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Hajdusek v. United States

United States District Court, D. New Hampshire

September 21, 2017

Joseph S. Hajdusek, Plaintiff
v.
United States of America, Defendant Opinion No. 2017 DNH 198

          ORDER

          Stven McAuliffe, United States District Judge

         Joseph Hajdusek brings this action against the United States of America seeking damages under the Federal Tort Claims Act. Hajdusek was injured while taking part in an exercise and physical training regimen, as part of the United States Marine Corps Delayed Entry Program (“DEP”). Hajdusek says his injuries were proximately caused by a Marine Corps Staff Sergeant who “excessively exercised [him] under dangerous conditions with high intensity and long periods of time without breaks for adequate hydration” and “carelessly, recklessly and negligently failed to supervise [his] physical condition during the excessive and unwarranted hours of strenuous physical exercise.” Complaint (document no. 1) at paras. 12 and 13.

         Pending before the court is the United States' motion to dismiss, in which it asserts that this court lacks subject matter jurisdiction over Hajdusek's claim because it arises out of the Staff Sergeant's performance of a discretionary function. See 28 U.S.C. § 2680(a).

         Standard of Review

         When faced with a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the plaintiff, as the party invoking the court's jurisdiction, bears the burden to establish by competent proof that such jurisdiction exists. See, e.g., Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995). In determining whether that burden has been met, the court must “take as true all well-pleaded facts in the plaintiffs' complaint[], scrutinize them in the light most hospitable to the plaintiffs' theory of liability, and draw all reasonable inferences therefrom in the plaintiffs favor.” Fothergill v. United States, 566 F.3d 248, 251 (1st Cir. 2009). The court may also consider evidence the parties have submitted, such as depositions, exhibits, and affidavits, without converting the motion to dismiss into one for summary judgment. See, e.g., Carroll v. United States, 661 F.3d 87, 94 (1st Cir. 2011). Both parties have attached exhibits to their memoranda, which the court has considered.

         Background

         In August of 2010, Hajdusek enrolled in the Marine Corps Delayed Entry Program (“DEP”). He says he entered the DEP rather than reporting directly to basic training because he “was overweight and not in shape to pass basic training at that time.” Declaration of Joseph Hajdusek (document no. 14-1) at para. 9. By way of background, the Marine Corps DEP has been helpfully described as follows:

The United States Marine Corps' delayed-entry program allows individuals to enlist in the Marine Corps Reserve for up to a year before enlisting in the regular Marine Corps. Individuals participating in the program, referred to as “poolees, ” are enlisted into the Marine Corps Reserve. When poolees finish the program, they are sent to recruit training (a.k.a “boot camp”), at which time they are discharged from the reserve component and enlisted onto active duty in the regular Marine Corps. The delayed-entry program helps the poolees prepare physically and mentally for the initial strength test and recruit training itself. The program also helps reduce the rate of attrition at recruit training, and assists in the training of the Marines.

Snow v. United States, No. 4:10-CV-319, 2012 WL 1150770, at *1 (E.D. Tex. Mar. 13, 2012) (citations omitted), report and recommendation adopted, 2012 WL 1150765 (E.D. Tex. Apr. 5, 2012).

         By January of 2011, Hajdusek says he had reached his target weight and had almost reached his strength goals, so he was instructed to report for basic training at Parris Island on or around February 7, 2011. Hajdusek Declaration at para. 13. But, because he developed a kidney stone, his entry was again delayed and he had to temporarily stop meeting with his fitness instructors. Later in February, however, Hajdusek resumed his training regimen. At that point, he says he had maintained his target weight and needed only to pass a pull-up test before he could proceed to basic training. Id. at para. 15. On March 1, 2011, Hajdusek reported for training exercises with the Marine recruiters. According to the complaint:

Staff Sergeant Mikelo was working with [Hajdusek] that day for his training. Hajdusek and Staff Sgt. Mikelo had not met until March 1, 2011.
During the training session on March 1, 2011, Staff Sgt. Mikelo excessively exercised [Hajdusek] under dangerous conditions with high intensity and long periods of time without breaks for adequate hydration.
Staff Sgt. Mikelo of the United States Marines carelessly, recklessly and negligently failed to supervise [Hajdusek's] physical condition during the excessive and unwarranted hours of strenuous physical exercise.

         Complaint at paras. 11-13. Hajdusek claims that although he passed the pull-up test, Sergeant Mikelo ordered him to continue exercising for an extended period of time (he believes Mikelo was punishing him for having missed an earlier poolee function due to a family commitment). He says that during the two-hour training session, he was only given two brief breaks to run down the hall to get some water. Id. at para. 20. And, says Hajdusek, toward the end of the session, he was “clearly showing signs of exhaustion and over-exertion injuries” and says he collapsed on the floor several times while performing air squats. Id. at 22. But, he did not complain or stop exercising “because [he] did not want to anger S.Sgt. Mikelo further.” Id.

         Four days later, Hajdusek says he couldn't see because his vision was blurry, he had difficulty moving, and he was nauseated. Id. at para. 29. He was taken to the hospital by ambulance, where he was diagnosed with “rhabdomyolysis, left lumbar radiculitis, L4-5 bilateral facet spondylosis, muscle imbalances with biomechanical deficits, gait abnormality, kidney failure, and significant pain.” Id. In August of 2011, he began receiving Social Security disability benefits and says he has lost the ability to work a normal schedule and lives in constant pain. Id. at para. 31. He asserts that his injuries were proximately caused by Staff Sergeant Mikelo's careless, reckless, and negligent actions in conducting (and supervising) Hajdusek's training regimen.

         Parenthetically, the court notes that when Hajdusek was injured, he was a member of the United States Marines Ready Reserve. Accordingly, the parties seem (implicitly) to agree that his claim is not barred by the Feres doctrine. See Feres v. United States, 340 U.S. 135 (1950) (barring members of the military from suing the United States for injuries arising during service in the military). See also Command Order 7000.3 (document no. 15-1) at para. 4(b)(8) (“Since poolees are not eligible for DoD type benefits and they do not fall under the Feres Doctrine, they may file claims or suits against a Marine, the Recruiting Command or the Marine Corps for negligence.”); Hajdusek's Enlistment Papers (document no. 18-2) at 2 (“I understand that I am in a nonpay status and that I am not entitled to any benefits or privileges as a member of the Ready Reserve.”).

         As noted above, Hajdusek's sole claim against the United States is brought ...


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