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Smith v. United States

October 9, 2007

CAROL SMITH, PLAINTIFF
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

The plaintiff, Carol Smith, brings this action on behalf of herself and as Personal Representative of the Estate of Erika Smith, the plaintiff's deceased daughter, against the United States of America (the "government") for alleged "gross negligence and reckless acts and omissions," Amended Complaint for Damages (the "Amended Complaint" or "Am. Compl.") at 1, by the United States Parole Commission (the "USPC"), the Federal Bureau of Prisons (the "BOP"), and the Court Services and Offender Supervision Agency (the "CSOSA") that resulted in the death of the plaintiff's daughter. Specifically, the plaintiff alleges that Anthony Quintin Kelly, a convicted felon, Am. Compl. ¶ 2, "was negligently, recklessly, and wantonly released from federal custody and supervised in the community by" the USPC, BOP, and CSOSA, id. at 1, which afforded Kelly the opportunity to "br[eak] into the Silver Spring, Maryland home of Erika's father, Greg Russell, and murder[] Erika and her father," id.at 2. Currently before the court is the government's motion to dismiss the Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (the "Gov't Mot."). After carefully reviewing the Amended Complaint, the government's Motion, and all memoranda relating thereto,*fn1 the Court concludes that the Motion should be converted to a motion for summary judgment and that summary judgment should be granted in favor of the government for the reasons that follow.

I. Background

The plaintiff alleges the following facts in her Amended Complaint. On April 16, 1996, Anthony Quintin Kelly was sentenced to ten years and six months in prison after pleading guilty to car theft and assaulting and threatening two individuals with a dangerous weapon. Am. Compl. ¶ 12. Kelly, who had "accrued a lengthy record of escalating criminal activity . . . dating back to 1982," id., was transferred to a halfway house in the District of Columbia known as Hope Village in December of 2001--"[m]ore than five years before his sentence would have been completed." Id. ¶ 13. Just three months later, on March 7, 2002, Kelly was placed on parole under the supervision of the CSOSA. Id. Kelly was initially placed under a relatively stringent level of supervision known as "maximum supervision," id. ¶ 26, but the CSOSA "reduced Kelly's level of supervision to 'medium supervision'" soon thereafter. Id. ¶ 27.

Kelly was arrested in Prince George's County, Maryland, for driving a stolen vehicle and assault of an officer on June 10, 2002, and ordered to appear in court on July 30, 2002. Id. ¶ 29. As a result of his arrest, Kelly's Court Security Officer ("CSO") recommended that Kelly's parole be revoked on June 20, 2002, but the USPC decided to return Kelly to "maximum supervision" status instead. Id. ¶ 30. Kelly then failed to appear in court on July 30, 2002, as required, leading to the issuance of a warrant for his arrest. Id. ¶ 31. The next day, Kelly broke into a gun store in Kensington, Maryland, where he stole five weapons, including the weapon used to kill the plaintiff's daughter. Id.

On August 6, 2002, Kelly broke into the home of Gregory Russell in Silver Spring, Maryland. Id. ¶ 16. "He viciously attacked Russell's [and the plaintiff's] daughter, nine-year-old Erika Smith, striking her multiple times in the face with a gun or other solid object and shooting her in the back" before shooting Russell "eight times in the leg and chest." Id. Kelly fled the scene "with cash and property from the residence, including the family Bible," leaving Erika Smith "to bleed to death in a closet." Id.

Ten days after he killed Erika Smith and her father, Kelly contacted his CSO to inform the CSO that he had missed his July 30, 2002 court hearing in Prince George's County. Id. ¶ 32. After receiving a call from a District of Columbia police officer seeking any information as to Kelly's whereabouts on August 21, 2002, the CSO called Kelly, then waited "several days" before mailing an arrest warrant request to the USPC by regular mail. Id. ¶ 32. The USPC received the request six days later and issued an arrest warrant the following day. Id. Kelly was captured on September 5, 2002, and indicted for the murders of Gregory Russell and Erika Smith on May 15, 2003. Id. ¶ 33. It was not until May of 2003 when the plaintiff learned that Kelly was the man who murdered her daughter. Id. ¶ 36.

As set forth in her Amended Complaint, the plaintiff asserts that the United States government should be held liable under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 (2000) (the "FTCA"), for the death of Erika Smith because the manner in which the various agencies of the government furloughed Kelly to Hope Village, released Kelly on parole, and supervised Kelly's parole "was grossly negligent and exhibited wanton indifference to the safety of members of the community, including Erika Smith, and [was] in violation of the policies, practices, procedures, rules, requirements, guidelines, regulations and standards applicable to the release and supervision of offenders within community corrections facilities and in the community." Id. at 2. The plaintiff alleges that at least one of these agencies of the government acted in a negligent manner at virtually every turn following Kelly's release from prison. For example, she alleges that the BOP failed to properly "supervise and monitor Hope Village's oversight of prisoners living at the halfway house," id. ¶ 15, thus allowing Kelly to "violate[] numerous conditions of his release during his stay at the halfway house which . . . should have resulted in [Kelly's] reincarceration [or] revocation or retardation of his parole date." Id. ¶ 21.*fn2

