The opinion of the court was delivered by: Roger W. Titus United States District Judge
Plaintiffs instituted this action against the United States of America pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671-2680 (2006). Defendant moves to dismiss the complaint for lack of subject matter jurisdiction under the discretionary function exception of the FTCA and for failure to state a claim. Alternatively, Defendant moves to transfer the case to the United States District Court for the Middle District of Pennsylvania or the Western District of Missouri.
On October 15, 2002, inmate Rico Woodland (a/k/a Rico Sledge), son of Plaintiff Dianne D. Sledge and brother of Plaintiff Steven Sledge, was allegedly involved in an altercation with inmate Jesse L. Sparks at the Federal Correctional Institution-Allenwood ("FCI-Allenwood") in White Deer, Pennsylvania.*fn1 See Third Am. Compl. ¶ 9. Later that same day, Woodland was attacked in his cell by Sparks and inmate Ishmael Ford-Bey. Id. ¶ 10.*fn2 The beating purportedly lasted thirty minutes.*fn3 Id. ¶ 11.
Woodland sustained serious injuries from the beating. Id. ¶ 14. He suffered brain damage, was comatose for several months, and never regained full use of his arms and legs. Id. (alleging that Woodland was "functionally quadraparetic"). He also suffered "severe psychological and emotional distress, including intense episodes of agitation and crying out," and as a result, was prescribed anti-psychotic medications. Id. However, Woodland's condition purportedly improved while he was hospitalized at the Fort Worth Federal Medical Center in Fort Worth, Texas. Id. ¶ 15.
In March 2005, Woodland was transferred to the United States Medical Center for Federal Prisoners, in Springfield, Missouri ("USMC-Springfield"). Id. ¶ 17. His condition is alleged to have deteriorated rapidly, id., and he purportedly experienced severe pain, hunger, and illness while at the medical center, id. ¶ 19.
After Woodland and another inmate expressed concerns over the care Woodland was receiving, his mother, Plaintiff Dianne Sledge, and his sister, Teresa Sledge, arranged to visit USMC-Springfield. Id. ¶ 21. They allegedly requested and received advance approval from USMC-Springfield employees to visit Woodland in November 2005. Id.
In November 2005, they traveled from Washington, D.C. to Springfield, Missouri, but USMC-Springfield employees allegedly refused to allow Plaintiff Dianne Sledge and Teresa Sledge to see Woodland.*fn4 Id. ¶ 23. A USMC-Springfield employee allegedly told the visitors that although she could arrange a visit, she would not do so. Id.
Plaintiffs allege that because Plaintiff Dianne Sledge and Teresa Sledge were prevented from visiting Woodland, (i) Woodland suffered severe emotional distress, causing further deterioration of his health, id. ¶ 26, and (ii) Plaintiff Dianne Sledge suffered "severe emotional distress, including depression, dejection, hopelessness, sorrow, obsessive worry, sleeplessness, stomach pain, and headaches," id. ¶ 25.
Plaintiff Dianne Sledge never saw her son alive again, id. ¶ 23, and he died in federal custody on January 29, 2006, id. ¶ 27.
On September 7, 2007, approximately sixteen months after commencing this action against the United States of America under the FTCA, Plaintiffs Steven Sledge, as Personal Representative of the Estate of Rico Woodland, and Dianne Sledge filed their Third Amended Complaint.*fn5 The Third Amended Complaint contains six counts.
Counts I and II, brought by Steven Sledge in his representative capacity, consist of a personal injury claim and a wrongful death claim for the alleged failure of Federal Bureau of Prisons ("BOP") employees at FCI-Allenwood, Pennsylvania, to prevent or stop the October 15, 2002 attack on Woodland by Sparks and Ford-Bey. Compl. ¶¶ 7, 12-13, 36-53. Plaintiffs allege that BOP employees at FCI-Allenwood knew or should have known (i) that inmates, including Sparks and Ford-Bey, "posed a specific, concrete and immediate threat to Woodland's life," id. ¶¶ 40, 49; and (ii) that Woodland was being attacked by Sparks and Ford-Bey, id. ¶¶ 41, 50. Plaintiffs further allege that BOP employees at FCI-Allenwood had "a specific mandatory duty to take some action" and "specific duties to monitor activities," but failed to do so, id. ¶¶ 40-41, 50-52, thereby causing Woodland's injuries and death, id. ¶¶ 42, 51.
