Alfrey v. USA.

• Decision Date: 11 January 2002
• Docket Number: AND,DEFENDANTS-APPELLEE,PLAINTIFF-APPELLANT,DEFENDANT-APPELLEE,No. 00-35838,00-35838
• Citation: 2002 WL 27603,276 F.3d 557
• Parties: (9th Cir. 2002) JANE LARGENT ALFREY, PERSONAL REPRESENTATIVE OF THE ESTATE OF THOMAS MARTIN ALFREY,, v. UNITED STATES OF AMERICA, JANE LARGENT ALFREY, PERSONAL REPRESENTATIVE OF THE ESTATE OF THOMAS MARTIN ALFREY,, v. JOSEPH H. CRABTREE, WARDEN FCI SHERIDAN; LT. KYLE OLSON,LT. STEVEN SALES, B. HUERTE, R. KLINE, JEFFREY C. SULLIVAN, ALL EMPLOYED AT FCI SHERIDAN, AND JOHN DOE NOS. 1-3, ALSO EMPLOYED AT FCI SHERIDAN, ALL SUED INDIVIDUALLY AND AS ACTING AS FEDERAL OFFICERS, DEFENDANTS
• Court: U.S. Court of Appeals — Ninth Circuit

Page 557

276 F.3d 557 (9th Cir. 2002)

JANE LARGENT ALFREY, PERSONAL REPRESENTATIVE OF THE ESTATE OF THOMAS MARTIN ALFREY, PLAINTIFF-APPELLANT, v. UNITED STATES OF AMERICA, DEFENDANT-APPELLEE.

JANE LARGENT ALFREY, PERSONAL REPRESENTATIVE OF THE ESTATE OF THOMAS MARTIN ALFREY, PLAINTIFF-APPELLANT, v. JOSEPH H. CRABTREE, WARDEN FCI SHERIDAN; LT. KYLE OLSON, DEFENDANTS-APPELLEES AND LT. STEVEN SALES, B. HUERTE, R. KLINE, JEFFREY C. SULLIVAN, ALL EMPLOYED AT FCI SHERIDAN, AND JOHN DOE NOS. 1-3, ALSO EMPLOYED AT FCI SHERIDAN, ALL SUED INDIVIDUALLY AND AS ACTING AS FEDERAL OFFICERS, DEFENDANTS.

No. 00-35838

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted September 12, 2001

Filed January 11, 2002

[Copyrighted Material Omitted]

Counsel Linda K. Williams, Portland, Oregon, for the plaintiff-appellant.

Craig J. Casey, Assistant United States Attorney, Portland, Oregon, for the defendant-appellee.

Appeal from the United States District Court for the District of Oregon Malcolm F. Marsh, District Judge, Presiding. D.C. No. CV-99-63-MA, D.C. No. CV-99-1181-MA

Before: David R. Thompson, A. Wallace Tashima, and Susan P. Graber, Circuit Judges.

Opinion by Judge Graber; Concurrence in part and dissent in part by Judge Tashima

Graber, Circuit Judge:

In this case, we must decide, first, whether the discretionary-function exception, 28 U.S.C. §§ 2680(a), bars Plaintiff Jane Largent Alfrey's action against the United States (Government) under the Federal Tort Claims Act (FTCA). Plaintiff alleges that the Government's negligence resulted in the death of her husband, Thomas Martin Alfrey, an inmate at the Sheridan Federal Correctional Institution (Sheridan). Specifically, she alleges that the Government negligently assigned her husband to share a cell with an inmate serving a state sentence, who eventually killed him; negligently failed to remove her husband from the cell after his cellmate had threatened him; negligently failed to investigate the cellmate on a computer database; and negligently failed to find the murder weapon during a search of the cell following the threat. With one exception, we conclude that the Government's conduct, even if negligent, involved the exercise of discretionary functions. The exception is Plaintiff's claim that the Government negligently failed to discharge a nondiscretionary duty to perform a "Central Inmate Monitoring" (CIM) evaluation before assigning the state prisoner to share Alfrey's cell, as to which there are genuine issues of material fact. Consequently, 28 U.S.C. §§ 2680(a) bars Plaintiff's action except as to that claim.

We also hold that the district court properly dismissed Plaintiff's claims against several individual prison officials under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics 403 U.S. 388 (1971).

Accordingly, we affirm in part, reverse in part, and remand in the FTCA action and affirm in the Bivens action.

FACTUAL AND PROCEDURAL BACKGROUND

In 1978, Thomas Martin Alfrey was convicted in federal court of conspiring to distribute marijuana and of importing marijuana. He was released on parole in 1982. In December 1996, after violating conditions of his parole for a fourth time, Alfrey was confined at Sheridan. He was assigned to bunk 101 in the J-2 housing unit, where he remained until the time of his death.

On January 13, 1997, inmate Daniel Casto was assigned to Alfrey's cell. Casto was a prisoner of the State of Oregon who was serving his state sentence at the Eastern Oregon Correctional Institution (EOCI), a state facility. While at EOCI, Casto sent a threatening letter to a judge. Casto was charged with a federal offense and transferred to Sheridan, apparently so that he would be closer to the United States District Court in Eugene, Oregon, where proceedings related to that charge would be heard.

