In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐3113
CHARLES D. KELLER,
Plaintiff‐Appellant,
v.
UNITED STATES OF AMERICA
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. 2:09‐cv‐297—Jane E. Magnus‐Stinson, Judge.
____________________
SUBMITTED MAY 23, 2014 — DECIDED NOVEMBER 17, 2014
____________________
Before WILLIAMS, TINDER, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Plaintiff Charles D. Keller, a
federal prisoner, has sued the federal government to recover
damages for an assault by another prisoner that he suffered
After an examination of the briefs and the record, we concluded
that oral argument was unnecessary. Thus, the appeal was submitted on
the briefs and the record. See Fed. R. App. P. 34(a)(2).
2 No. 13‐3113
in the United States Penitentiary in Terre Haute, Indiana.
Keller appeals from a grant of summary judgment in the
government’s favor, so we must consider the evidence in the
light most favorable to him and draw all reasonable infer‐
ences in his favor. Parrott v. United States, 536 F.3d 629, 630–
31 (7th Cir. 2008). Accordingly, we must assume the facts are
as stated in this opinion, but without vouching for their ob‐
jective truth.
When Keller was admitted to the Terre Haute facility, he
told the intake psychologist, Dr. Joseph Bleier, that he suf‐
fered from mental illness that affected his ability to function
and feared that he would be attacked if he were placed in the
general prison population. Dr. Bleier nevertheless placed
Keller in the general population. While on his way to lunch
on October 25, 2007, Keller was attacked by another inmate
without provocation. The attack lasted several minutes
without intervention by guards. Keller was beaten brutally
and left lying unconscious in the prison yard. The attack oc‐
curred at the base of prison watchtower 7, which stands at
the boundary between Units 1 and 2 of the prison yard. No
prison guard saw the attack. Keller was eventually spotted
lying face‐down and unconscious on the ground. Examina‐
tions by the prison medical staff and a nearby hospital
emergency room revealed extensive injuries to his face and
head.
Keller filed suit against the United States under the Fed‐
eral Tort Claims Act, see 28 U.S.C. § 2674, alleging that the
attack resulted from the prison’s negligence. He argues that
several prison employees violated mandatory regulations
and orders governing their conduct, thus allowing the attack
to occur and continue. According to Keller, Dr. Bleier did not
No. 13‐3113 3
examine all of his available medical documents before decid‐
ing to release him into the general prison population, as re‐
quired by applicable regulations. Keller also contends that
the prison guards assigned to Tower 7, Unit 1, and Unit 2
failed to monitor their assigned areas of the yard because
they were lazy or inattentive in violation of their post orders.
The district court granted the government’s motion for
summary judgment based on the discretionary function ex‐
ception to liability under the Act. See 28 U.S.C. § 2680(a).
This appeal followed.
The Federal Tort Claims Act (FTCA) gives district courts
exclusive jurisdiction over claims “for injury or loss of prop‐
erty, or personal injury or death caused by the negligent or
wrongful act or omission of any employee of the govern‐
ment while acting within the scope of his office or employ‐
ment, under circumstances where the United States, if a pri‐
vate person, would be liable to the claimant in accordance
with the law of the place where the act or omission oc‐
curred.” 28 U.S.C. § 1346(b)(1); see also 28 U.S.C. § 2674.
Prisoners can sue under the FTCA “to recover damages from
the United States Government for personal injuries sustained
during confinement in a federal prison, by reason of the neg‐
ligence of a government employee.” United States v. Muniz,
374 U.S. 150, 150 (1963); see also, e.g., Coulhurst v. United
States, 214 F.3d 106 (2d Cir. 2000) (allowing prisoner to pur‐
sue FTCA claim); Bultema v. United States, 359 F.3d 379 (6th
Cir. 2004) (same); Gil v. Reed, 381 F.3d 649, 659 (7th Cir. 2004)
(same); Mackovich v. United States, 630 F.3d 1134 (8th Cir.
2011) (same).
This waiver of the United States’ sovereign immunity is
limited by several exceptions, including the discretionary
4 No. 13‐3113
function exception codified in 28 U.S.C. § 2680(a). The excep‐
tion is in the second half of a provision that states in full:
“The provisions of this chapter and section 1346(b) of this
title shall not apply to—(a) Any claim based upon an act or
omission of an employee of the Government, exercising due
care, in the execution of a statute or regulation, whether or
not such statute or regulation be valid, or based upon the ex‐
ercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of a federal agen‐
cy or an employee of the Government, whether or not the
discretion involved be abused.”
