United States District Court, D. Maine
Hooker, pro se, James D. Concannon, Esq.
REPORT AND RECOMMENDATION
K. Johnstone United States Magistrate Judge
Samuel Hooker has filed this action, asserting claims under
the Federal Tort Claims Act (“FTCA”) against the
United States of America. This action arises from four
occasions in 2012 and 2013 on which, Hooker alleges, he was
injured when United States Marshals Service
(“USMS”) deputies transported him between the
Cumberland County Jail and the United States District Court
for the District of Maine in a negligent
manner. Presently before the court are:
• Defendant's Motion to Dismiss (Doc. Nos. 46-48),
which has been referred to the undersigned magistrate judge
for a report and recommendation as to disposition; and
• Hooker's “Motion to Stay Defendant's
Motion to Dismiss” (Doc. No. 51).
to Stay (Doc. No. 51)
the defendant filed the pending motion to dismiss, Hooker
filed a motion to stay this court's consideration of the
motion to dismiss, until such time as the court rules on
Hooker's most recent requests that the court appoint
counsel to represent him in this matter. In his motion to
stay, Hooker asserts that he “is presently connected to
a wound-vac and therefore confined to a hospital bed
twenty-four hours a day.” Doc. No. 51, at 1. As a
result, Hooker asserts, he has no access to a law library,
legal research materials, or other resources that would allow
him to adequately respond to the motion to dismiss.
motion to dismiss, filed pursuant to Fed.R.Civ.P. 12(b)(1),
the United States argues that this court lacks jurisdiction
to consider Hooker's FTCA claims. Specifically, the
defendant claims that the relevant conduct of the USMS
deputies underlying Hooker's claims constitutes
“discretionary conduct, ” and that harm arising
out of such conduct does not give rise to FTCA liability,
under the “discretionary function exception” to
the FTCA's waiver of sovereign immunity. See Def.'s
Mot. Dismiss (Doc. No. 48), at 6-7.
the defendant challenges the court's jurisdiction over
Hooker's FTCA claims on the basis that the discretionary
function exception applies, the plaintiff bears the burden to
demonstrate that the exception does not apply. See Gordo-
González v. United States, 873 F.3d 32, 36 (1st
Cir. 2017); Sánchez ex rel. D.R.-S. v.
United States, 671 F.3d 86, 97 (1st Cir. 2012). To meet
that burden, the plaintiff must be able to demonstrate, among
other things, that some federal statute, policy, regulation,
directive, or other mandate prescribes a course of conduct
that the deputies in this case failed to follow. Without
access to either a law library, counsel, or any discovery (as
this case has yet to proceed to the discovery stage of
litigation), plaintiff does not have access to any resources
that would enable him to even attempt to meet that burden.
and without comment on the merits of defendant's
arguments, the court finds that, under the particular
circumstances presented in this case by Hooker's medical
condition, the jurisdictional question raised by the
defendant is appropriately decided on summary judgment, after
the plaintiff has had an opportunity to conduct, at a
minimum, limited discovery relevant to that jurisdictional
question. See Blair v. City of Worcester, 522 F.3d
105, 111 (1st Cir. 2008) (“district court generally
retains ‘broad discretion in determining whether to
grant jurisdictional discovery'”; “a party
should be allowed to conduct jurisdictional discovery when
its position is not frivolous” (citations omitted)).
Further, as the plaintiff is unable to access any legal
resources, in an Order issued simultaneously with this Report
and Recommendation, the court grants Hooker's requests
for appointed counsel and directs the clerk's office to
attempt to locate counsel willing to represent Hooker pro
foregoing reasons, the district judge should deny the
defendant's motion to dismiss (Doc. Nos. 46-48) without
prejudice to the defendant's ability to assert the
arguments therein in a motion for summary judgment filed
after limited jurisdictional discovery occurs in this case.
Further, plaintiff's motion to stay (Doc. No. 51) should
be denied as moot.
objections to this Report and Recommendation must be filed
within fourteen days of receipt of this notice. See Fed. R.
Civ. P. 72(b)(2). Failure to file objections within
the specified time waives the right to appeal the district
court's order. S ...