With respect to the USPC, the plaintiff alleges that the "[d]efendant failed to take the necessary and reasonable steps to verify information provided by Kelly to obtain early release into the community." Id. ¶ 19. Specifically, the plaintiff contends that the USPC released Kelly on parole "in part[] on his purportedly having earned a General Educational Development ('GED') high school equivalency diploma in March 2000 from the Ohio Department of Education," id. ¶ 20, when "[i]t was a readily ascertainable fact . . . that Kelly never actually earned the GED certificate," id. The plaintiff further alleges that the USPC's "policies . . . required verification that an offender was employed prior to being paroled into the community," id. ¶ 22, but that Kelly was released even though he "was never employed at any point after his December 21, 2001 transfer to Hope Village," id. Finally, the plaintiff alleges that the USPC "inexplicably failed to revoke Kelly's parole" after it learned "that Kelly had been charged with automobile theft and assaulting a police officer." Id. ¶ 30.

Although the plaintiff alleges that the CSOSA acted "negligently" and "recklessly" when it "reduced Kelly's level of supervision to 'medium supervision,'" id. ¶ 27, the bulk of her allegations against that agency concern the alleged errors made by Kelly's CSO. According to the plaintiff, Kelly's CSO "failed to meet the requirement[] of 'maximum supervision'" that the CSO conduct four "face-to-face meetings" with Kelly, two of which were supposed to be "in the 'field,'" id. ¶ 26, both before the CSOSA reduced Kelly's level of supervision and after the USPC reinstated its original level of supervision in the wake of Kelly's arrest. Id. ¶¶ 26, 30. Further, the plaintiff opines that "[h]ad the CSO fully and appropriately supervised Kelly, . . . the CSO would have discovered that Kelly was not employed," id. ¶ 28, a requirement of his parole, and "would have discovered additional violations and misconduct by Kelly, including . . . Kelly's 1) change of residence to his girlfriend's apartment without the requisite notice to [the d]efendant; 2) conduct resulting in the issuance of a temporary restraining order against Kelly ordering him not to contact his first wife . . . ; and 3) arrest while driving a stolen vehicle and assault on a police officer in Prince George's County, Maryland . . . ," id. ¶ 29. The plaintiff also alleges that Kelly's CSO "failed to take any action to detain Kelly or revoke his parole" after Kelly was arrested for automobile theft and assaulting a police officer, id. ¶ 31, and that when Kelly informed his CSO that Kelly had missed his court date in Prince George's County, "the CSO failed to report Kelly's action or the issuance of an arrest warrant for him" to the USPC, id. ¶ 32.

On March 29, 2005, the plaintiff presented these allegations through administrative claims to the USPC, BOP, and CSOSA. Id. ¶ 4. The claims were rejected on October 7, 2005. Id. & Ex. 1 (Letter from Barbara Matthews-Beck, Acting General Counsel to the Court Services and Offender Supervision Agency for the District of Columbia to Stuart H. Newberger, Esq. dated Oct. 7, 2005). The plaintiff filed her initial complaint with this Court on April 6, 2006, and filed her amended complaint on October 4, 2006. The government then filed its dismissal motion on November 15, 2006.

The government seeks to dismiss the Amended Complaint on two grounds. First, it argues that the court lacks subject-matter jurisdiction to hear this dispute because (1) the suit is time-barred by the statute of limitations set forth in the FTCA, Gov't Mem. at 8-12, Gov't Reply at 3-7, (2) the government is immune from suit for any actions taken by the USPC and the CSOSA under the doctrine of quasi-judicial absolute immunity, Gov't Mem. at 12-18, Gov't Reply at 7-10, and is immune from suit for any actions taken by the USPC and the BOP under the "discretionary function" exception to the FTCA, Gov't Mem. at 18-23, Gov't Reply at 10, and (3) the BOP is immune from suit under the FTCA "because Hope Village was not operated or managed by the BOP, but was instead an entirely independent private contractor." Gov't Mem. at 23-28. Second, the government argues that the plaintiff fails to state a claim for which relief can be granted because it owes no duty of care to individual citizens of the District of Columbia under the "public duty doctrine," Gov't Mem. at 30-32, Gov't Reply at 11-12, and would not have owed a duty of care to Erika Smith based on the facts alleged in the Amended Complaint. Gov't Mem. at 33-37, Gov't Reply at 12-15.