Case law elaborates the scope of this discretionary func‐
tion exception. Two requirements must be met. First, the act
involved must be discretionary in the sense that it “involves
an element of judgment or choice.” Palay v. United States, 349
F.3d 418, 427 (7th Cir. 2003), quoting United States v. Gaubert,
499 U.S. 315, 322 (1991) (internal formatting omitted). This
means that where an employee deviates from a course of ac‐
tion prescribed by federal statute, regulation or policy, the
employee’s acts are not immune from suit. Gaubert, 499 U.S.
at 322; Berkovitz v. United States, 486 U.S. 531, 536 (1988); Pa‐
lay, 349 F.3d at 427. Second, “the exception protects only
governmental actions and decisions based on considerations
of public policy.” Gaubert, 499 U.S. at 322; Palay, 349 F.3d at
427–28; Calderon v. United States, 123 F.3d 947, 949 (7th Cir.
1997).
The discretionary function exception is an affirmative de‐
fense to liability under the FTCA that the government must
plead and prove. Parrott v. United States, 536 F.3d 629, 634–35
(7th Cir. 2008); Reynolds v. United States, 549 F.3d 1108, 1112
(7th Cir. 2008); Stewart v. United States, 199 F.2d 517, 520 (7th
No. 13‐3113 5
Cir. 1952); S.R.P. ex rel. Abunabba v. United States, 676 F.3d 329,
333 n.2 (3d Cir. 2012) (collecting cases from other circuits). To
support summary judgment under the exception, the gov‐
ernment must offer evidence that shows beyond reasonable
dispute that its conduct was shielded by the exception. The
district court, however, placed the burden on Keller to prove
that the exception did not apply. This was a legal error that
requires reversal unless the error was harmless.
The government argued in its summary judgment briefs
that the discretionary function exception always shields the
government from liability for inmate violence, citing our de‐
cision in Calderon v. United States, 123 F.3d 947 (7th Cir. 1997).
That argument substantially overstates our holding in Calde‐
ron and overlooks other cases on point. See, e.g., Parrott, 536
F.3d at 638 (reversing summary judgment based on discre‐
tionary function exception where prisoner alleged guards
failed to comply with order separating him from another
prisoner); Palay, 349 F.3d at 432 (reversing dismissal on
pleadings based on discretionary function exception where
prisoner alleged guards’ negligence allowed other prisoners
to beat him). “Unstated but implicit in Calderon is the as‐
sumption that prison officials in that case had taken note of
the threats against the plaintiff in that case and weighed the
relevant considerations in deciding how best to act (or not)
in response to those threats.” Palay, 349 F.3d at 432.
By contrast, if prison officials behaved negligently with‐
out making a discretionary judgment of the type shielded by
the exception, the discretionary function exception would
not apply to their conduct. Id. Prison guards who “left the
unit unattended in order to enjoy a cigarette or a snack,” for
example, would not be covered by the exception, because
6 No. 13‐3113
they would not have made the kind of discretionary judg‐
ment that the exception is designed to protect. Id. In other
words, if prison personnel violate a mandatory regulation,
the exception does not apply because “there is no room for
choice and the action will be contrary to policy.” Gaubert, 499
U.S. at 324; see also Parrott, 536 F.3d at 638.
Here, Keller has alleged that both the intake psychologist
and the prison guards assigned to monitor the relevant sec‐
tions of the yard violated mandatory regulations that gov‐
erned their conduct. Unlike the guards in Calderon, Keller
argues, the guards and intake psychologist in this case did
not exercise discretion allowed to them under applicable
regulations, but rather failed to comply with mandatory
regulations and orders. If that is the case, then their alleged
negligence would not fall within the scope of the discretion‐
ary function exception. See Gaubert, 499 U.S. at 324; Parrott,
536 F.3d at 638; Palay, 349 F.3d at 432.
At this stage, the record in this case presents a situation
similar to Parrott v. United States, 536 F.3d 629 (7th Cir. 2008).
Parrott, also a federal prisoner at the Terre Haute facility, al‐
leged that prison guards violated a mandatory separation
order so that another inmate was able to attack him. We re‐
versed summary judgment for the government because the
discretionary function exception would not protect the gov‐
ernment from liability under those circumstances. Parrott,
536 F.3d at 638. We see no reason to take a different ap‐
proach in this case. We reject the government’s argument
that all prisoner attacks fall within the discretionary function
exception.
We therefore turn to the record to determine whether the
discretionary function exception applied in this case. We
No. 13‐3113 7
cannot conclude, based on the evidence in the record, that
the exception necessarily shields the government from liabil‐
ity for the attack on Keller. Keller contends that both the in‐
take psychologist who screened him upon arrival at the
Terre Haute facility and the prison guards assigned to Units
1 and 2 violated mandatory orders before the attack. Accord‐
ing to Keller, the intake psychologist did not examine all of
his available medical documents, as required by applicable
regulations, before deciding to release him into the general
prison population. Keller also argues that the prison guards
assigned to Unit 1 and Unit 2 failed to monitor their as‐
signed areas of the yard because they were lazy or inatten‐
tive, violating their post orders.1
The scant record available to both the district court and
this panel makes it difficult to determine what procedures
and regulations applied to the intake psychologist and pris‐
on guards at the Terre Haute facility. The government object‐
ed to nearly all of Keller’s discovery requests on the ground
that releasing the information requested to a prisoner would
create safety concerns. A magistrate judge reviewed the dis‐
puted documents in camera, concluded that many were not
relevant to Keller’s case, and allowed the government to re‐
lease the rest in heavily redacted form. The district court did
not have the unredacted documents before it when it ruled
on the government’s summary judgment motion, which was
based on the court’s determination that the documents con‐
1 Keller concedes that there is a blind spot at the base of Tower 7, so
the guards stationed in Tower 7 cannot see the area where Keller was
attacked. Accordingly, Keller cannot base his claim upon alleged negli‐
gence by the Tower 7 guards.