Count III, also brought by Steven Sledge in his representative capacity, is a personal injury claim and Count IV, brought by Dianne Sledge, is a wrongful death claim for the purported failure of BOP employees at USMC-Springfield, Missouri, to provide adequate sustenance and care. Id. ¶¶ 8, 18-19, 54-69. Plaintiffs allege that BOP employees caused Woodland to suffer further injuries, including severe pain, hunger, and illness, while he was at the medical center. Id. ¶¶ 19, 59.
Counts V and VI seek to recover for the emotional distress that Woodland and Plaintiff Dianne Sledge allegedly suffered when BOP employees at USMC-Springfield denied them the opportunity to see each other in November 2005. Id. ¶¶ 8, 25-26, 70-84. Plaintiffs allege that BOP employees at USMC-Springfield (i) knew that Dianne Sledge had permission to visit her son; (ii) was aware of the distance she had traveled and the expenses she had incurred; (iii) knew of Woodland's failing health; (iv) knew or should have known that Woodland might never again see his mother; (v) knew or should have known that refusing to allow Woodland to see his mother involved unreasonable risks to his emotional and physical health; and (vi) had no legitimate justification for denying the visit. Id. ¶¶ 73, 81.
On December 6, 2007, Defendant filed a Motion to Dismiss Third Amended Complaint or, in the Alternative, to Transfer. Defendant moves to dismiss Counts I, II, V, and VI under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction based upon the discretionary function exception of the FTCA, 28 U.S.C. § 2680(a). Def.'s Mot. to Dismiss 17-25, 34-38. Defendant also moves to dismiss all six counts under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Id. at 16-17, 25-34. Alternatively, in the event the complaint is not dismissed in its entirety, Defendant requests that the Court transfer the case to the United States District Court for the Middle District of Pennsylvania or the Western District of Missouri. Id. at 38-41.
In June 2009, the Chief Justice of the United States assigned the case to the undersigned pursuant to 28 U.S.C. § 292(d). After the assignment and designation, the Court granted Plaintiffs leave to file a supplemental memorandum, granted Defendant leave to file a response, and conducted a hearing on Defendant's Motion to Dismiss Third Amended Complaint or, in the Alternative, to Transfer on January 26, 2010. No discovery has taken place.
I. Federal Rule of Civil Procedure 12(b)(1)
A motion to dismiss filed pursuant to Fed. R. Civ. P. 12(b)(1) presents a threshold challenge to the court's subject matter jurisdiction. A court may resolve a Rule 12(b)(1) motion in one of two ways.
First, if the defendant challenges the legal sufficiency of the plaintiff's jurisdictional allegations, then a court may address the challenge on the face of the complaint. See Phoenix Consulting Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000); Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992). "Although a court must accept as true all the factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), plaintiffs' factual allegations in the complaint will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim." Wright v. Foreign Serv. Grievance Bd., 503 F. Supp. 2d 163, 170 (D.D.C. 2007) (quotation marks, alterations, and citation omitted).
Second, if the defendant has challenged the factual basis of the court's jurisdiction, then a court may consider information extrinsic to the complaint and weigh conflicting evidence to determine its jurisdiction. See Phoenix Consulting Inc., 216 F.3d at 40. The plaintiff has the burden of establishing jurisdiction by a preponderance of the evidence. See, e.g., Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Moms Against Mercury v. FDA, 483 F.3d 824, 827 (D.C. Cir. 2007); Hollingsworth v. Duff, 444 F. Supp. 2d 61, 63 (D.D.C. 2006). Once a court "determines that it lacks subject matter jurisdiction, it can proceed no further." Simpkins v. D.C. Gov't, 108 F.3d 366, 371 (D.C. Cir. 1997). Correlatively, if a court is uncertain as to whether jurisdiction exists, it cannot proceed to consider the merits of the case. See, e.g., Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101 (1998); Bell v. Hood, 327 U.S. 678, 682 (1946) ("Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy."); United States ex rel. Settlemire v. District of Columbia, 198 F.3d 913, 920 (D.C. Cir. 1999) (stating that Rule 12(b)(1) jurisdictional challenges should be addressed before Rule 12(b)(6) challenges).
II. Federal Rule of Civil Procedure 12(b)(6)
A motion to dismiss filed pursuant to Fed. R. Civ. P. 12(b)(6) tests the sufficiency of the complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The court must accept as true all of the well-pleaded factual allegations in the complaint but need not accept a plaintiff's legal conclusions. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. at 1949 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. See also Twombly, 550 U.S. at 555 ("Factual allegations must be enough to raise a right to relief above the speculative level."). "In determining whether a complaint ...