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Anderson v. United States

United States District Court, W.D. Washington

June 22, 2018

CHESTER ANDERSON, Plaintiff,
v.
THE UNITED STATES OF AMERICA, Defendant.

          ORDER

          Thomas S. Zilly United States District Judge.

         THIS 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”).[1] Having reviewed all papers filed in support of, and in opposition to, the Motion, the Court enters the following order.

         Background

         Plaintiff 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.[2] 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.

         Anderson 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 48:12-19.

         Anderson 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 neuropathy.”).

         Anderson 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 feet.”).

         Anderson 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.

         Discussion

         I. Rule 12(h)(3) Standard

         “If 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).

         A 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 ...


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