United States Court of Appeals
For the First Circuit
No. 02-2512
DOMINGO SANTANA-ROSA,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini-Ortiz, Senior U.S. District Judge]
Before
Selya, Circuit Judge
Lipez, Circuit Judge
and Ponsor*, District Judge.
Jose M. Rocafort-Bustelo, with whom Peter Calderon Melendez
was on brief for appellant.
Fidel A. Sevillano-Del Rio, Assistant U.S. Attorney, with whom
H.S. Garcia, United States Attorney, and Miguel A. Fernandez,
Assistant U.S. Attorney, were on brief for the United States.
July 9, 2003
*Of the District of Massachusetts, sitting by designation.
PONSOR, District Judge.
I. Introduction
Appellant Domingo Santana Rosa (“Santana Rosa”), a
prisoner in the custody of the Bureau of Prisons ("BOP") at the
Metropolitan Detention Center (“MDC”) in Guaynabo, Puerto Rico, was
attacked and badly injured by another inmate wielding a tool
referred to as a “sweeping brush.” He brought suit against the
United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§§ 2671 et seq., anchoring jurisdiction on 28 U.S.C. § 1346(b).
The district court granted the defendant’s motion for summary
judgment based, inter alia, on the discretionary function exception
set forth within the FTCA at 28 U.S.C. § 2680(a). Santana Rosa has
appealed this decision.
For the reasons set forth below, we conclude that the
district court properly applied the exception and appropriately
granted judgment pursuant to Fed. R. Civ. P. 56(c).
II. Factual Background
Given the entry of summary judgment, the facts as they
pertain to the issues on appeal must be viewed in the light most
favorable to the appellant. Plumley v. S. Container, Inc., 303
F.3d 364, 367 (1st Cir. 2002). Seen from this perspective, the
record would support a view of the relevant background as follows.
On July 25, 1996, Santana Rosa was playing dominos in the
recreational yard of Unit 2C at the MDC when he was the victim of
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a sudden and unprovoked attack by a fellow inmate, Jesus Bello
(“Bello”). A kitchen orderly at MDC, Bello struck Santana Rosa on
the head with a 24-inch sweeping brush. The blow inflicted severe
injuries, including a six-inch gash and associated trauma to the
head, which required hospitalization for several days. Bello was
subsequently convicted for this criminal act.
The record is not clear whether Bello received the
sweeping brush to assist him in carrying out his duties as a
kitchen orderly, or got his hands on it without permission because
the item had been left out. The complaint at paragraph 10 states
that the BOP “entrusted” Bello with the sweeping brush. The
appellant’s memorandum, at 7, on the other hand, states that the
brush was left “outside its closet and unattended,” implying that
Bello obtained it improperly. This ambiguity will not affect the
court’s analysis. Whatever the species of negligence, the court
will assume for purposes of this appeal that Bello was given, or
got, the sweeping brush as a result of some arguable failure to use
reasonable care on the part of the MDC staff.
The court will also assume that in 1988, some eight years
before the attack, Bello had been convicted of a crime of violence
(aggravated assault), as appellant claims, and that correctional
officials knew or should have known of this fact. Significantly,
however, the record also offers (1) no indication of any violence
by Bello within the facility prior to the attack on the appellant,
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(2) no previous history of friction between Bello and the appellant
and (3) no evidence of any oral or written complaints by the
appellant regarding Bello. Finally, a careful review of the record
discloses no specific rules or guidelines limiting the discretion
of the MDC staff with regard to inmate work assignments or safe-
keeping of tools.
Santana Rosa’s suit under the FTCA claimed that his
injuries resulted from the government’s negligence, specifically
the failure on the part of MDC staff to take adequate precautions
to prevent Bello from obtaining the sweeping brush and, more
generally, the facility’s failure to provide appellant adequate
protection during his term of imprisonment, in violation of 18
U.S.C. § 4042 (giving federal correctional officials the
responsibility to “safeguard” and “protect” inmates).
