UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION CLARALeBEAU,as i Administrator of the Estate of Andrea Circle Bear, a/k/a 4:23-cv-4038 “Andrea High Bear,” deceased, Plaintiff MEMORANDUM OPINION . AND ORDER _ VS. UNITED STATES OF AMERICA, Defendant

Pending before the Court is Defendant’s motion to dismiss Plaintiffs claims brought pursuant to the Federal Tort Claims Act (hereinafter FTCA), (Doc. 5). Plaintiff has responded, (Doc. 24), and Defendant has replied, (Doc. 28). As

explained below, the Court reserves ruling on Defendant’s motion to dismiss pending jurisdictional discovery. The Court will rule on the motion following submission by the Parties of materials for the Court’s consideration regarding the Court’s jurisdiction. Plaintiff requested oral argument on the motion to dismiss.

- (Doc.:26). The Court denies the motion, which Plaintiff may renew if appropriate. Plaintiff requests that she be given leave to amend her complaint to preclude dismissal. (Doc. 24, PgID 699). As discussed below, the Court grants leave to amend and directs Plaintiff to comply with the requirements of LR 15.1.

BACKGROUND Plaintiff is the mother of the decedent, Andrea Circle Bear, a/k/a/ Andrea High Bear (hereinafter Andrea Circle Bear), and the Grandmother and caretaker of Ms. Circle Bear’s six minor children. She serves as the administrator of the decedent’s estate. (Doc. 1-1). The claims are for negligence and wrongful death pursuant to 28 U.S.C. §§ 1346(b) and 2674. Count I alleges the Defendant breached its duty of care by transferring Ms. Circle Bear from South Dakota to Texas; Count II alleges negligence and wrongful death in connection with the

manner of transfer and the treatment of Ms. Circle Bear at the conclusion of the transfer; and Count III alleges negligence and wrongful death in connection with

the Defendant’s duty to provide adequate medical care to Ms. Circle Bear. (Doc. ^[1]). Ms. Circle Bear pleaded guilty to maintaining a drug-involved premises in October, 2019, and was sentenced to 26 months imprisonment on January 14, 2020. (Id.) She was six months pregnant, and her pregnancy was deemed “high risk.” At the time, she was detained in the Winner City Jail, with her medical care being handled in Winner and Pierre, S.D. In the course of the sentencing proceeding, the Judge recommended that she be sent to Federal Medical Center, Carswell (FMC Carswell), in Fort Worth, Texas. Ms. Circle Bear was transferred by plane to FMC Carswell on March 20, 2020. Plaintiff alleges that Ms. Circle

Bear was housed in crowded, unsafe, and unsanitary conditions at FMC Carswell, where she contracted Covid-19 on or about March 26, 2020. She received medical care at FMC Carswell on or about March 28, 2020, was sent to John Peter Smith Hospital (JPS), and returned to FMC Carswell on the same date. Plaintiffs allege that after Ms. Circle Bear’s symptoms worsened, she was admitted to JPS Hospital on March 31, 2020. She was assigned to the intensive care unit, intubated, and placed on a ventilator. While she was in an induced coma, doctors performed an emergency Caesarian-section on April 1, 2020, and delivered a baby girl. Ms. Circle Bear remained in a coma and died on April 28, 2020. The Parties supply information surrounding the Covid-19 pandemic, and, pertinent to the issues in the motion, describe the Bureau of Prisons Policy, Federal Bureau of Prisons COVID-19 Action Plan: Agency-Wide Modified Operations (updated March 13, 2020). (Doc. ^[1]; Doc. 6, PgID 74). In general, the policy suspended internal inmate transfers, with some exceptions, although admission of newly-committed inmates would continue. (Doc. 6, PgID 74). Plaintiff supplies additional information from the U.S. Marshals Service, Covid-19 Detention Guidance, 3/19/20. (Doc. 1-4, PgID 54). The Parties also refer tol8 U.S.C. § 3621 (establishing general authority of Bureau of Prisons to operate prisons); 18 U.S.C.§ 4042 (addressing duties of the Bureau of Prisons); 18 U.S.C. § 4086 (authorizing U.S. marshals to provide for the safe-keeping of federal offenders).

