NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 21, 2018*
Decided July 18, 2018
Before
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 17‐1904
CHRISTOPHER H. MCCOY, Appeal from the United States District
Plaintiff‐Appellant, Court for the Central District of Illinois.
v. No. 14‐CV‐1374
UNITED STATES OF AMERICA, Michael M. Mihm,
Defendant‐Appellee. Judge.
O R D E R
A prisoner attacked Christopher McCoy, a federal inmate, after officials at the
Bureau of Prisons released him from protective custody. He sued the United States
under the Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1), contending that prison
officials negligently responded to a threat to his safety. The judge granted the
government’s motion for summary judgment, concluding that the manner by which
prison officials responded to the threat fell within the “discretionary function”
exception to the government’s waiver of immunity in the Act. We affirm because prison
* We agreed to decide this case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 17‐1904 Page 2
officials have discretion in deciding how best to protect prisoners, and no rule
constrained that discretion in this case.
We consider the evidence in the light most favorable to McCoy and draw all
reasonable inferences in his favor. See Parrott v. United States, 536 F.3d 629, 630–31
(7th Cir. 2008). McCoy is imprisoned for child pornography and sex offenses. When he
arrived at the Federal Correctional Institution in Pekin, Illinois, in 2012, he was placed
in the general housing population. Months later McCoy learned that his crimes had
become known and that he faced a danger of attack because of them. A prison gang
member warned McCoy that the gang had the paperwork describing his offenses and
gave him two options: enter the prison’s segregated housing unit or “face the
consequences.”
In response to this perceived threat, McCoy asked a lieutenant to place him in the
segregated housing unit for protective custody. During an interview with that
lieutenant, McCoy reported the gang member’s threat and that someone had slipped
papers detailing his child sex offenses under his cell door. The lieutenant placed McCoy
in protective custody pending the outcome of a complete investigation into the threat.
The Bureau of Prisons requires that when prison staff place an inmate in protective
custody, “an investigation will occur to verify the reasons for [the inmate’s] placement.”
28 C.F.R. § 541.28(a). The lieutenant’s report of his interview with McCoy correctly
reflects McCoy’s concern that his offense papers had been slipped into his cell. But it
incorrectly states that McCoy told the lieutenant that no one had “actually threatened”
him.
Two months later while McCoy remained in protective custody, another
interview and report followed. The interviewing officer wrote that McCoy said he felt
unsafe because his sex‐offense papers were slipped under his door and that he had not
been verbally threatened. McCoy does not remember telling the officer that he had not
been verbally threatened, but he also does not deny that he told the officer that. A day
later an officer assigned to verify McCoy’s need for protection recommended that
McCoy be returned to the general population. The officer reviewed the two interview
reports and decided that “insufficient evidence … support[ed] [McCoy’s] claims of
protective custody” because he had not been threatened “directly.” He recommended
that McCoy be returned to the general population, and McCoy was.
Months later an inmate attacked McCoy after he refused the inmate’s offer to
“buy back” a “death warrant” placed on his head by inmates who knew of his child sex
offenses. The prison treated McCoy’s injuries, returned him to protective custody, and
No. 17‐1904 Page 3
investigated his need for protection. The investigator found the attacker had a
document detailing McCoy’s sex offenses and that a copy of this paper was posted in a
common area. After interviews with McCoy and other inmates, the investigator
concluded that McCoy’s safety was in jeopardy. The officer recommended that the
Bureau transfer McCoy to another institution, and it did.
This suit under the Federal Torts Claims Act followed. In the district court, the
government invoked the “discretionary function” exception to the Act. This exception
shields the government from liability for “an act or omission of an employee of the
[g]overnment … based upon the exercise or performance or the failure to exercise or
perform a discretionary function or duty on the part of a federal agency or an employee
of the [g]overnment, whether or not the discretion involved be abused.” 28 U.S.C.