In the early evening of January 18, 1997, while walking to the prison library, Alfrey asked to speak with Corrections Officer Sullivan. Alfrey told Sullivan that he wanted to change cells because Casto had threatened to kill him, wrap him up in paper, and hang him on the door for Martin Luther King Day (January 20, 1997). Sullivan told Alfrey that he would ask Lieutenant Olsen to speak with him. Alfrey responded that he did not want to talk to Olsen; he simply wanted to be moved or to have Casto moved.

Sullivan reported the conversation to Corrections Officer Hurte.¹ Hurte then telephoned Olsen and reported Alfrey's concerns to him. Olsen asked whether Hurte thought that Alfrey's request might be a "ploy" to move into another cell. Hurte said "yes." Olsen decided not to move Alfrey, in part because Alfrey declined to speak to him personally. Olsen did not check "SENTRY" (a computer database) for information about Casto before making that decision.

After the conversation with Alfrey, Hurte and Sullivan and a third officer removed Casto from the cell and searched the cell. The search revealed no weapons, written threats, or other contraband.

At about 7:55 p.m. on January 18, Alfrey returned to his cell. At 8 p.m. another inmate reported that Casto was killing Alfrey. Officers immediately went to Alfrey's cell, where they found Alfrey face down on the floor with a"rope" around his neck. The rope was constructed from what appeared to be torn sheets. None of the sheets in the cell was found to be torn.

Alfrey was transported to a local hospital. He died that evening. An autopsy determined that the cause of death was "strangulation with severe abdominal trauma and internal bleeding." Casto was convicted of murdering Alfrey and is serving his sentence for Alfrey's murder concurrently with the state sentence.

Plaintiff, acting as the personal representative of Alfrey's estate, filed two actions in district court. One, an action under the FTCA, Case No. CV-99-1181-MA, alleged that the Government was liable because of its employees' negligent conduct. The other, a Bivens action, Case No. CV-99-63-MA, alleged that various prison officials had violated Alfrey's First, Fifth, and Eighth Amendment rights by their conduct related to his death.

The two actions were consolidated, after which all Defendants filed a motion for summary judgment. The district court granted the motion in its entirety. The court ruled that 28 U.S.C. §§ 2680(a) bars all the FTCA claims because the challenged conduct involved the exercise of discretion. The court also concluded that the allegations in the Bivens action fail to state claims upon which relief can be granted. The court dismissed the case. Plaintiff filed a timely notice of appeal.

STANDARD OF REVIEW

We review de novo a grant of summary judgment. Burrell v. Star Nursery, Inc., 170 F.3d 951, 954 (9th Cir. 1999). Viewing all evidence in the light most favorable to the nonmoving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied substantive law. Id. "Whether the United States is immune from liability in an FTCA action is a question of law reviewed de novo." Fang v. United States, 140 F.3d 1238, 1241 (9th Cir. 1998).

DISCUSSION

I. FTCA Claims

The FTCA waives sovereign immunity for specified tort actions arising out of the conduct of federal employees. 28 U.S.C. §§ 2674; Fang, 140 F.3d at 1241. That waiver, however, is limited. Id. Liability cannot be imposed if the tort claims stem from a federal employee's exercise of a"discretionary function." 28 U.S.C. §§ 2680(a). Title 28 U.S.C. §§ 2680(a) provides that the FTCA waiver of immunity does not extend to

[a]ny 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 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.

We lack jurisdiction over any claim to which the discretionary-function exception applies. Sigman v. United States, 217 F.3d 785, 793 (9th Cir. 2000).

We answer the question whether the discretionary-function exception bars a particular claim by applying a two-part test. Id. First, we must decide whether the challenged conduct is discretionary, that is, whether it "involv[es] an element of judgment or choice." Fang, 140 F.3d at 1241 (citing Berkovitz v. United States, 486 U.S. 531, 536 (1988)). "This element is not met `when a federal statute, regulation or policy specifically prescribes a course of action for an employee to follow." Id. (quoting Berkovitz , 486 U.S. at 536). If the act is not discretionary, the government is not immune. Id.

Second, if the challenged conduct is discretionary, we "must determine whether that judgment is of the kind that the discretionary function exception was designed to shield." Berkovitz, 486 U.S. at 536. "Only those exercises of judgment which involve considerations of social, economic, and political policy are excepted from the FTCA by the discretionary function doctrine." Sigman, 217 F.3d at 793. "The primary focus of the second part of the test is on `the nature of the actions taken and on whether they are susceptible to policy analysis.' " Fang, 140 F.3d at 1241 (quoting United States v. Gaubert, 499 U.S. 315, 325 (1991)). "When a statute, regulation or agency guideline allows a government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion. " Weissich v. United States, 4 F.3d 810, 814 (9th Cir. 1993) (citing Gaubert, 499 U.S. at 324).

Plaintiff challenges the district court's analysis of both parts of the test. First, she argues that there is a genuine issue of material fact as to whether the Government violated nondiscretionary duties imposed by regulations or guidelines when it assigned Casto and Alfrey to the same...