United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge
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.
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
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. (Id.
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.)
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.
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.)
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.)
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.
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.