§ 2680(a). The exception is an affirmative defense, and to prevail on it, the government
must establish two elements “beyond reasonable dispute.” Keller v. United States,
771 F.3d 1021, 1023 (7th Cir. 2014); Palay v. United States, 349 F.3d 418, 427 (7th Cir.
2003). First, the act at issue must be discretionary rather than mandatory, involving
judgment or choice. Keller, 771 F.3d at 1023. Second, the act must be based on
considerations of public policy. Id. Only the first element is contested here.
The judge granted the government’s motion for summary judgment. The
government argued that housing and security decisions generally fall under the
discretionary‐function exception. It cited 18 U.S.C. § 4042(a)(3) (defining the Bureau’s
duty to protect inmates) and Calderon v. United States, 123 F.3d 947, 950 (7th Cir. 1997)
(deciding that § 4042 does not set forth “particular conduct the [Bureau’s] personnel
should engage in or avoid while attempting to fulfill their duty to protect inmates”).
McCoy responded that officers violated a duty to investigate the risk that he faced after
the papers detailing his child sex offenses ended up, in his view, “in the hands of other
inmates.” The judge granted the motion and ended the suit for “lack of jurisdiction.”
The jurisdictional label was a misnomer. Because the exception is a defense to liability,
not a jurisdictional bar, Parrott, 536 F.3d at 634, dismissal was on the merits.
On appeal McCoy challenges the entry of summary judgment, arguing that the
discretionary‐function exception does not apply. He is mistaken. McCoy first contends
that the investigating officers violated § 4042(a)(3), which requires that the Bureau
“shall” provide for inmate “protection.” We have held, however, that the manner in
which the government’s employees carry out their duty under § 4042 is committed to
their discretion. Calderon, 123 F.3d at 950. Federal corrections officers exercised that
discretion here. They conducted two separate interviews of McCoy, asking him to
No. 17‐1904 Page 4
explain his concerns for his safety. He does not deny the second interviewer’s account
that he (McCoy) stated that no one had verbally threatened him. A third officer
reviewed the two interview reports and, again exercising discretion, viewed them as
containing “insufficient” evidence of a direct threat and inconclusive about the
significance of the appearance of the offense papers under McCoy’s cell door. These
officers did not violate their duty under § 4042.
McCoy asserts that the officers were required to do more to find out who obtained
his offense papers and put them in his cell, but he cites no authority that supports his
assertion. He points to two federal statutes pertaining to management and treatment of
sex offenders, 18 U.S.C. §§ 3621(f)(1)(A), 4081, but neither of these statutes restricts the
discretion that § 4042 grants to prison officials who must protect sex offenders. McCoy
also relies on the officials’ duty under 28 C.F.R. § 541.28(a) to investigate whether an
inmate should remain in protective custody. But this regulation does not mandate a
particular method for investigating risks; it simply requires that “an investigation will
occur,” and one did. As we have observed, the investigation consisted of two separate
interviews of McCoy and an evaluation of the two interview reports.
Finally, McCoy argues that he is entitled to a remand under Keller, where we
vacated summary judgment for the United States because the record was insufficiently
developed. 771 F.3d at 1026. But Keller is distinguishable. There the government’s
discovery objections resulted in a “scant record” that made it impossible for us to
ascertain what regulations at the prison governed the employees who, the plaintiff
believed, carelessly allowed him to be beaten. Id. at 1024–25. By contrast McCoy does
not argue that any relevant prison rules are missing from the record. During discovery
he sought policies covering “administrative transfers,” and the government responded
that the Bureau’s “program statements” are in the prison’s library. When McCoy
replied that “some” policies were not there, the judge ordered the government to
supplement its disclosures. McCoy never argued in the district court (in opposing
summary judgment) or now on appeal that this ruling ordering the government to
supplement discovery was inadequate.
The judgment of the district court is modified to reflect dismissal on the merits.
As modified, the judgment is
AFFIRMED.