Winston v. United States, 84

• Decision Date: 27 February 1962
• Docket Number: No. 84,Docket 27098.,84
• Citation: 305 F.2d 253
• Parties: Henry WINSTON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

305 F.2d 253 (1962)

Henry WINSTON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 84, Docket 27098.

United States Court of Appeals Second Circuit.

Argued November 28, 1961.

Decided February 27, 1962.

Rehearing Decided June 28, 1962.

John J. Abt, New York City, for plaintiff-appellant.

Jerome I. Levinson, Atty., Dept. of Justice, Washington, D. C. (William H. Orrick, Jr., Asst. Atty. Gen., Morton Hollander, Atty., Dept. of Justice, Washington, D. C., and Robert M. Morgenthau, U. S. Atty., New York City, on the brief), for defendant-appellee.

Before CLARK, HINCKS and KAUFMAN, Circuit Judges.

Rehearing En Banc Decided June 28, 1962.

HINCKS, Circuit Judge.

Appellant Henry Winston, since 1956 a prisoner in the United States Penitentiary at Terre Haute, Indiana, brought this action against the United States under the Tort Claims Act, 28 U.S.C. ?? 1346, 2674 (1958). Winston's complaint alleged that in April of 1959 he had contracted a brain tumor. Disturbed by his "dizziness, instability, and difficulty with his vision," his then attorney procured an examination by prison medical officers. Negligently failing to use reasonable care and skill in examination, says Winston, the medical officers made a diagnosis of "borderline hypertension" and prescribed a reduction in weight.

The complaint continues. Further attacks, reaching a frequency of "a number of times daily," severe headaches, inability to walk, and periodic loss of vision plagued Winston and caused him to complain to the prison authorities. No further examinations, however, were made; instead he was given dramamine. In January, 1960, Winston's attorney visited him at Terre Haute and, alarmed by his condition, secured examination by a consulting physician. Next month, an operation in New York City removed a benign tumor of the cerebellum. The delay in treatment has made Winston permanently blind.

On a motion to dismiss, the court below, which necessarily took the foregoing allegations of the complaint as true, dismissed the complaint on the ground that the Tort Claims Act does not permit suits by federal prisoners against the United States. The question is whether that judgment was right.

Prisoners have traditionally been able to sue their jailers as individuals for injuries caused by the jailer's negligence. See, e. g., Hill v. Gentry, 280 F.2d 88 (8th Cir. 1958), cert. denied, 364 U.S. 875, 81 S.Ct. 119, 5 L.Ed.2d 96 (1960).¹ The doctrine of sovereign immunity, however, has insulated the state from liability for the acts of its agents, see Prosser, Torts, 770-80 (1955).²

With the passage of the Tort Claims Act, which by its terms does not except prisoners, it would seem that the sole barrier to federal prisoners' suits against the United States had been removed. Nevertheless, argues the government, the result of allowing such suits would be deleterious to prison discipline and to uniform operation of the prison system. The evil consequences are so plain, it says, that Congress could not possibly have meant to allow them; therefore we should read the statute as containing an implied exception of prisoners' suits.

The argument is circular. The question for decision is what Congress thought and intended. Whether discipline would be impaired is a legislative judgment. To assert that because discipline would suffer Congress could not have intended the result is only to say that Congress thought one thing rather than another ?€” which is the very question we seek to answer.

And, circularity apart, the assertions of dire consequences seem to us overdrawn. The results on discipline could hardly be worse when the government is sued than when individual prison employees or officials are defendants. And since the latter class of suits, though possible for some time, seem to have brought neither a multiplicity of suits nor an impairment of prison discipline, the assertion that suits directly against the government would have these results is at best dubious. The government argues that since under the Tort Claims Act the local law is made applicable there will be an undesirable loss of unformity in the decisions. But this argument adds little of weight. The resulting loss of uniformity is slight compared with that attendant on the Erie doctrine: it is justified by the same considerations. Bankruptcy is also a "uniform system of federal law," but it depends in many cases on state priority and contract law. Moreover, as plaintiff points out, the Tort Claims Act expressly envisions imperfect uniformity in its application by referring the determination of liability to "the law of the place where the act or omission * * * occurred." Considerations of "uniformity" did not disturb the Supreme Court when it held that the United States was liable for the acts of its Forest Service in Rayonier, Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed. 2d 354 (1957).