In a detailed memorandum, the district judge found that
the BOP’s decisions regarding job assignments and availability of
cleaning implements involved the exercise of judgment by
responsible federal employees and, as such, fell well within the
discretionary function exception to the FTCA. The court further
found that, even if the discretionary function exception did not
apply, the BOP was simply not negligent, as a matter of law.
III. Discussion
We apply a de novo standard of review to a lower court’s
determination that the discretionary function exception bars relief
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in an FTCA case. See Shansky v. United States, 164 F.3d 688, 690
(1st Cir. 1999). A brief review of the pertinent law makes
application of that standard to the facts of this case
straightforward.
We begin with the basics. Despite some discomfort with
the proposition, it is a fundamental tenet of our country’s
jurisprudence that, as a general matter, sovereign immunity bars
suits against the government. This notion derives from the British
legal fiction that “the King can do no wrong,” see Feather v. The
Queen, 122 Eng. Rep. 1101, 1205 (Q.B. 1865), and therefore can
never appear as a defendant in “his” own courts. See United States
v. Lee, 106 U.S. 196, 208 (1882). For more than a hundred years,
American judges have expressed reservations about the
transferability of a doctrine with such a distinctly monarchal
flavor to our republican nation. See Coll. Sav. Bank v. Fla.
Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 704 (1999)
(Breyer, J., dissenting) (observing that the doctrine is “more akin
to the thought of James I than of James Madison”); see also United
States v. Lee, 106 U.S. at 208. Nevertheless, the concept of
sovereign immunity, both as to the federal government and the
states, is at present firmly rooted in our law. See generally
Coll. Sav. Bank, 527 U.S. at 666; Idaho v. Coeur d’Alene Tribe, 521
U.S. 261 (1997).
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Passed in 1946, the FTCA offers a limited waiver of the
federal government’s sovereign immunity as to negligent acts of
government employees acting within the scope of their employment.
It provides that “[t]he United States shall be liable . . . in the
same manner and to the same extent as a private individual under
like circumstances. [. . .]” 28 U.S.C. § 2674. In proper
circumstances, prisoners such as the appellant here may invoke the
FTCA to seek damages for injuries received while in confinement.
United States v. Muniz, 374 U.S. 150, 153 (1963).
The potentially broad avenue offered by the FTCA around
sovereign immunity, however, is itself subject to several
exceptions. Perhaps the most expansive of these is the
“discretionary function” exception, which precludes government
liability for claims 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 Government,
whether or not the discretion involved be abused.” 28 U.S.C. §
2680(a). Proper invocation of this exception means that the
government will be shielded from liability, no matter how
negligently an employee may have acted. See, e.g., Bruneau v.
United States, 150 F. Supp. 2d 303, 308 (D. Mass. 2001).
The elastic nature of the discretionary function
exception extends the government’s protection from liability to a
broad range of conduct. Because of this, the exception has
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attracted pungent criticism. As one Circuit Judge has described
it, “two hundred years after we threw out King George III, the rule
that ‘the king can do no wrong’ still prevails at the federal level
in all but the most trivial matters. . . . [T]he FTCA (and for that
matter Congress’ injunction that a program be carried out safely)
is largely a false promise in all but ‘fender benders’ and perhaps
some cases involving medical malpractice by government doctors.”
Allen v. United States, 816 F.2d 1417, 1424-25 (10th Cir. 1987)
(McKay, C.J., concurring). Chief Judge Merritt of the Sixth
Circuit has observed, more colorfully, that “the discretionary
function exception has swallowed, digested and excreted the
liability-creating sections of the Federal Tort Claims Act.”
Rosebush v. United States, 119 F.3d 438, 444 (6th Cir.
1997)(Merritt, C.J., dissenting).
Despite these criticisms, given the FTCA’s rather broad
waiver of sovereign immunity, the rationale for some sort of
discretionary function exception is compelling. Governmental
operations would be burdened, if not paralyzed, with courts “second
guessing” policy decisions through the medium of tort law.
