United States District Court, D. Hawaii
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
AND/OR FOR SUMMARY JUDGMENT, WITH LEAVE TO AMEND
Michael Seabright Chief United States District Judge
United States of America (“Defendant” or the
“government”) moves to dismiss and/or for summary
judgment in this suit for negligence brought by Plaintiff
Benjamin Bishop (“Plaintiff” or
“Bishop”) under the Federal Tort Claims Act, 28
U.S.C. §§ 1346(b), 2671 et seq.
(“FTCA”). ECF No. 10. The government argues that
(1) Plaintiff's claims are barred under 28 U.S.C. §
2680(a), the discretionary function exception to the FTCA;
and (2) Plaintiff cannot otherwise demonstrate that the
government breached a duty of care owed to Plaintiff. The
court heard the Motion on September 26, 2016. Based on the
following, the Motion is GRANTED. The dismissal, however, is
with leave to amend. By November 21, 2016, Plaintiff may file
an amended complaint that properly pleads subject matter
jurisdiction. Defendant may answer or otherwise respond by
December 12, 2016.
May 19, 2016 Complaint alleges the following relevant facts,
which the court assumes as true for present purposes only.
See, e.g., Young v. United States, 769 F.3d
1047, 1052 (9th Cir. 2014) (reiterating in a case raising the
discretionary function exemption that courts “generally
accept as true the factual allegations of Plaintiffs'
October 12, 2014, Plaintiff was an inmate at the Honolulu
Federal Detention Center. ECF No. 1, Compl. ¶ 11.
“That evening[, ] a new prisoner, [a] very stocky and
strong 29-year old man, Michael Tanouye, was brought into Mr.
Bishop's cell and Mr. Bishop was told to watch this
prisoner as the prisoner was on suicide watch.”
Id. ¶ 12. “Unbeknowst to Mr. Bishop[, ]
[Tanouye] was having serious mental problems and had
attempted to rape a woman on an airplane flight to
Japan.” Id. ¶ 13. “FBI agents [had]
arrested Michael Tanouye for interfering with a flight crew
and aggravated sexual assault aboard an aircraft.”
Id. ¶ 15.
attendants and passengers told the FBI that a male passenger
was injured while struggling to subdue Tanouye.”
Id. ¶ 22. “Prior to the incident, Tanouye
was heard shouting something incomprehensible and his mother
told a flight attendant that he suffers from depression and
is on medication.” Id. ¶ 23. After the
incident, Tanouye's mother gave him a dose of his
medicine and he fell asleep. Id. ¶ 25.
captain of the plane decided to turn around two hours after
takeoff, after hearing it took three passengers to keep
Tanouye calm.” Id. ¶ 26. “Hawaii
sheriff deputies took Tanouye off the plane when it landed in
Honolulu and FBI agents arrested him and brought him to the
Honolulu Federal Detention Center, where he was held pending
arraignment.” Id. ¶ 27. “It is
clear that both the sheriff's department and FBI were on
notice that Mr. Tanouye was seriously dangerous and
deranged.” Id. ¶ 28. “He should
have never been placed in a cell with any other
person.” Id. ¶ 29. A Public Health
Service psychiatrist later explained to Bishop that Tanouye
“was a paranoid schizophrenic.” Id.
the morning of Monday[, ] October 13, 2014, Mr. Bishop awoke
as normal to find himself in his cell with Mr. Tanouye
sleeping.” Id. ¶ 30. “Soon
thereafter . . . Mr. Tanouye, a man much heavier than Mr.
Bishop, awoke, threw Mr. Bishop to the ground and began to
viciously beat Mr. Bishop about the head.” Id.
¶ 31. “Mr. Bishop struggled to get to the panic
button in the cell, but could not reach it because of Mr.
Tanouye's strength and aggression.” Id.
¶ 32. “Mr. Tanouye, after beating Mr. Bishop for
some time, told Mr. Bishop he would stop beating him if Mr.
Bishop would not touch the panic button.” Id.
¶ 33. “Mr. Bishop agreed and Mr. Tanouye
eventually stopped beating Mr. Bishop.” Id.
¶ 34. “After this incident Mr. Bishop asked Mr.
Tanouye why he beat him and Mr. Tanouye responded that he
thought Mr. Bishop was the devil.” Id. ¶
35. Bishop was taken to the Queen's Medical Center, where
he was treated for his injuries. Id. ¶¶
40-41. “Mr. Bishop suffered multiple contusions, his
left eye was completely swollen shut, he experienced numbness
to the left side of his face, multiple lacerations and
bruising to his face.” Id. ¶ 52.
that the personnel at the Honolulu Federal Detention Center
knew or should have known that Mr. Tanouye was suicidal, had
been on psychiatric medication and had violently tried to
rape a woman on a flight to Japan, Mr. Tanouye should have
never been put into a cell with Mr. Bishop.”
Id. ¶ 51. The Complaint concludes that
“[t]he negligence of the personnel at the Honolulu
Federal Detention Center resulted in Mr. Bishop[']s
injuries and pain and suffering.” Id. ¶
STANDARD OF REVIEW
Rule of Civil Procedure 12(b)(1) authorizes a court to
dismiss claims over which it lacks proper subject matter
jurisdiction. The court may determine jurisdiction on a
motion to dismiss for lack of jurisdiction under Rule
12(b)(1) so long as “the jurisdictional issue is [not]
inextricable from the merits of a case.” Kingman
Reef Atoll Invs., L.L.C. v. United States, 541 F.3d
1189, 1195 (9th Cir. 2008).
moving party “should prevail [on a motion to dismiss]
only if the material jurisdictional facts are not in dispute
and the moving party is entitled to prevail as a matter of
law.” Casumpang v. Int'l Longshoremen's
& Warehousemen's Union, 269 F.3d 1042, 1060-61
(9th Cir. 2001) (citation and quotation marks omitted);
Tosco Corp. v. Cmtys. for a Better Env't, 236
F.3d 495, 499 (9th Cir. 2001).
Rule 12(b)(1) jurisdictional attack may be facial or
factual.” Safe Air for Everyone v. Meyer, 373
F.3d 1035, 1039 (9th Cir. 2004) (citing White v.
Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). In a facial
attack, the court may dismiss a complaint when its
allegations are insufficient to confer subject matter
jurisdiction. When the allegations of a complaint are
examined to determine whether they are sufficient to confer
subject matter jurisdiction, all allegations of material fact
are taken as true and construed in the light most favorable
to the nonmoving party. Fed'n of African Am.
Contractors v. City of Oakland,96 F.3d 1204, 1207 (9th
Cir. 1996). In such a facial attack on jurisdiction, the