IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 19, 2007
No. 05-41482 Charles R. Fulbruge III
Clerk
EDWARD DWAYNE ASHFORD
Plaintiff - Appellant
v.
UNITED STATES OF AMERICA; RONALD THOMPSON, Regional Director;
JONOTHAN DOBRE, Warden, R WHITE, Correctional Counselor
Defendants - Appellees
Appeal from the United States District Court
for the Eastern District of Texas
Before REAVLEY, SMITH, and GARZA, Circuit Judges.
REAVLEY, Circuit Judge:
Edward Ashford sued several defendants on a variety of causes of
action after he was violently assaulted in prison. Each defendant was
granted summary judgment. Ashford contends here that the district court
erred only in granting the United States summary judgment on his
negligence claim under the Federal Tort Claims Act (“FTCA”). The district
court ruled that the FTCA’s discretionary-function exception shielded the
United States from suit. Because there are issues of material fact as to
whether that exception applies, we reverse the grant of summary judgment
and remand the case to the district court.
I. Background
No. 05-41482
Ashford committed a disciplinary infraction while at a medium-security
prison and learned that he would soon be transferred to a high-security
prison. He was concerned that the move would place him in confinement
with prisoners from Washington, D.C. While he had previously been involved
in several incidents with prisoners when he was imprisoned in D.C., he was
particularly concerned about an inmate named Kelvin Smith, who had
attacked him when they had been locked up together. According to Ashford,
after Smith assaulted him, corrections officials in Washington issued two
separation orders, which forbid the two from being housed in the same prison
population.
Ashford explained his concerns to the prison warden of the medium-
security prison. The warden advised him to contact several different prison
officials. Ashford wrote those officials and outlined his concerns, explaining
that Smith and other gang members had previously attacked him. He
emphasized that he should not be housed with prisoners from D.C. Ashford
claims that the warden assured him that his safety concerns would be
investigated before his transfer.
Ashford was eventually transferred to the high-security prison, but
prison officials had failed to investigate his concerns. When Ashford arrived
at the prison, he was interviewed by Lieutenant Russell Haas. According to
Ashford, he asked Haas if Smith was housed there and explained to Haas his
history with Smith. Ashford claims that Haas assured him that Smith was
not being housed there. It is uncontested that Smith was in fact being housed
at the prison. Haas, however, disputes that Ashford ever mentioned Smith
during the intake interview.
Whether Ashford did in fact voice concerns about Smith to Haas is
important to this litigation. Prison official Patricia Doty testified that if
Ashford had mentioned Smith as a “security threat” during his intake
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No. 05-41482
interview, Ashford “would have been placed in some sort of administrative
segregation until that could be investigated.” But Doty also testified that
prison officials at the intake interview have discretion in determining where
to put a prisoner in confinement. Nevertheless, Haas himself confirmed that
if Ashford indicated that there was a security risk with another inmate, the
“only procedure” that he would have followed would have been to place
Ashford in special housing and a further investigation would have been
conducted. But that procedure was not followed and Ashford was placed in
the general population.
Two days after Ashford arrived at the new prison, an inmate
approached Ashford and purportedly said: “I ain’t got no beef with you
personally, right; but [Smith] sent us.” Ashford was then viciously attacked
and stabbed approximately 13 times. He sustained wounds to his back, head,
inner left ear canal, and upper torso. His left lung was punctured. The
attack has left Ashford with both hearing and vision problems.
Ashford filed suit against several of the prison officials and the United
States, alleging violations of his civil rights and the FTCA. His FTCA claim
accused the United States of negligence for putting him into the general
prison population with prisoners from D.C., including Smith. The parties
consented to have a magistrate judge hear and decide the FTCA claim, and a
Flowers evidentiary hearing was held.1 A Flowers hearing “amounts to a
bench trial replete with credibility determinations and findings of fact.”2
After the Flowers hearing in which numerous witnesses testified, the
magistrate judge decided no issues of credibility and instead granted the
1
See Flowers v. Phelps, 956 F.2d 488 (5th Cir.), modified in part on other grounds, 964
F.2d 400 (5th Cir. 1992).
2
McAfee v. Martin, 63 F.3d 436, 437 (5th Cir. 1995).
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No. 05-41482
United States summary judgment on the discretionary-function exception to
the FTCA.