Berkovitz v. United States, 486 U.S. 531, 536-37 (1988). As the
Supreme Court has held, the discretionary function exception “marks
the boundary between Congress’ willingness to impose tort liability
upon the United States and its desire to protect certain
governmental activities from exposure to suit by private
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individuals.” United States v. S.A. Empresa de Viacao Aerea Rio
Grandense (Varig Airlines), 467 U.S. 797, 808 (1984).
The precise contours of the discretionary function
exception have themselves evolved since the FTCA’s enactment, as
the courts have attempted to understand its scope and shape its
impact. For the first forty years or so, an application of the
discretionary function exception depended on whether the conduct
occurred at a planning stage, rather than the “operational level.”
See Indian Towing Co. v. United States, 350 U.S. 61, 64 (1955);
Dalehite v. United States, 346 U.S. 15, 34 (1953).
This distinction was eventually discarded in favor of an
analysis based upon “the nature of the conduct rather than the
status of the actor.” Varig Airlines, 467 U.S. at 813; see also
Berkovitz, 486 U.S. at 536.
As the law stands now, the analysis of whether the
discretionary function exception applies in a particular FTCA case
begins, naturally enough, with the question of whether the
Government’s allegedly actionable conduct was discretionary.
United States v. Gaubert, 499 U.S. 315, 322 (1991); see also Magee
v. United States, 121 F.3d 1, 4 (1st Cir. 1997). To demonstrate
that its conduct was discretionary, the government need only show
that there was “room for choice” in making the allegedly actionable
decision or decisions. Attallah v. United States, 955 F.2d 776,
783 (1st Cir. 1992). If the challenged conduct is found to have
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been discretionary, a court must then assess whether the
Government’s actions were of the kind that the discretionary
function exception was designed to shield -- that is, whether the
Government’s acts were “susceptible to policy analysis.” Gaubert,
499 U.S. at 325.
In this case, the appellant’s claims may be construed to
challenge both specific aspects of the government’s behavior --
including its failure to secure the sweeping brush properly and
(perhaps) its allegedly negligent decision to assign the assailant
duties as a kitchen orderly -- as well as the government’s more
general failure to safeguard the appellant’s well being. As
discussed below, the discretionary function exception applies to
both of these theories of negligence.
Turning to the appellant’s more specific claims, and
beginning with the first portion of the Gaubert inquiry, the court
is constrained to conclude, as a matter of common sense and
practicality, that the BOP necessarily exercised discretion --
within an atmosphere where there was “room for choice” -- in
deciding to assign Bello duties as a kitchen orderly and in
determining where and how to store necessary cleaning equipment.
As the district court’s memorandum points out, the relevant BOP
program statement and MDC housekeeping plan outline broad
guidelines for occupational safety and facility sanitation, without
any explicit controlling directives. The BOP exercises, and must
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exercise, broad discretion in making these sorts of decisions
within a penal facility.
Turning to the second segment of the Gaubert inquiry, the
court must also conclude that decisions regarding maintenance of
cleaning supplies and inmate work assignments are susceptible to
policy-related analysis. Possible considerations that would
inevitably influence decision-making in this area might include,
for example: budgetary concerns, sanitation needs, the character of
the particular inmate population, the need for a specific level of
security, the proper scheduling of cleaning assignments, the
convenience or necessity of easy access to necessary equipment, and
the available inmates’ prior work experience. An assessment of
these factors, and probably others, would necessarily be required
to produce the decision whether to give a particular inmate a
specific job assignment and how to secure needed equipment.
In sum, no claim under the FTCA can be pursued on the
facts offered here, based upon the defendant’s decision to select
plaintiff’s assailant for his job assignment, or to secure the
sweeping brush he ultimately used as a weapon.
