IRENE M. KEELEY, District Judge.
Pending before the Court is the motion to vacate the order of substitution (dkt. no. 13) filed by the plaintiff, Melissa Wilson ("Wilson"). For the reasons that follow, the Court
This case arises as a consequence of alleged actions by several employees of the United States Department of Justice, Bureau of Prisons ("BOP"), all of whom worked at the United States Penitentiary Hazelton ("USP Hazelton"). Wilson originally sued those employees by name and now challenges the government's certification that those employees acted within the scope of their employment and that the United States should be substituted in their place.
Wilson has worked as a correctional officer at USP Hazelton for approximately nine (9) years; during that time, she has also served as the President of the Employees' Club. At some point, another correctional officer at the prison, Richard Thomas ("Thomas"), "demanded" that Wilson give him money from the Employees' Club "to help support his family." (Dkt. No.1 at 4). Wilson declined, a decision that allegedly resulted in a "year-long harassment campaign" against her by Thomas. The harassment included confrontational communications, efforts by Wilson to obtain a peace order against Thomas, and audits of the Employees' Club books.
Apparently, Thomas was not the only employee at USP Hazelton with whom Wilson had difficulties. She has alleged that the prison warden, Terry O'Brien ("O'Brien"), undermined her authority over the inmates by returning to them privileges she had taken away. She also asserts that the associate warden, William Odom ("Odom"), permitted Thomas to keep working inside the prison, even after Wilson had requested a threat assessment against him in August 2012.
After requesting the threat assessment, Wilson regularly checked on its status, but claims she was told only that it remained pending. During this time, she also filed an Equal Employment Opportunity ("EEO") sex discrimination complaint with the BOP, and expressed to her supervisors and the human resources department her concern that Thomas might "instigate [] an inmate attack on her." (Dkt. No. 1 at 6).
On March 4, 2013, Odom provided Wilson with a written memorandum she has characterized as a "bogus threat assessment." (Dkt. No. 1 at 7). O'Brien then advised Wilson that he would keep her separated from Thomas during working hours. Unsatisfied, Wilson reiterated her fear of an inmate attack incited by Thomas. She then received an addendum to the threat assessment, which alluded to "additional issues" that would be addressed in the future. Believing she had yet to see the real threat assessment, Wilson made several requests for it with her various supervisors. On April 9, 2013, O'Brien allegedly informed Wilson that, if she dropped her discrimination complaint, he would provide her with the real threat assessment. Wilson agreed.
On May 14, 2013, Wilson, who still had not received the real threat assessment from O'Brien, was attacked by an inmate, Shelton Harris ("Harris"), who punched her eleven (11) times around the head and neck. As a result of the attack, Wilson suffered "a black eye, laceration under her right eye, a concussion, swelling to the right side of her face, and contusion to her neck, shoulders and back." (Dkt. No. 1 at 10).
After she recovered from these injuries, Wilson returned to work on June 17, 2013, and finally received the real threat assessment, which ironically concluded that "there is no significant threat posed to the safety and wellbeing of Mrs. Wilson by inmates in the general population at USP Hazelton." (Dkt. No.1 at 10). The following day, she was allowed to return to her office within the prison walls. Later on that day, however, O'Brien pulled her from her office.
Two days later, on June 20, 2013, O'Brien informed Wilson that she would not be allowed to return to work inside the prison walls because of newly obtained information that her safety was at risk. (Dkt. No. 1 at 11). At some point, Wilson also learned from a special investigative agent, Shawn Burchett ("SIA Burchett"), that her attacker had been "paid off" to "take Wilson out," and that the assault was meant to be a stabbing. (Dkt. No. 1 at 11).
On January 31, 2014, Wilson filed a claim with the BOP seeking damages of $500,000 as a consequence of the May 14, 2013, attack. On March 25, 2014, the BOP responded that, "[u]nder the provisions of the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2675, we have six months from the date of receipt of your claim in this office, to review, consider, and adjudicate your claim." (Dkt. No. 1-2 at 2). The BOP allegedly then lost Wilson's claim, and ultimately directed her either to resubmit it or to file a claim in federal district court.
Accordingly, on February 2, 2015, Wilson filed a complaint in this Court, naming as defendants the BOP, O'Brien, Odom, and Thomas. In the "short and plain statement of the grounds for the court's jurisdiction," required by Fed. R. Civ. P. 8(a)(1), Wilson explained that her complaint was filed pursuant to the FTCA. She asserted the following counts:
Notably, Wilson failed to name Thomas in any of the substantive accounts of the complaint; he is, however, presumptively included in Count Four, a stand alone claim for punitive damages against "all defendants."
