was required to simply provide the claim to unit staff for forwarding to the Bureau of Prisons Regional office in Philadelphia. (Id.) After waiting six months for a response from that office, the period prescribed by statute, and having not received a response, the plaintiff then proceeded to file this complaint. (Id.)
In response to this factual assertion by the plaintiff, the defendant filed a reply brief, albeit a reply brief which did not address in any fashion this factual claim by Merrill that he forwarded an administrative claim to the Bureau of Prisons through prison staff during a prison lock down. (Doc. 21.) Instead, the defendant simply asserted that Merrill had the burden of proof on the issue of exhaustion, and argued that he had failed to meet his burden of proof in this case. (Id.)
Thus, in this case we were presented with a factual dispute regarding whether, and to what extent, Merrill had attempted to exhaust his administrative remedies. This factual dispute was presented to us on a sparse record, where the plaintiff swore that he submitted an administrative tort claim to the Bureau of Prisons through staff during a prison lock down, but the Bureau of Prisons legal office simply attested that it had no record of receiving that claim. On this contested, and incomplete, factual record, we concluded that the question of whether the plaintiff exhausted his administrative remedies could not be determined without further factual proof, and an assessment of the credibility of the plaintiff's claims, something which could not be done on the present, incomplete, factual record. Therefore, we recommended that this motion to dismiss be denied with respect to this exhaustion claim, and the issue of exhaustion of administrative remedies be deferred for further consideration on a complete factual record.
In reaching this recommendation we expressly relied, in part, upon directly applicable case law involving factual challenges to subject matter jurisdiction in FTCA litigation. In particular, we relied upon Moyer Packing Co. v. United States , 567 F.Supp.2d 737, 748 (E.D. Pa. 2008), an FTCA case in which the court held that when presented with such a fact-bound jurisdictional challenge are cautioned that:
A factual challenge contests the existence of subject matter jurisdiction, apart from any pleadings. Id . In reviewing a factual challenge, the court "is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case, " even where disputed material facts exist. Mortensen , 549 F.2d at 891. In a factual challenge, the plaintiff has the burden of persuasion to show that jurisdiction exists. Gould , 220 F.3d at 178; Mortensen , 549 F.2d at 891. If the defendant presents evidence contesting any allegations in the pleadings, the presumption of truthfulness does not attach to the plaintiff's allegations and the plaintiff may present facts by affidavit or deposition or in an evidentiary hearing. Gould , 220 F.3d at 177; Mortensen , 549 F.2d at 891, 893 n. 18. "[I]f there is a dispute of material fact, the court must conduct a plenary trial on the contested facts prior to making a jurisdictional determination. " Gould , 220 F.3d at 177.
Moyer Packing Co. v. United States , 567 F.Supp.2d 737, 748 (E.D. Pa. 2008) (emphasis added).
The district court adopted this Report and Recommendation, and denied this motion to dismiss without prejudice to the resolution of this issue on a more fully documented motion for summary judgment, or through a plenary trial on the contested facts prior to making a jurisdictional determination. (Doc. 26.)
The defendant then filed a motion to reconsider this ruling. (Doc. 28.) This motion to reconsider advances a curious argument. Despite the fact that we expressly relied upon directly applicable case law involving factual challenges to subjective matter jurisdiction in FTCA litigation, Moyer Packing Co. v. United States , 567 F.Supp.2d 737, 748 (E.D. Pa. 2008), to conclude that further factual development of the record was necessary here, the defendant erroneously asserts that we had confused exhaustion under the FTCA with PLRA exhaustion, and had exclusively relied upon cases that were wholly unrelated to the FTCA to reach our recommendation.
Since this defense assertion which forms the lynchpin of this motion to reconsider is incorrect, and the requirement that the defendant factually support factual challenges to subject matter jurisdiction under the FTCA is a well-settled legal ...