MICHAEL L. FARLEY Plaintiff,
UNITED STATES OF AMERICA, Defendant.
DECISION AND ORDER
WILLIAM M. SKRETNY, Chief District Judge.
Michael Farley brings this negligence action against the United States of America under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b). That Act waives the United States' sovereign immunity with respect to some limited types of claims. Presently before this Court is Defendant's second motion to dismiss (or, in the alternative, for summary judgment), in which it argues that certain exceptions to the Act apply here and serve to prohibit Farley from bringing this suit. For the following reasons, Defendant's motion is denied.
A. Factual history, 
On September 23, 2008 at approximately 9:04 p.m. Michael Farley was working as a corrections officer at the Buffalo Federal Detention Facility located in Batavia, New York, in the section of the facility identified as "Bravo 1" when he was assaulted by an inmate. (Def.'s Stmnt. ¶¶ 81-85; Pl.'s Stmnt., ¶ 71-74). That inmate, whose name is being intentionally withheld, had just served 28 days in the Special Housing Unit, known as "SHU" and had returned to Bravo 1 around noon that day. (Pl.'s Stmnt., ¶¶ 71-72.) According to Farley, who was the only custody officer on duty in Bravo 1 at the time, he gave a direction at roughly 9:00 p.m. to release the inmates in the assailant's block for scheduled recreation time, when, soon after, the assailant approached him from behind, exclaimed, "where's my [expletive] money, give me my [expletive] money, " and began to assault him. ( Id., ¶ 85.) Though his recollection of the event is not completely clear, Farley does remember being repeatedly struck on the head, struggling with the inmate, and trying to use his radio to call for help. ( Id., ¶¶ 85, 86.) Shortly thereafter, at approximately 9:05 p.m., two officers arrived, stopped the assault, and handcuffed the inmate. (Def.'s Stmnt., ¶ 85.) Farley was then taken to the hospital by a co-worker. (Pl.'s Stmnt., ¶ 87.)
Although that description captures the essence of the altercation leading to this litigation, the circumstances of Farley's employment prove relevant to the central motion before this Court. After all, Farley has not sued the inmate who assaulted him, but the United States. Thus, this Court notes that the Detention Facility where the assault occurred is owned by the Department of Homeland Security, Immigration and Customs Enforcement ("ICE"), an arm of the United States government. Yet Farley was not an ICE or a federal employee; he was employed by Asset Protection & Security ("Asset"), which, under the terms of a contract with ICE in effect at the time of the assault, 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.)
B. Procedural history
Farley commenced this action on March 8, 2011 by filing a complaint in this Court. Defendant then filed a motion to dismiss on June 20, 2011. On March 4, 2012, this Court granted Defendant's motion with respect to a loss of consortium claim brought by Farley's wife, and denied the motion on one aspect of Farley's FTCA claims. This Court dismissed, however, any claims that sought to hold the United States liable for alleged negligence in the selection and supervision of Asset employees; it also dismissed any claims that the United States "fail[ed] to exercise its authority to inspect Asset's compliance with the terms of the contract." (Decision and Order, at 12; Docket No. 20.) In refusing to fully grant the United States' motion to dismiss, this Court noted that "the record is insufficiently developed" to issue a final ruling with respect to all of Defendant's jurisdictional arguments for dismissal. (Id.)
Thus the parties conducted discovery on the issue of jurisdiction, after which, on May 22, 2013, Defendant filed a second motion to dismiss, or in the alternative, motion for summary judgment. Defendant also filed a motion to strike "Plaintiff's Statement of Material Facts or at least those portions that contain argument, speculation, or characterization of facts or fail to cite evidence that would be admissible." (Docket No. 66.) Briefing on those motions concluded on October 31, 2013. This Court then took the motions under consideration. As discussed supra at n. 2, the motion to strike will be denied. The motion for dismissal is discussed below.
A. Legal standards
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).
The jurisdictional challenge here is based on sovereign immunity, which shields the United States from suit without its consent and strips this Court of jurisdiction. See, e.g., F.D.I.C. v. Meyer , 510 U.S. 471, 475, 114 S.Ct. 996, 1000, 127 L.Ed.2d 308 (1994). In resolving such a challenge, the court may consider affidavits and other evidence outside the pleadings. See 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 ...