United States District Court, W.D. Washington
S. Zilly United States District Judge.
MATTER comes before the Court on Defendant's Motion to
Dismiss Pursuant to Fed.R.Civ.P. 12(h)(3), or, in the
Alternative, for Partial Summary Judgment, docket no. 40 (the
“Motion”). Having reviewed all papers filed in
support of, and in opposition to, the Motion, the Court
enters the following order.
Chester Anderson (“Anderson” or
“Plaintiff”) brings a personal injury action
alleging negligence under the Federal Tort Claims Act (FTCA).
See Third Amended Complaint for Damages Under the Federal
Tort Claims Act [28 U.S.C. §§ 2671-2680] for
Conscious Indifference to and Disregard for Plaintiff's
Known Medical Condition, docket no. 23 (the
“Complaint”), at ¶¶
29-38. Anderson is a Type II diabetic,
Id. at ¶ 6, who alleges he was injured while
working at the Federal Detention Center SeaTac (“FDC
SeaTac”). Anderson claims that he was forced to wear
work boots which caused diabetic blisters/ulcers to his feet.
Id. at ¶¶ 7-16. Anderson's FTCA
negligence claim stems from these injuries, and the FTCA is
the sole basis for subject-matter jurisdiction Anderson
asserts on this claim. Id. at ¶ 4.
estimates that he was first diagnosed with Type II diabetes
in 1995. Transcript of Deposition of Chester Anderson, docket
no. 41-1 (“Anderson Dep.”), at 38:11-15. It is
undisputed that he suffered from diabetes prior to his
incarceration in the FDC SeaTac, which began on September
2011 through January 7, 2013, and again from February 13,
2013, through February 28, 2013. See Id. at
was assigned to work detail in or around October 2011.
Id. at 67:20- 68:1. As part of his work, Anderson
was required to wear a pair of steel toed boots. Id.
at 68:2-4 (“It was a requirement, yes, for
work.”). In November 2011, Anderson began developing
diabetic ulcers on his feet. Id. at 61:13-20;
see also Complaint at ¶ 9 (“The BOP
Clinical Practice Guidelines for Management of Diabetes, June
2012 states that foot ulcers and amputations are
complications of diabetes that are frequently related to
testified that these ulcers “didn't start to get
progressively worse until probably 2012.” Anderson Dep.
at 61:13-20. By August 2012, his condition had deteriorated:
I just feel like it was the steel toe boots that we're
required to wear. That's what caused the blisters in the
first place, and the wear and tear on my feet, which formed
the blisters. And there is no real way to have your feet heal
when you have to wear them every day. You're required to
work every day on your schedule.
Id. at 67:8-16; see also the April 2, 2018,
expert report of Tim Gravette, docket no. 41-3 (“In the
case of Anderson with his medical issues the boots achieved
the opposite effect by causing further damage to his
alleges that he asked for but did not receive adequate
medical treatment from the Government while incarcerated in
FDC SeaTac. See, e.g., Complaint at ¶¶ 17-
24. The infections caused by the blisters/ulcers ultimately
reached the bones in Anderson's feet requiring surgery.
Id. at ¶¶ 25-27.
Rule 12(h)(3) Standard
the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”
Fed.R.Civ.P. 12(h)(3). The standard for a motion to dismiss
under Rule 12(h)(3) is the same as under Rule
12(b)(1)-“The objection that a federal court lacks
subject-matter jurisdiction . . . may be raised by a party,
or by a court on its own initiative, at any stage in the
litigation, even after trial and the entry of
judgment.” Arbaugh v. Y&H Corp., 546 U.S.
500, 506 (2006).
jurisdictional attack may be facial or factual. Safe Air
for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.
2004). A factual attack can rely on extrinsic evidence in
arguing that subject-matter jurisdiction does not exist.
Id. (citing Morrison v. Amway Corp., 323
F.3d 920, 924 n.5 (11th Cir. 2003)). On a motion to dismiss,
the Court may consider evidence beyond the complaint in
resolving a factual attack on jurisdiction. Id. Once
the moving party presents evidence properly brought before
the Court, the party opposing the motion must furnish
affidavits or other evidence ...