On March 5, 2015, the United States filed a "Notice of Substitution" and a "Certification of Scope of Employment," pursuant to 28 U.S.C. § 2679(d)(1). Based on the language of the statute, the Court immediately entered an order dismissing the individual defendants and substituting the United States as defendant in their place.
On that deadline, rather than responding to the motion to dismiss, Wilson moved (1) to vacate the order of substitution, (2) to extend further her time to respond to the government's motion to dismiss, and (3) to stay any ruling on the motion to dismiss until after the Court ruled on the motion to vacate substitution (dkt. no. 13). Wilson argued that she should be permitted to contest the government's certification of scope of employment. In its response to Wilson's motion to vacate, the United States contended that the order of substitution had been correctly entered based on the certification of scope of employment, and that Wilson should not be permitted to contest the certification. (dkt. no. 17). Wilson's motion to vacate is fully briefed and ripe for review.
Under the Federal Employees Liability Reform and Tort Compensation Act of 1988, also known as the Westfall Act, federal employees are absolutely immune from tort claims "arising out of acts they undertake in the course of their official duties."
28 U.S.C. § 2679(d)(1). Thus, once the Attorney General ("AG") files a certification that the subject employees were acting within the scope of their office or employment, the United States is substituted in place of those parties, and the case moves forward pursuant to the FTCA.
Scope of employment certifications are not absolute, however. A plaintiff may challenge the AG's scope of employment certification, which is then subject to review by the district court.
The Fourth Circuit has clearly laid out the process by which a district court should review scope of employment certifications:
When confronted with the question of scope of employment certification, district courts should limit discovery or evidentiary hearings to those instances in which "the certification, the pleadings, the affidavits, and any supporting documentary evidence [] reveal an issue of material fact."
Notably, when reviewing scope of employment certifications, the district court should "apply the law of the state where the conduct occurred."
Under West Virginia law, "[a]n act specifically or impliedly directed by the master, or any conduct which is an ordinary and natural incident or result of that act, is within the scope of the employment."
Conduct that "is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master" is outside the scope of employment.
In her motion to vacate substitution (dkt. no. 13), Wilson objects to the AG's certification and the subsequent substitution of the United States for the named defendants. The Court must now review that substitution in accord with the framework provided by the Fourth Circuit in
The AG's certification provides prima facie evidence that O'Brien, Odom, and Thomas were acting within the scope of their employment.
The Court looks at the actions of each of the certified employees to determine whether Wilson has established that each was acting outside the scope of his employment under West Virginia law.
Wilson has failed to meet her burden of establishing that Odom acted beyond the scope of his employment. The complete breadth of Wilson's allegations against Odom include: (1) he knew of her conflict with Thomas and that she was fearful of working with him among the inmates, yet he required her to do so; and (2) he gave her a "bogus threat assessment" in an effort to quash the situation and get Wilson to return to work.
There is no evidence disputing the AG's certification that Odom was acting within the scope of his employment at all times relevant to the complaint. Indeed, the only conclusion one can glean from the evidence is that Odom's actions in directing Wilson to work, even if unwise or negligent, were "1) the kind he is employed to perform; 2) occur[ed] within the authorized time and space limits; [and] 3) [was] actuated, at least in part, by a purpose to serve [his employer]."
Nor is there any evidence that Odom gave Wilson a "bogus threat assessment." Indeed, what Wilson has submitted to the Court amounts to nothing more than a memorandum from Odom regarding recommendations culled from the August 20, 2012, threat assessment — something clearly within the scope of Odom's duties.
Further, Wilson has failed to provide evidence that Odom acted in any way designed to advance his own independent purposes, or that benefitted him rather than his employer. Although Wilson may have a colorable argument that Odom acted negligently, she has neither pleaded such, nor indicated how that would remove his actions from the scope of his employment.
Accordingly, Wilson has failed to meet her burden of establishing, by a preponderance of the evidence, an improper certification that Odom was acting within the scope of his employment. Consequently, the Court
Wilson also has failed to meet her burden of establishing that O'Brien acted beyond the scope of his employment. Wilson's claims against O'Brien largely center around four allegations: (1) O'Brien knew that Wilson was fearful Thomas could provoke an inmate to attack her, did nothing, and ultimately responded to her concerns by stating that Wilson "should get out of that institution"; (2) on multiple occasions, O'Brien undermined her authority by returning to inmates items that she had taken away from them; (3) O'Brien coerced Wilson into dropping her EEO complaint for sex discrimination in exchange for a copy of the threat assessment; and (4) two days after Wilson returned to work, O'Brien removed her from work inside the prison walls after receiving information that her safety was at risk.
