United States District Court, D. New Hampshire
Joseph S. Hajdusek, Plaintiff
United States of America, Defendant Opinion No. 2017 DNH 198
McAuliffe, United States District Judge
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.
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).
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.
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
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).
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.
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.”
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.
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.”).
noted above, Hajdusek's sole claim against the United
States is brought ...