                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


Nicola Merry,                          :
                                       :
                Plaintiff,             :
       v.                              :               Civil Action No. 13-0010 (CKK)
                                       :
National Park Service,                 :
                                       :
                Defendant.             :


                                   MEMORANDUM OPINION

       While visiting Ford’s Theater on June 16, 2011, plaintiff, a resident of Los Angeles,

California, alleges that she slipped and fell down 20 steps and suffered “massive bruising down

the entire right side of [her] body and head.” Compl. at 1, 2. Plaintiff sues the National Park

Service (“NPS”), as manager and operator of the Theater, for negligence. She blames her fall on

“the dim lighting in the stairwell, lack of signage advising of such, . . . lack of crowd control at

the door to the stairwell, and lack of verbal instructions from the Guard . . . .” Id. at 2.

       NPS moves to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6). Def.’s Mot. to Dismiss Pl.’s Compl. [Dkt. # 7]. Plaintiff has filed a cursory opposition

[Dkt. # 9], and NPS has replied [Dkt. # 10].1 In addition, plaintiff has moved (1) to amend the

complaint [Dkt. # 12], (2) for an enlargement of time to research her case and conduct discovery

[Dkt. # 13], and (3) to subpoena records [Dkt. # 17], and defendant has opposed those motions.

See Def.’s Opp’n to Pl.’s Mot. to Amend Her Compl. and Mot for Exten. of Time to Take


1
   Consistent with its duty to read a pro se litigant’s filings liberally, the Court has also
considered plaintiff’s filing captioned “Plaintiff’s Further Clarification and Objection to the
Motion to Dismiss My Complaint” [Dkt. # 16] since defendant has addressed this filing
notwithstanding its accurate description of the document as “an unauthorized surreply.” Def.’s
Opp’n to Pl.’s Mot. for Order to Subpoena Records or Take Discovery and Response to Pl.’s
Supp. Mem. [Dkt. # 19] at 1. The Court will refer to this document as plaintiff’s “surreply.”

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Discovery [Dkt. #15]; Def’s Opp’n to Pl.’s Mot. for Order to Subpoena Records or Take

Discovery and Response to Pl.’s Supp. Mem. [Dkt. # 19]. Upon consideration of the parties’

submissions, the Court will grant defendant’s motion to dismiss under Rule 12(b)(1) and will

deny plaintiff’s motions as moot.

                                         BACKGROUND

       Plaintiff alleges the following. On June 16, 2011, she entered the lobby of Ford’s Theater

with approximately 200 other visitors. “The group was directed . . . [to] the right side [of the

lobby] where a guard stood next to a roped area.” Compl. at 1. The guard “let everyone through

at once [without] cautions or directions . . . .” Id. As the group entered a doorway, “the light

grew dimmer . . . and right away [plaintiff] realized [that she] was at the top of a circular

stairwell . . . which was very narrow.” Id. at 1-2. Plaintiff then “fell down a flight of 20 steps

and landed at the bottom.” Id. at 2. Plaintiff states that “[i]t was dark in the theater. I staggered

to my feet dazed and very dizzy. Nobody came to help me.” Id. Plaintiff “managed to get . . .

across the room in the dark to a ramp and out of a door which led into the street. I could barely

see, I wanted to pass out.” Id. Eventually, plaintiff was taken by ambulance to Howard

University Hospital where she was treated for “massive bruising down the entire right side of

[her] body and head.” Id.

       Plaintiff alleges that when she returned to Los Angeles, she made two visits to hospital

emergency rooms for dizziness and nausea. She was diagnosed “with a head injury, concussion

[and went] for physical therapy and treatment . . . for several months.” Id. Plaintiff was “unable

to perform her normal work . . . of a part time tour guide[, and] [a]ny work . . . perform[ed] was

excruciating.” Id. Plaintiff exhausted her administrative remedies with NPS in June 2012 and

filed this civil action on January 7, 2013.