Equally clearly, the discretionary function exception
precludes appellant’s more general claim that the BOP failed to
protect him. At least two other courts of appeals have issued
well-reasoned opinions applying the discretionary function
exception in the context of prisoner-on-prisoner attacks. The
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Eleventh Circuit specifically rejected the proposition that a
prisoner who has been attacked by another can bring a claim based
generally upon allegations that “the BOP was negligent in
classifying the prisoner who committed the assault and placing him
in the institution at which the attack occurred, . . . or in not
providing more guards, and so forth.” Cohen v. United States, 151
F.3d 1338, 1344 (11th Cir. 1998), cert. denied, 526 U.S. 1130
(1999). The Seventh Circuit has reached a similar conclusion.
See Calderon v. United States, 123 F.3d 947, 949-50 (7th Cir.
1997).
We find the holdings of these circuits persuasive.
Statutory provisions vest the BOP with the task of providing for
the protection and safekeeping of prisoners in very general terms.
The BOP is broadly entrusted with “management and regulation of all
Federal penal and correctional institutions.” It is to provide for
“the safekeeping, care and subsistence of all persons charged with
or convicted of offenses against the United States” and guarantee
“the protection, instruction, and discipline of all persons charged
with or convicted of offenses against the United States.” 18
U.S.C. § 4042. As noted by the Eleventh Circuit, these provisions
“do not mandate a specific, non-discretionary course of conduct,”
but rather leave the BOP “ample room for judgment.” Cohen, 151
F.3d at 1343.
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The management of large numbers of potentially dangerous
individuals within a penal facility inevitably requires not only
the exercise of discretion but decision-making within the context
of various difficult policy choices. In many, if not most,
instances where an inmate is unfortunately injured by another
inmate, it will be possible to argue that a different exercise of
discretion or a different policy choice might well have forestalled
the injury. Nevertheless, decisions with regard to classification
of prisoners, assignment to particular institutions or units, and
allocation of guards and other correctional staff must be viewed as
falling within the discretionary function exception to the FTCA, if
penal institutions are to have the flexibility to operate. In this
case, as in Cohen and Calderon, the facts viewed in the light most
favorable to the plaintiff “exemplif[y] the type of case Congress
must have had in mind when it enacted the discretionary function
exception.” Id. at 1344.
In reaching this decision, it is important to emphasize
that we do not intend to suggest that a prisoner-on-prisoner attack
may never provide the basis for a claim under the FTCA. Indeed,
the Supreme Court’s Muniz decision constitutes controlling
authority to the contrary. In that case, the plaintiff was
attacked by twelve other inmates and pursued by them into a
dormitory under the eyes of a guard who, instead of intervening,
chose to lock the plaintiff inside the dormitory with his
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attackers. Thus assisted, the attackers proceeded to beat the
plaintiff so badly his skull was fractured and he was blinded in
one eye. United States v. Muniz, 374 U.S. at 152. Although the
Court declined to opine on the applicability of the discretionary
function exception to those facts, id. at 163, a scenario of that
sort obviously offers a sharp contrast to the facts of record here.
In this case, we simply hold that, however ambiguous the boundaries
of the discretionary function exception may appear to be, the
conduct cited by this appellant as the basis for his claim
manifestly fell within them.1
In view of our conclusion that the discretionary function
exception deprived the district court of jurisdiction over this
FTCA claim, we need not address the district court’s alternate
holding that, even if the discretionary function exception did not
apply, the BOP was simply not negligent, except to note that the
district court’s decision on this point appears well founded.
Apart from the attack itself, regrettable as that was, little or no
evidence of any failure to use reasonable care is visible on this
record.
1
Following argument, the appellant filed a supplemental
motion, termed a “Motion in Auxilium,” offering additional material
for this court’s consideration. That motion is improper and is
hereby DENIED, with the observation (for what consolation it may
offer) that the contents of the motion, even if considered, would
not have affected the outcome of this appeal.
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For the foregoing reasons the decision of the district
court is AFFIRMED.
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