Wilson asserts that "[t]he attack was permitted by Terry O'Brien and William Odom to occur because the defendants [sic] failure to properly assess and resolve the dispute between the plaintiff and fellow correctional officer Richard Thomas." (Dkt. No. 14 at 1). She then reiterates the principal allegations from paragraphs 2, 36, 47, and 48 of her complaint regarding O'Brien.
Once again, Wilson has provided no evidence establishing — or even suggesting — how O'Brien acted beyond the scope of his employment. When taken as true, O'Brien's alleged statement to Wilson, that she should leave the prison if she was to afraid to work, can be characterized as no more than insensitive. Nonetheless, the warden of a federal penitentiary certainly acts within the scope of his employment when suggesting that an officer who truly feels unsafe might want to consider other employment. Notably, Wilson has failed to provide any evidence of how O'Brien's actions served his own, independent purposes or benefitted him rather than his employer.
That same conclusion holds true for O'Brien's other alleged actions as alleged by Wilson. Certainly, she cannot argue that O'Brien acted beyond the scope of his employment when he removed her from working inside the prison walls after receiving information that she was in danger. To the contrary, O'Brien's employment required him to protect Wilson once he perceived that she was the subject of a credible threat.
It may be true that returning items to inmates after Wilson had taken them away undercut Wilson's authority with those inmates. Nevertheless, this is something that clearly was within O'Brien's discretion and scope of employment.
Finally, regarding whether O'Brien was aware that Wilson was afraid to work with Thomas, or that she was concerned about an impending inmate attack at the behest of Thomas, Wilson has failed to show how O'Brien's decisions fall outside the scope of his employment. Certainly, a warden has the authority to weigh threats and concerns, and to make decisions regarding personnel and work assignments. Wilson has never argued that O'Brien's decision making was negligent, nor has she provided any evidence that he acted in any way that served his own, independent purposes, or benefitted him rather than his employer.
Accordingly, Wilson has failed to meet her burden of establishing, by a preponderance of the evidence, an improper certification that O'Brien was acting within the scope of his employment. The Court therefore
Wilson claims that Officer Thomas clearly acted in a manner outside the scope of his employment with the BOP when he instigated an inmate attack intended to injure Wilson.
Arguably, under
Wilson's complaint specifically asserts Counts One, Two, and Three against "Defendant BOP, Warden O'Brien and Associate Warden Odom." (Dkt. No. 1 at 11-12). Count Four asserts a claim for punitive damages, but does not specifically name any of the defendants, instead, simply referencing "the Defendants." (Dkt. No. 1 at 12-13). No factual allegations are asserted against Thomas in any of Wilson's substantive claims.
As to Count Four, in particular, even assuming Wilson intended to include Thomas among "the Defendants," he cannot be held liable in a stand-alone claim for punitive damages. "It is widely held that there is no cause action for punitive damages alone."
The Supreme Court of Appeals of West Virginia has explicitly held that, without an award of compensatory damages, a plaintiff may not recover punitive damages.
Other courts have recognized
Here, Wilson failed to name Thomas in any of her substantive claims for damages; thus, he cannot be held liable for compensatory damages under any of those claims. Under
Wilson also has moved to extend the deadline to file her response to the government's motion to dismiss (dkt. no. 9), and for the Court to stay its ruling on that motion pending its decision on the instant motion to vacate. Given the Court's denial of her motion to vacate, Wilson ought to be given an opportunity to respond to the government's motion to dismiss. Accordingly, she may have fourteen (14) days from the date of the entry of this Order to respond to the motion to dismiss, and the government shall have seven (7) days from the date of her response in which to file their reply.
The AG presented prima facie evidence that the certified employee defendants were acting within the scope of their employment. Furthermore, although Wilson properly objected to the certification, she has failed to meet her burden of proof to refute that certification. Finally, no genuine issue of fact material to the scope of employment decision is present, and there is no basis to order limited discovery or to conduct an evidentiary hearing. Although the Court declines to vacate the order of substitution, it grants Wilson an opportunity to respond to the government's motion to dismiss.
In sum, based on the foregoing, the Court:
It is so
The Court directs the Clerk to transmit copies of this Order to counsel of record.
The district court applied the ruling of the Supreme Court, reviewed the certification, and concluded that the plaintiff had failed to establish an improper certification. That decision was appealed to the Fourth Circuit, which affirmed. For ease of citation here, the Supreme Court's opinion is denominated
