Ben Gary Triestman v. Federal Bureau of Prisons, United States of America

PER CURIAM:

Appellant Ben Gary Triestman appeals from a March 10, 2004 order of the United States District Court for the Northern District of New York (Mordue, J.) partially dismissing — pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure — Triestman’s complaint brought under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b)(1) and 2671 et seq., against the Federal Bureau of Prisons (“BOP”) and the United States of America.[1] We conclude that Triest-man’s submissions, construed “liberally” and “interpret[ed] [so as] to raise the strongest arguments that they suggest,” Pabon v. Wright, 459 F.3d 241, 248 (2d Cir.2006) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994)), should be read to allege a theory of liability under the FTCA that the district court did not consider below. Because the district court has jurisdiction to consider this theory of liability, dismissal pursuant to Rule 12(b)(1) was inappropriate and, accordingly, we vacate and remand to the district court for further proceedings. In addition, we recommend that the district court appoint counsel to assist Triestman in further pursuing his claims.

BACKGROUND I. Statement of facts At all relevant times, the BOP had in place a program statement which provided that “[signaling devices will be available for inmate use in all locked housing units that do not have continuous staff coverage,” and that “[i]nmates will not be left unattended in locked areas unless a signaling device is available to them for emergencies.” BOP Program Statement No. 1600.06(3-4) (Feb. 25, 1992). The language of this program statement makes clear that prison officials must provide “continuous staff coverage” to, and may not leave “unattended,” any inmate in a locked housing unit who does not have access to an emergency “signaling device.” The precise terms “continuous staff coverage” and “unattended” are not defined in the program statement.