8 No. 13‐3113
tained no mandatory procedures or directives violated by
the prison guards stationed at Units 1 and 2.
These extensive redactions make it impossible for this
court to ascertain exactly what regulations and procedures
governed the conduct of the intake psychologist and the
prison guards. The information we do have, however, sug‐
gests that both the intake psychologist and the prison guards
were subject to specific regulations and orders governing
their conduct. For example, we know from the record that
Program Statement 5324.07 requires psychology services to
“develop local procedures to clear inmates with a PSY
ALERT assignment,” which suggests that the Terre Haute
facility had mandatory local procedures that needed to be
followed when clearing inmates. Dr. Bleier’s affidavit simi‐
larly refers to procedures used to clear inmates like Keller
who had a “PSY ALERT.” Those procedures are not in the
record, and in their absence, we cannot conclude as a matter
of law that they did not constrain Dr. Bleier’s discretion to
place Keller in the general population.2
The government has also failed to establish that the ac‐
tions of the prison guards assigned to Units 1 and 2 are pro‐
tected by the discretionary function exception. The govern‐
ment relies on the declaration of a prison administrator that
2 Both Dr. Bleier and the chief psychologist at the Terre Haute facili‐
ty stated in their affidavits that no mandatory procedures were violated
in Keller’s screening. Neither affidavit, however, discusses what those
procedures were or whether they constrained Dr. Bleier’s discretion. On
the other hand, the affidavits suggest that mandatory procedures gov‐
erned intake screening at the Terre Haute facility, reinforcing our conclu‐
sion that remand is necessary to determine the nature of those proce‐
dures and whether Dr. Bleier complied with or violated them.
No. 13‐3113 9
guards assigned to different areas of the compound are in‐
terchangeable and that guards do not need to be in any par‐
ticular area at any given time. However, the heavily redacted
documents in the record suggest that prison guards are as‐
signed to specific areas of the yard and are required to moni‐
tor their areas and to respond to emergency situations with‐
in them. In other words, guards cannot choose, at least with‐
out a good reason, to stop monitoring their assigned areas
without violating their explicit responsibilities under the
post orders. Keller alleges that the guards stopped monitor‐
ing their assigned areas as required by the post orders be‐
cause they were lazy and inattentive. There is no evidence to
the contrary in the record. Based on the summary judgment
record, then, we cannot conclude as a matter of law that the
guards’ behavior is shielded by the discretionary function
exception.
If as the government suggests in its brief the guards
made a “policy” choice that caused them to neglect an area
of the yard because they were pursuing other policy objec‐
tives within their discretion (such as walking the perimeter
or supervising trash collection), then perhaps that would be
shielded by the discretionary function exception. But there is
no evidence to that effect in the record, and the government’s
say‐so in its briefs is not enough to support summary judg‐
ment. The government points to no evidence in the record to
contradict Keller’s claims that the guards were simply lazy
or inattentive. “That type of carelessness would not be cov‐
ered by the discretionary function exception, as it involves
no element of choice or judgment grounded in public policy
considerations.” Palay, 349 F.3d at 432.
10 No. 13‐3113
Accordingly, we conclude that the government did not
sustain its burden to prove as a matter of law that the discre‐
tionary function exception shielded it from liability for the
brutal attack that seriously injured Keller. Summary judg‐
ment was improperly granted for the government on that
basis, and the district court’s error was not harmless.
We do not reach Keller’s claims that the district court
abused its discretion in denying his motion to compel dis‐
covery or his motion for appointment of counsel. Keller is
free to pursue further discovery on remand, and can of
course renew his motion for appointment of counsel as well.
We note in closing, however, that the district court may wish
to revisit its determination on both matters in light of this
opinion. See Parrott, 536 U.S. at 638–39 (finding that district
court had abused its discretion in handling injured prison‐
er’s discovery requests). The district court’s resolution of the
discovery disputes in this case resulted in a record so limited
that it could not support summary judgment for the gov‐
ernment. A better‐developed record would have allowed the
district court and this court to assess better the merits of the
government’s motion for summary judgment.
We REVERSE the district court’s grant of summary
judgment and REMAND the case for further proceedings
consistent with this opinion.