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Bishop v. United States

United States District Court, D. Hawaii

September 28, 2016



          J. Michael Seabright Chief United States District Judge


         Defendant 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.[1] 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.


         Plaintiff's 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' complaint”).

         On 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.

         “Flight 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.

         “The 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. ¶ 50.

         “On 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.

         “Being 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. ¶ 53.


         Federal 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).

         The 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).

         “A 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 ...

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