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                                           DISCUSSION

        “The United States is protected from unconsented suit under the ancient common law

doctrine of sovereign immunity.” Shuler v. U.S. 531 F.3d 930, 932-33 (D.C. Cir. 2008) (quoting

Gray v. Bell, 712 F.2d 490, 506 (D.C. Cir. 1983)). Through the Federal Tort Claims Act

(“FTCA”), the United States has consented to be sued for money damages for certain torts under

certain conditions. See 28 U.S.C. §§ 1346(b)(1), 2671-80. NPS argues that sovereign immunity

bars this suit because plaintiff’s claim falls under the FTCA’s discretionary function exception,

which provides that the FTCA's waiver of sovereign immunity shall not apply to:

           [a]ny claim based upon . . . the exercise or performance or the failure to
           exercise or perform a discretionary function or duty on the part of a federal
           agency or an employee of the Government, whether or not the discretion
           involved be abused.

28 U.S.C. § 2680(a). This exception, as its name suggests, “covers only acts that are

discretionary in nature,” United States v. Gaubert, 499 U.S. 315, 322 (1991), which the Supreme

Court has described as those acts that “involv[e] an element of judgment or choice.” Berkovitz v.

United States, 486 U.S. 531, 536 (1988). “The requirement of judgment or choice is not satisfied

if a ‘federal statute, regulation, or policy specifically prescribes a course of action for an

employee to follow.’ ” Gaubert, 499 U.S. at 322 (quoting Berkovitz, 486 U.S. at 536). If a court

determines that “the challenged conduct involves an element of judgment,” it must next decide

“whether that judgment is of the kind that the discretionary function exception was designed to

shield.” Id. at 322-23 (quoting Berkovitz, 486 U.S. at 536). In this vein, the Supreme Court has

stated that the exception “protects only government actions and decisions based on

considerations of public policy.” Berkovitz, 486 U.S. at 537. Because “[d]iscretionary function

determinations are jurisdictional in nature,” Cope v. Scott, 45 F.3d 445, 448 (D.C. Cir. 1995),




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this Court must dismiss the case for lack of subject matter jurisdiction if the exception is found to

apply.

         In determining whether the discretionary function exception applies in this case, the

Court utilizes the two-part test established in Gaubert. See Hsieh v. Consolidated Engineering

Servs., Inc., 698 F. Supp. 2d 122, 132 (D.D.C. 2010).

         1. Part One of the Gaubert Test

         The Court must first determine whether any “federal statute, regulation, or policy

specifically prescribes a course of action for an employee to follow.” Hsieh, 698 F. Supp. 2d at

132 (citation and internal quotation marks omitted). If so, the exception will not apply since “the

employee has no rightful option but to adhere to the directive” and, thus, cannot be found to have

performed a discretionary act. Id. (citations and internal quotation marks omitted). The relevant

case law makes clear that “in order to preclude the government from availing itself of the

discretionary function exception, a directive must ‘be mandatory and it must clearly and

specifically define what the employees are supposed to do.’ ” Loughlin v. United States, 286 F.

Supp. 2d 1, 8 (D.D.C. 2003) (quoting C.R.S. by D.B.S. v. United States, 11 F.3d 791, 799 (8th

Cir.1993)), aff'd in relevant part 393 F. 3d 155 (D.C. Cir. 2004). “A general directive that leaves

implementation decisions in the hands of federal officials is not sufficient” to overcome the

exception. Id.

         Plaintiff has not challenged defendant’s documented argument that decisions about

lighting, signage, and ushers at Ford’s Theater are not mandated by law, regulation or policy, see

Def.’s Ex. 1, Decl. of Karen Cucurullo [Dkt. # 7-1] ¶¶ 8, 12, and that NPS policy instead leaves

“decision-making authority,” including “public safety-related decisions” to “the discretion of the




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superintendents and other decision makers at the [managed site].” 2 Id. ¶ 6 (quoting NPS

Management Policies at Ch.8.2.5). Since the conduct at issue “involves an element of judgment

or choice,” Berkovitz, 486 U.S. at 536, the first part of the Gaubert test supports application of

the discretionary function exception.

