Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction

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Case 3:07-cv-01436-RNC Document 51-2 Filed 02/01/2008 Page 26 of 32Government while acting within the scope of his office or employment." 28 U.S.C. § 1346(b)(1).The FTCA defines "employee" as follows:Employee of the government" includes officers or employees ofany federal agency, members of the military or naval forces of theUnited States, members of the National Guard while engaged intraining ..., and persons acting on behalf of a federal agency in anofficial capacity, temporarily or permanently in the service of theUnited States, whether with or without compensation.28 U.S.C. § 2671. Because Plaintiffs have the burden of establishing subject matterjurisdiction, see United Food Local 919 v. Centermark Properties, 30 F.3d 298, 301 (2d Cir.1994), they have to prove that the alleged state facility tortfeasors were Government employeesunder the FTCA, see McFeely v. United States, 700 F. Supp. 414, 419 (S.D. Ind. 1988).B. The United States is not Liable for the Actions of Independent ContractorsIn the amended complaint, the Plaintiffs claim that state prison officials subjected them tounconstitutional treatment at two Massachusetts state facilities, Plymouth County and SuffolkCounty Correctional Facilities. Compl., 117. These allegations include: 1) denying plaintiffs"access to a telephone for periods ranging from several days to several weeks;" 2) questioning byan "unknown law enforcement agent" regarding a murder which occurred in Danbury; 3)subjecting plaintiffs to a medical examination and a "full-body search;" 4) forcing PlaintiffsBarrera, Llibisupa, Maldonado, Redrovan, and Simbana to give blood samples; 5) forcingPlaintiffs Barrera, Maldonado, Redrovan, and Simbana to give urine samples; and 6) placingPlaintiff Barrera in isolation. Compl., 117, 125-29. To the extent that any of these claims areasserted against the United States, the United States moves to dismiss these claims based on the26
Case 3:07-cv-01436-RNC Document 51-2 Filed 02/01/2008 Page 27 of 32independent contractor exception to the FTCA. If there are no claims against the federaldefendants arising out of these claims, the federal defendants move to strike these facts asirrelevant to the claims made against these defendants. Allowing claims of alleged mistreatmentby individuals who are not named as a party to the litigation would be unduly prejudicial andhave no bearing on the litigation against these defendants. See 2A Moore's Federal Practice P12.21, at 2429 ("Motions to strike allegations from a complaint are strongly disfavored and willbe granted only where it is clear that (the allegations) can have no possible bearing upon thesubject matter of the litigation."); accord, Federated Dep't Stores, Inc. v. Grinnell Corp. [1968TRADE CASES P 72,444], 287 F. Supp. 744, 747 (S. D. N. Y. 1968) (Cooper, J.).1. Applicable Law Regarding Independent ContractorsThe FTCA specifically excludes "any contractor with the United States" from thecategory of entities for whose negligence the Government may be held liable. Id. "TheGovernment cannot be held liable for the negligence of independent contractors." Fraser v.United States, 490 F. Supp. 2d 302, 309 (E.D.N.Y. 2007). Thus, subject matter jurisdiction overthe claims regarding plaintiffs' treatment at the state facilities depends on whether the statefacilities are considered agencies of the United States or independent contractors.2. Independent Contractor v. Government AgencyWhether an entity/person is a government agency/employee or an independent contractoris a question of federal law. Leone v. United States, 910 F.2d 46, 49 (2d Cir. 1990). The"distinction between the servant or agent relationship and that of independent contractor turn[s]on the absence of authority in the principal to control the physical conduct of the contractor inperformance of the contract." Logue v. United States, 412 U.S. 521, 527 (1973). A contractor is27
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Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction

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