We review grants of summary judgment de novo, applying the same
standards as the lower court.3 The Government was properly granted
summary judgment on the discretionary-function exception only if there are
no material facts in dispute and the exception applied as a matter of law.4
II. Analysis
Our issue is whether the discretionary-exception applied as a matter of
law. We begin with the basics. Generally, sovereign immunity bars suits
against the Government; this notion “derives from the British legal fiction
that ‘the King can do no wrong,’ and therefore can never appear as a
defendant in ‘his’ own courts.”5 Under the FTCA, however, the Government
has waived sovereign immunity for personal injury claims caused by “the
negligent or wrongful act or omission of any employee of the Government
while acting within the scope of his [or her] office or employment, under
circumstances where the United States, if a private person, would be liable to
the claimant in accordance with the law of the place where the act or
omission occurred.”6 While the FTCA takes two steps forward in allowing
individuals to receive compensation for the negligent conduct of the
Government, it takes one step back with the numerous statutory exceptions
that limit the circumstances under which individuals may bring suit.7
3
Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir. 2007).
4
See FED. R. CIV. PROC. 56(c).
5
Santana-Rosa v. United States, 335 F.3d 39, 41–42 (1st Cir. 2003) (internal citation
omitted).
6
28 U.S.C. § 1346(b)(1).
7
Id. § 2680 (listing the numerous statutory exceptions to the FTCA).
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No. 05-41482
Perhaps the exception that is the most frequent retreat is the discretionary-
function exception, which affords the United States protection against any
FTCA claim “based upon the exercise or performance or failure to exercise or
perform a discretionary function or duty on the part of a federal agency or an
employee of the Government.”8 The Supreme Court has added some flesh to
that bare-boned statutory skeleton, setting up a two-part test to determine
whether the discretionary-function exception has been triggered.9 First, for
the exception to apply, the challenged act must involve an element of
judgment.10 In other words, the Government needs to establish there was
“room for choice” in making the allegedly negligent decision.11 If a “federal
statute, regulation or policy” specifically prescribes a course of action for the
federal employee to follow, the employee has no choice but to adhere to the
directive.12 If the Government can establish that the challenged act involved
an element of judgment, step two of the test is met and the discretionary-
function exception will apply only if that judgment is of the kind that the
exception was designed to shield.13
Here, the Government cannot show that step one of the test has been
met as a matter of law. Two Government witnesses, Doty and Hass, testified
that if an inmate raised a safety concern like the one Ashford claims he raised
at the intake interview, prison policy required him to be put into solitary
confinement until an investigation could be conducted. That policy
8
Id. § 2680(a).
9
United States v. Gaubert, 499 U.S. 315, 322–23, 111 S. Ct. 1267, 1273–74 (1991).
10
Id. at 322, 111 S. Ct. at 1273.
11
Id. at 323, 111 S. Ct. at 1274.
12
Id. at 322, 111 S. Ct. at 1273.
13
Id. at 322–23, 111 S. Ct. at 1273–74.
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No. 05-41482
constrained the prison officials’ discretion such that if the factual predicate to
the policy was met, there was no room for choice in making the decision
whether to place Ashford in solitary confinement. There is a dispute,
however, about whether the factual predicate to the policy was met: Ashford
claims he raised safety concerns, thereby triggering the policy. Government
witnesses testified to the contrary. That fact dispute makes summary
judgment on the discretionary-function exception improper.
In an attempt to avoid this result, the Government cites a string of
cases in which courts have held that the discretionary-function exception
protects prison officials’ decisions about inmate safety.14 But in each of those
cases, the inmate could point to no specific prison policy or regulation that
constrained prison officials’ judgment other than the prison’s general duty to
protect its prison population.15 Here, however, there is a specific policy in
place that constrained the decision-making ability of the prison officials.16
Accordingly, the United States should not have been granted summary
judgment on the discretionary-function exception.
We REVERSE the grant of summary judgment in favor of the United
States on Ashford’s FTCA claim and REMAND. Because we reverse, we
DENY Ashford’s motion for the production of the audio tape of the Flowers
hearing as moot.
14
See Santana-Rosa v. United States, 335 F.3d 39, 43–44 (1st Cir. 2003); Dykstra v.
United States Bureau of Prisons, 140 F.3d 791, 795–96 (8th Cir. 1998); Calderon v. United
States, 123 F.3d 947, 948–950 (7th Cir. 1997).
15
See Santana-Rosa, 335 F.3d at 43–44; Dykstra, 140 F.3d at 795–96; Calderon, 123
F.3d at 948–50.
16
See Gaubert, 499 U.S. at 322, 111 S. Ct. at 1273 (noting that a “federal statute,
regulation or policy” can work to nullify the discretionary-function exception (emphasis added)).
6