The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
Plaintiffs Michael and Kimberly Farley bring this negligence and loss of consortium action against the United States of America pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), alleging injury as a result of Defendant's negligent control and supervision. Presently before this Court is Defendant's Motion to Dismiss for Lack of Jurisdiction.*fn1 For the following reasons, Defendant's motion is granted in part and denied in part.
The Buffalo Federal Detention Facility ("Detention Facility" or "Facility"), located in Batavia, New York, first opened in 1997. (Tryon Decl. ¶¶ 1, 3, Docket No. 10.) The Detention Facility is identified as a "Service Processing Center," owned by the Department of Homeland Security, Immigration and Customs Enforcement ("ICE"). (Id. ¶ 4.)*fn2 The Detention Facility holds as many as 650 detainees, 550 of whom are immigration detainees, and 100 of whom are United States Marshal Services pre-trial/pre-sentence detainees. (Id. ¶ 4.) ICE has responsibility over processing detainees, including deportation of aliens ordered removed from the United States. (Id.)
In 2003, ICE entered a contract with Asset Protection & Security ("Asset"), revised in 2006, making Asset responsible for operating the majority of the Detention Facility's housing units. (Id. ¶ 8.) The contract was amended again in 2008, making Asset responsible for all housing units. (Id.) Pursuant to this contract, Asset was to "furnish unarmed custody officer services, including management personnel, supervision, manpower, relief custody officers, uniforms, equipment, and supplies to provide custody officer services seven (7) days a week, twenty-four (24) hours per day at the [Detention Facility]." (Def.'s Ex. A, p. 10, Docket No. 10-1.)
Plaintiff, Michael Farley, was an Asset employee on September 23, 2008, working as a custody officer. (Comp. ¶ 16, Docket No. 1.) On that day, Mr. Farley was assigned to patrol a housing unit within the Detention Facility referred to as Housing Unit Bravo I. (Comp. ¶ 18.) While on patrol, Mr. Farley was assaulted by a felon-detainee who was known by Defendant to have violent propensities towards corrections officers, like Mr. Farley. (Comp. ¶¶ 19, 23.)
Thereafter, on September 3, 2010, Mr. Farley filed an administrative claim with the Department of Homeland Security, the Federal Law Enforcement Training Center, and the Federal Bureau of Prisons. (Comp. ¶ 6.) The Federal Law Enforcement Training Center denied the claim on September 14, 2010, and the Department of Homeland Security did likewise on February 22, 2011.*fn3
Plaintiffs commenced this action on March 8, 2011, by filing a Summons and Complaint in the United States District Court for the Western District of New York. Defendant filed a motion to dismiss on June 20, 2011. After an extension of the briefing schedule, the parties' briefs were deemed submitted as of September 12, 2011, at which time this Court took Defendant's motion under consideration without oral argument.
III. DISCUSSION AND ANALYSIS
A. Rule 12(b)(1) Standard
A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). The plaintiff bears the burden of establishing the existence of federal jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992).
Where, as here, the jurisdictional challenges are raised at the pleading stage, the court accepts as true all factual allegations in the complaint and draws all reasonable inferences in the plaintiff's favor. Sharkey v. Quarantillo, 541 F.3d 75, 83 (2d Cir. 2008). It is "presume[d] that general [fact] allegations embrace those specific facts that are necessary to support the claim." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 889, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990) (alterations added). The court may also consider affidavits and other evidence outside the pleadings to resolve the jurisdictional issue, but it may not rely on conclusory or hearsay statements contained in affidavits. J.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004), cert. denied, 544 U.S. 968, 125 S. Ct. 1727, 161 L. Ed. 2d 616 (2005). Indeed, courts "must" consult factual submissions "if resolution of a proffered factual issue may result in the dismissal of the complaint for want of jurisdiction." Robinson v. Gov't of Malaysia, 269 F.3d 133, 140 n. 6 (2d Cir. 2001).
B. Plaintiffs' FTCA Claims
The FTCA constitutes a limited waiver of the United States' privilege of sovereign immunity. Pursuant to the FTCA, a district court has jurisdiction over:
[C]ivil actions on claims against the United States, for money damages . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or ...