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Wendt v. United States

United States District Court, E.D. Virginia, Richmond Division

April 17, 2017


v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION

          Robert E. Payne Senior United States District Judge

         This matter is before the Court on DEFENDANT'S MOTION TO DISMISS (ECF No. 7) . For the reasons set forth below, the motion will be granted and the action will be dismissed for lack of subject matter jurisdiction.

         INTRODUCTION

         Zebulon Wendt ("Wendt") filed this action under the Federal Torts Claim Act ("FTCA") against the United States alleging negligent conduct by the United States Marshals Service ("USMS") while Wendt was in their custody for a court appearance at the United States District Court in Richmond, Virginia. The United States seeks dismissal under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction.

         FACTUAL BACKGROUND

         On April 23, 2015, United States Immigration and Customs Enforcement arrested Wendt on federal charges for possession of obscene material, remanded him to the custody of the USMS, and transported him to the Pamunkey Regional Jail ("PRJ") in Hanover County, Virginia. (ECF No. 8-1 ¶ 4.) Wendt was housed at the PRJ pursuant to an Intergovernmental Agreement ("IGA") between the USMS and the PRJ that the USMS executed under its statutory discretion to enter into such agreements.[1] (Id. ¶ 5.)

         The IGA allows the USMS to house federal detainees with the PRJ at its facility. (ECF No. 8-4 at 3.) The agreement requires that the PRJ "shall accept and provide for the secure custody, safekeeping, housing, subsistence and care of Federal detainees in accordance with all state and local laws, standards, regulations, policies and court orders applicable to the operation of the Facility." (Id.) The IGA further requires the PRJ to "provide transportation and escort guard services for Federal detainees housed at its facility to and from the U.S. Courthouse." (Id. at 1, 7.) USMS does not supervise PRJ's day-to-day operations but retains the right to inspect the facility at its discretion. (Id. at 3, 12.)

         On July 16, 2015, PRJ officers transported Wendt from the PRJ to the United States District Court in Richmond, Virginia for an initial appearance. (ECF No. 8-1 ¶ 6.) PRJ officers parked within the sally port at the courthouse, escorted Wendt into the elevator, then took him to the USMS processing area within the USMS secure cellblock of the courthouse. (Id. ¶ 7.) At the time, Wendt was wearing leg irons, a belly chain, a black box, and handcuffs. (Id. ¶¶ 6-7.) PRJ officers then transferred custody of Wendt to USMS deputies, who, under normal USMS practices, would have removed Wendt's handcuffs, black box, and belly chain, but not his leg irons, in preparation for the initial appearance. (Id. ¶ 8; ECF No. 8-9, ¶¶ 5-6.) USMS deputies would then escort Wendt from the USMS processing area on the second floor of the courthouse to the courtroom for the initial appearance (ECF No. 8-1, ¶ 9; ECF No. 8-9, ¶ 6) and would have waited in the courtroom during the initial appearance. (Id.) Wendt does not contend that there was any deviation from these standard practices.

         After Wendt's initial appearance, USMS deputies escorted him out of the courtroom, onto the elevator, and back to the USMS processing area on the second floor. (Id.) USMS then transferred custody of Wendt to PRJ officers within this area. (ECF No. 8-1 ¶ 10, 8-9 ¶ 7.) Following normal protocol, PRJ officers placed handcuffs, a black box, and a belly chain back on Wendt, and then escorted him down the hall and onto the second floor elevator for transport to the basement and onto the PRJ van. (ECF No. 8-1 ¶ 10, 8-9 ¶ 6, 7.)

         The incident that forms the basis for Wendt's claim occurred in the elevator while Wendt was in the custody of PRJ officers. (ECF No. 8-1, ¶ 10.) According to the PRJ Incident Report, dated July 16, 2015, PRJ Officers Walker and Overton "escorted Plaintiff to the elevator inside the federal courthouse to load him into the transport van." (ECF No. 8-8.) Wendt "stepped over the threshold at the elevator door and his leg iron got caught in the track." (ECF No. 8-7.) Wendt fell and hit his head on the metal elevator floor, suffering injuries to his forehead, nose, and left ankle. (Id., ECF No. 8-8.) No USMS deputy was reported present at the time the alleged incident occurred. (ECF No. 8-9 ¶ 9.) After receiving notice from Court Security Officers of the alleged incident, USMS deputies arrived at the site of the incident and assisted PRJ officers in administering first aid to Wendt. (ECF No. 8-8.) Wendt was escorted to the PRJ van for transport back to PRJ a short time thereafter, (Id.) He received medical treatment at PRJ the same day. (Id.)

         PROCEDURAL BACKGROUND

         On December 2, 2015, Wendt properly filed an administrative claim with the Department of Justice seeking $100, 000 in damages. (ECF No. 12-2.) The Department of Justice responded on December 10, 2015, acknowledging receipt of the administrative claim and seeking further evidence to support it. (Jji.) Wendt's counsel provided additional documents to the Department of Justice on December 14, 2015 and March 23, 2016. (ECF No. 17.) From the record, the disposition of Wendt's administrative claim is unclear.

         On October 19, 2016, Wendt filed a FTCA action, 28 U.S.C. § 1364(b), §§ 2671-2800, against the United States, which responded on February 23, 2017 with a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1).

         LEGAL ...


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