       2. Part Two of the Gaubert Test

       The Court now must determine “whether th[e] judgment is of the kind that the

discretionary function exception was designed to shield.” Gaubert, 499 U.S. at 322-23. As

stated above, the exception protects decisions based in public policy “[b]ecause [its] purpose . . .

is to prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in

social, economic, and political policy through the medium of an action in tort . . . .” Id. at 323

(citations and other internal quotation marks omitted). Thus, decisions involving policy

implementation generally have been found to fall within the exception while “routine, garden-

variety maintenance decisions” generally have been found to fall outside of the exception.

Hsieh, 698 F. Supp. 2d at 136-37 (discussing cases).

       However, the Court “cannot make categorical determinations” but rather must “examine

the nature of the judgments at issue,” which, in turn, requires an examination of “the alleged

causes of [p]laintiff’s injuries and the alleged remedies [she] claim[s] should have been

undertaken.” Id. at 134 (citations omitted); see Cope, 45 F.3d at 448 (explaining that “[w]hile

we must review the complaint to determine what actions allegedly caused the injuries, we do so

only to determine whether the district court has jurisdiction over those actions, not to prejudge




2
   See Apr. 29, 2013 Order (advising plaintiff about responding to defendant’s motion to
dismiss or risking treatment of the motion as conceded).


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the merits of the case”). Plaintiff attributes her injuries to dim lighting, 3 insufficient warning

signs, and lack of crowd control and verbal instructions from “the Guard,” but she admits that

she “right away realized” that she was “at the top of a circular stairwell . . . which was very

narrow.” Compl. at 1-2. Not only are these allegations internally inconsistent but they also

suggest that the implied corrective measures -- i.e., brighter lighting, conspicuous signs, and a

verbal warning -- might not have prevented plaintiff’s fall. Furthermore, if applicable, “the

discretionary function exception immunizes even government abuses of discretion,” Shuler, 531

F.3d at 935, which would encompass the failure to warn allegations against the guard or usher.

       Defendant has shown through the Cucurullo declaration that NPS policy -- consistent

with NPS’ enacting statute codified at 16 U.S.C. § 1 -- requires that a natural or historic site be

maintained with minimal intrusion. Cucurullo Decl. ¶ 7. Consistent with this policy, “[t]he

lighting in Ford’s Theater features historic sconce-style lighting and other non-historic lighting

intended to complement the historic and museum environment within the structure,” which is

well-known to be the site of President Abraham Lincoln’s assassination in 1865. Id. ¶¶ 5, 9. In

addition, NPS “choose[s] to minimize the amount of signage . . . so as not to detract from

aesthetics of the historic location.” Id. ¶ 11. The Court finds that such decisions fall within the

discretionary function exception, thereby foreclosing plaintiff’s FTCA claim on the ground of

sovereign immunity. Hence, any amendment to the complaint would be futile.
3
      In her surreply, plaintiff mentions for the first time, and without any elaboration, that her
fall was also due to “[p]oor lighting maintenance on the stairwell.” Pl.’s Surreply at 3.
Although, as noted, plaintiff’s motion to amend the complaint is pending, it does not include the
proposed amended complaint as required by Local Civil Rules 7(i) and 15.1, and this surreply is
not a proper substitute. See Rollins v. Wackenhut Servs., Inc., 703 F.3d 122, 130-31 (D.C. Cir.
2012) (affirming denial of leave to amend where request made “as an alternative argument” in
response to motion to dismiss “neither included a proposed amended complaint nor otherwise
indicated that [plaintiff] would be able to plead sufficient facts to state a plausible claim for
relief”). Hence, the Court will not require NPS to address this last-minute conclusory allegation
likely inspired by NPS’s observation in the motion to dismiss that plaintiff had not “ma[d]e any
allegation related to alleged maintenance failures by NPS . . . .” Def.’s Mem. at 9 n.3.

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                                            CONCLUSION

       For the foregoing reasons, the Court will grant defendant’s motion to dismiss under Rule

12(b)(1) for lack of subject matter jurisdiction and will deny plaintiff’s pending motions as moot.

A separate final order accompanies this Memorandum Opinion.



                                             __________s/s__________________
                                             COLLEEN KOLLAR-KOTELLY
                                             United States District Judge
DATED: October 25, 2013




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