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The Government has moved to. dismiss Plaintiffs claims, alleging both lack subject matter jurisdiction, F.R.C.P. 12(b)(1), and failure to state a claim upon which relief can be granted, F.R.C.P. 12(b)(6). Fed. R. Civ. P. 12(b)(1) and (b)(6). The Government argues that a factual challenge pursuant to F.R.C.P. 12(b)(1) mandates dismissal of Counts I and II under the discretionary function exception to the FTCA. (Doc. 6). That is, in the Government’s view, the decision to transport Ms. Circle Bear from South Dakota to Texas and the manner in which she was transported and treated upon arrival in Texas fall within the discretionary function exception because she was a new inmate whose transfer was permitted. Further, the Government argues the method of transportation and conditions of incarceration, including implementation of any safety or health measures, was a policy matter. The Government further asserts that implementation of Ms. Circle Bear’s transfer and imprisonment were done with “due care.” With respect to Count III, the Government argues the discretionary function exception extends to the aspects of Ms. Circle Bear’s incarceration at FMC Carswell and to the medical

care which she received. (Id.). With respect to F.R.C.P. 12(b)(6), the Government asserts that all Counts should be dismissed. The Government first argues South Dakota law governs Counts I and II, and that pursuant to the substantive law of the State, the Defendant - is exempt from liability for injuries stemming from Covid-19 in accordance with

S.D.C.L. § 21-68-1 through -4. The Government further argues Texas law governs Count III and that Tex. Civ. Prac. & Rem. Code Ann. § 74.155 shields it from liability in this case. Plaintiff resists the motion, arguing Texas law governs all claims, offers no defense to Counts I and II, and is improperly raised at the pleading stage with respect to Count II. Plaintiff contends that the discretionary function exception does not apply because Defendants have violated the Constitution, federal statutes, and federal policy. Plaintiff further argues that the jurisdictional question is intertwined with the merits of Plaintiff’s claims. Because of that, Plaintiff requests approval to engage in jurisdictional discovery to determine the scope of Marshals Service and Bureau of Prisons policies in the early days of the Covid-19 pandemic. LEGAL STANDARD have wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).” 534 F.3d 958, 964 (8th Cir. 2008). Johnson advised that in seeking jurisdictional discovery a

party should file an affidavit describing (1) what facts are sought and how they can be obtained; (2) how the facts would raise a genuine issue of material fact; (3) what efforts Plaintiff has made to obtain them; and (4) why the efforts were unsuccessful. Jd. at 965. As the Court ruled in Patterson v. United States, limited discovery addressing the issue of jurisdiction is permissible if it can assist the court in determining whether it has jurisdiction. 2017 WL 4381526, at *2-3 (D.S.D. 9/29/17). See also Eagle v. United States, 2023 WL 5978034, at *2 (D.S.D. © 9/14/23) (denying jurisdictional discovery); E.D.I.C. v. Dosland, 50 F.Supp.3d 1070, 1077-78 (N.D. lowa 2014) (permitting jurisdictional discovery, and providing options for how it might be conducted).

Dakota. In the Government’s view this would result in dismissal under Rule 12(b)(6) because the Government’s conduct would be shielded from liability under South Dakota’s laws shielding certain persons from liability in connection with their actions during the Covid-19 pandemic. $.D.C.L. §§ 21-68-1 through -4. Plaintiff resists dismissal, arguing Texas law applies to the transfer decision, —

which would lead to rejection of dismissal under Rule 12(b)(6) at this juncture. Plaintiff argues that employees from various jurisdictions, not only South Dakota, dealt with the request to transfer Ms. Circle Bear. The Declaration of Kevin Wykert appears to support this description. (Doc. 8, offered in support of motion

to dismiss). Plaintiff also argues that jurisdictional discovery should be permitted to enable her to determine whether informal policies or procedures exist that would enable her to resist the claim of lack of jurisdiction under Rule 12(b)(1) due to the discretionary function exception. Plaintiff seeks leave to amend Count I if the Court determines that South Dakota law should govern. The claims in Plaintiff’s lawsuit arise from a tragic situation and merit close scrutiny. It is not clear at this juncture that Plaintiff can prevail on Count I, but discovery may yield relevant information in support of her claim. Therefore, the Court reserves ruling on the motion to dismiss at this time and will permit Plaintiff to conduct jurisdictional discovery limited to the question whether any informal policy or procedure existed that applied to the decision-making authority of the employees involved in making the decision to transfer Ms. Circle Bear. The Court