The plaintiff apparently concedes that the USPC has quasi-judicial immunity from suit in this case and that both the USPC and the BOP fall within the discretionary function exception to the FTCA's waiver of sovereign immunity. See Pl. Opp'n at 13-21 (discussing quasi-judicial immunity and the discretionary function exception to the FTCA only with respect to actions taken by the CSOSA); Gov't Reply at 7-8, 10 ("Just as [the p]laintiff failed to dispute the application of quasi-judicial immunity to the [USPC], [the p]laintiff has, likewise, failed to dispute [the d]efendant's argument that the actions of the [USPC] and the [BOP] are exempt from FTCA liability under the discretionary function exception.").*fn3 On the other hand, the plaintiff asserts that (1) the statute of limitations for the FTCA did not begin to run until May of 2003, which makes her claim timely, Pl. Opp'n at 5-13, (2) the allegedly negligent acts committed by Kelly's CSO were not functionally adjudicative in nature and therefore not protected by quasi-judicial immunity, id. at 13-15, (3) the discretionary function exception to the FTCA's waiver of sovereign immunity does not apply to the actions taken by Kelly's CSO because those actions were not discretionary in nature and were not rooted in public policy considerations, id. at 15-21, (4) the public duty doctrine does not apply in this instance because Kelly was a "dangerous person," thus creating a duty on the part of his CSO to prevent him from harming others, id. at 22-28, and (5) the government owed a duty of care to Erika Smith and the plaintiff based on the facts alleged in the Amended Complaint. Id. at 28-38. The government agrees in its Reply that the discretionary function exception does not apply to the negligent acts allegedly committed by Kelly's CSO, Gov't Reply at 10, but otherwise disputes the plaintiff's other arguments.

II. Legal Standard

As the Court previously noted, the government seeks to dismiss the Amended Complaint under both Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure.*fn4 "Rule 12(b)(1) presents a threshold challenge to the [C]court's jurisdiction, whereas 12(b)(6) presents a ruling on the merits with res judicata effect." Al-Owhali v. Ashcroft, 279 F. Supp. 2d 13, 20 (D.D.C. 2003). The two sub-parts of the rule are governed by distinct legal standards, which the Court discusses below. In addition, for the reasons set forth below, the government's Motion also requires a discussion of Rule 56(c) of the Federal Rules of Civil Procedure, which governs the Court's consideration of whether summary judgment in favor of one party or the other is appropriate. The Court therefore includes Rule 56(c) in its discussion of the legal standards applicable in this case.

A. Motion to Dismiss for Lack of Subject-Matter Jurisdiction under Rule 12(b)(1)

Broadly speaking, there are two types of Rule 12(b)(1) motions. "A facial challenge attacks 'the factual allegations of the complaint' that are contained on 'the face of the complaint,' while a factual challenge is addressed to the underlying facts contained in the complaint." Id. (quoting Loughlin v. United States, 230 F. Supp. 2d 26, 35-36 (D.D.C. 2002) (citations omitted)). Where the government makes a facial challenge, "the [C]court must accept as true the allegations in the complaint and consider the factual allegations of the complaint in the light most favorable to the non-moving party," Erby v. United States, 424 F. Supp. 2d 180, 182 (D.D.C. 2006) (citations omitted), just as it would on a motion to dismiss under Rule 12(b)(6), see Price v. Socialist People's Libyan Arab Jamhiriya, 294 F.3d 82, 93 (D.C. Cir. 2002) (noting that standard for facial challenge to subject-matter jurisdiction "is similar to that of Rule 12(b)(6)"). Where a factual challenge is made, the Court "may consider materials outside the pleadings" to determine whether it has subject-matter jurisdiction over the challenged case or claims, Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005) (citation omitted), and "the plaintiff bears the burden of establishing the factual predicates of jurisdiction by a preponderance of the evidence," Erby, 424 F. Supp. 2d at 182 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)) (other citations omitted). For this latter type of challenge, plaintiffs must "be given an opportunity for discovery of facts necessary to establish jurisdiction." Ignatiev v. United States, 238 F.3d 464, 467 (D.C. Cir. 2001) (citations omitted).

B. Motion to Dismiss for Failure to State a Claim under Rule 12(b)(6)

As with facial challenges to subject-matter jurisdiction under Rule 12(b)(1), the Court "must treat the complaint's factual allegations as true and must grant the plaintiff the benefit of all inferences that can be derived from the facts alleged" in considering motions to dismiss under Rule 12(b)(6). Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (internal quotations omitted). Unlike motions to dismiss under Rule 12(b)(1), factual challenges are not permitted under Rule 12(b)(6), and the Court may only consider the facts alleged in the complaint, any documents attached as exhibits thereto, and matters subject to judicial notice in weighing the merits of the motion. EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir. 1997). The Court's focus is restricted to the facts as alleged by the plaintiff, which must be sufficiently detailed "to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1959 (2007). It is incumbent upon the plaintiff to provide "more than labels and conclusions," id. at ___, 127 S.Ct. at 1959, "and a formulaic recitation of a cause of action's elements will not do." Id.

C. Motion for Summary Judgment under Rule 56(c)

Summary judgment under Rule 56 is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). When ruling on a Rule 56(c) motion, the Court must view the evidence in the light most favorable to the non-moving party. Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000)). The Court must therefore draw "all justifiable inferences" in the non-moving party's favor and accept the non-moving party's evidence as true. Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). The non-moving party, however, cannot rely on "mere allegations or denials," Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at 248) (quotation omitted), and "conclusory allegations unsupported by factual data will not create a triable issue of fact," Pub. Citizen Health Research Group v. FDA, 185 F.3d 898, 908 (D.C. Cir. 1999) (Garland, J., concurring) (internal ...


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