But, says the government, Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), precludes recovery here. Feres denied tort recovery to members of the Armed Forces for injuries incurred in service. The government takes this case not only to establish that implied exceptions may be read into the Act, but to command such an exception here.

The analogy is not close enough to be persuasive. The first premise of Feres was that the Tort Claims Act, while terminating government immunity, created no new liabilities, and that no American law had "ever * * * permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving," 340 U.S. at 141, 71 S.Ct. at 157 (emphasis added). Suits by prisoners against jailers and local governments, however, had been authorized prior to the passage of the Tort Claims Act. Further, the pertinence of Feres is at best questionable in view of Rayonier, where it was said (352 U.S. at 319, 77 S.Ct. at 377):

"It may be that it is `novel and unprecedented\' to hold the United States accountable for the negligence of its firefighters, but the very purpose of the Tort Claims Act was to waive the Government\'s traditional all-encompassing immunity from tort actions and to establish novel and unprecedented governmental liability."

This language, moreover, arose out of a case stronger for the government than the instant case: municipalities have traditionally not been held liable for acts of their firefighters, but have often been so held for acts of their jailers. Thus analogy to Feres' first premise does not help the government here.

The second premise of Feres was that uniformity in the "distinctively federal" relationship between soldiers and the government was an overriding need. If that is so, it is on considerations of military efficiency. But such considerations are irrelevant to the government-prisoner relationship.

The court's final reason, in Feres, for believing that soldiers were excepted from the Tort Claims Act was that Congress had provided a system of compensation, "simple, certain, and uniform," 340 U.S. at 144, 71 S.Ct. at 158, for injuries or death of members of the Armed Forces. The court spoke of this system, and its generous character, at some length. 340 U.S. at 145-146, 71 S.Ct. 153. And some courts ?€” notably the Eighth Circuit in Lack v. United States, 262 F.2d 167 (1956) ?€” have felt that the existence of a compensation system for prisoners injured in work activity similarly imports an intent to exclude them from the benefits of the Tort Claims Act.

But the prisoners' compensation system, 18 U.S.C. ? 4126 (1958), as amended, P.L. 87-317, 75 Stat. 681 (1961), extends only to prisoners actually engaged in work in prison industry and maintenance. Many prisoners are not so engaged at any time, see Note, 63 Yale L.J. 418, 424 & n. 48. And those so employed actually work at such tasks for only a portion of the day. Like many workmen's compensation systems, ? 4126 affords redress notwithstanding contributory negligence and even in the absence of negligence on the part of the government. Relief is entirely at the discretion of the Attorney General, and is given in any event only for injuries suffered on the job, see 63 Yale L.J. at 424. In comparison with the military compensation program, 38 U.S.C. ? 700 (1958), now ? 101(13), which affords relief for virtually all service-incurred injuries, see 340 U.S. at 145, 71 S.Ct. 153, the prison work-compensation plan is vastly less comprehensive and is in no real sense a substitute for tort liability.³

If reliance on Feres is thus precluded, little remains to support an exception to the Act which Congress wholly failed to articulate. It is true that the Act equates government liability to that which would attach to a private person. And the government argues that no private person could be liable since none is authorized to hold another in servitude, But, as was said in Rayonier:

"* * * the test established by the Tort Claims Act for determining the United States\' liability is whether a private person would be responsible for similar negligence under the laws of the State where the acts occurred. We expressly decided in Indian Towing that the United States\' liability is not restricted to the liability of a municipal corporation or other public body and that an injured party cannot be deprived of his rights under the Act by resort to an alleged distinction, imported from the law of municipal corporations, between the Government\'s negligence when it acts in a `proprietary, capacity and its negligence when it acts in a `uniquely governmental\' capacity," 352 U.S. at 319, 77 S.Ct. at 376. (Emphasis added.)

And see Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955). Moreover, a "private person" ?€” i.e., the jailer himself ?€” could be held liable for his negligence here, see Hill v. Gentry, supra. Thus the government cannot claim immunity on either facet of its argument that prisons are a ...