reserves ruling on whether South Dakota or Texas law applies to Count I pending the results of this discovery. Should the Plaintiff choose to replead the claim, she may do so in accordance with LR 15.1. The Court finds that permitting amendment is in the . interest of justice. F.R.C.P. 15(a)(2). See Rivera v. Bank of America, 993 F.3d 1046, 1051 (8th Cir. 2021) (quoting standard); Roeman v. United States, 2021 WL 2351684, at *2 (D.S.D. 2021). A scheduling order has not been issued, so the requirements of F.R.C.P. 16 do not apply. Count I-- Plaintiff alleges negligence in the circumstances of Ms. Circle Bear’s flight from South Dakota to Texas and in the conditions of her confinement at FMC Carswell upon her arrival. As is the case with Count I, Plaintiffseeksto conduct jurisdictional discovery to determine whether any policies ot procedures were in place that governed the conditions that should exist on the flight, as well as at FMC Carswell when Ms. Circle Bear was housed there. The Government argues that dismissal is proper under Rule 12(b)(1) because the conduct of the employees on the flight and at FMC Carswell are protected by the discretionary function exception to FTCA, and therefore, the Court lacks jurisdiction over the claim. Defendants argue further that South Dakota law applies and that the employees are exempt from liability requiring dismissal under Rule 12(b)(6). For the same reasons that apply to Count I, the Court reserves ruling on the motion to dismiss and will permit Plaintiff to conduct jurisdictional discovery to determine whether such policies or procedures were in place at the time of Ms. Circle Bear’s flight and upon her arrival and incarceration at FMC Carswell. Due to the occurrence of the majority of the claimed acts and omissions in Texas, the Court will apply Texas law to Count II. As with Count I, should Plaintiff choose to replead Count II, she may do so in accordance with LR 15.1. The Court finds permitting amendment is in the interest of justice. F.R.C.P. 15(a)(2). See Rivera, 993 F.3d at 1051; Roeman, 2021 WL 2351684, at *2. Count I1I—The Parties agree, as does the Court, that Count JJI is governed by Texas law and that is the law the Court will apply. As with Counts I and II, the Government argues the discretionary function exception to FTCA applies and therefore the Court lacks jurisdiction under Rule 12(b)(1). The Government further argues that Rule 12(b)(6) dictates dismissal as well, because Plaintiff’s claim would be barred under Texas law. The Government asserts that amendments to Plaintiff’s pleading would be futile, because it is clear on the face of the complaint that dismissal is required.

Plaintiff argues that the discretionary function exception does not apply to the acts and omissions allegedly involved in Count JII. She seeks to replead her claim to allege reckless conduct and possible Constitutional violations by Defendants. As with Counts J and II, the Court finds it is in the interest of justice to permit Plaintiff to amend Count HI. F.R.C.P. 15(a)(2). See Rivera, 993 F.3d at 1051; Roeman, 2021 WL 2351684, at *2. CONCLUSION Plaintiff’s claims arising from the death of Ms. Circle Bear raise questions about the Government’s decision to transfer her from a jail in South Dakota to a prison in Texas, as well as to the circumstances of the flight, and her treatment at FMC Carswell and a local hospital once she arrived. As it stands, Plaintiffs -complaint alleges negligence and wrongful death in all facets of the transportation and treatment of the decedent with respect to her transfer to FMC Carswell. The Government has alleged that Plaintiff’s claims must be dismissed under Rule 12(6)(1) because a factual attack to the complaint demonstrates the Court lacks jurisdiction based on the provisions of the Federal Tort Claims Act. The Government also alleges dismissal is proper based on Rule 12(b)(6) because applicable statutes shield the Government from liability. Plaintiff challenges these arguments and requests both jurisdictional discovery and leave to replead.

The Court deems Plaintiff's requests for jurisdictional discovery and for the opportunity to replead appropriate in this case, and grants the requests in the interests of justice. Accordingly, IT IS ORDERED: 1. Discovery is permitted by both Parties, limited to the issue of jurisdiction; 2. The Parties shall submit to the Court for its consideration any additional memoranda and affidavits regarding the issue of jurisdiction, to be filed with the Court in accordance with the following schedule: a. Defendant’s brief: December 1, 2023; b. Plaintiff’s response: January 5, 2024.

3. Plaintiff may amend the complaint in accordance with LR 15.1; 4. Plaintiff's motion for oral argument is denied without prejudice. Dated this th day of November, 2023. BY THE COURT: Cue. uy Wid Lawrence L. Piersol United States District Judge ATTEST: MATTHEW W. THELEN, CLERK Lill ZL