Davis v. State, Dept. of Corrections

• Decision Date: 03 December 1984
• Docket Number: No. AR-120,AR-120
• Citation: 460 So.2d 452
• Parties: Terry Louis DAVIS, Appellant, v. STATE of Florida, DEPARTMENT OF CORRECTIONS, Appellee.
• Court: Florida District Court of Appeals

Page 452

460 So.2d 452

Terry Louis DAVIS, Appellant, v. STATE of Florida, DEPARTMENT OF CORRECTIONS, Appellee.

No. AR-120.

District Court of Appeal of Florida First District.

Dec. 3, 1984.

Thomas G. Sherman of DeMeo & Sherman, P.A., Coral Gables, Mark Baer, Miami, for appellant.

Jim Smith, Atty. Gen. and Kelly Overstreet Johnson, Asst. Atty. Gen., Tallahassee, for appellee.

JOANOS, Judge.

Appellant Davis, an inmate at Florida State Prison, was stabbed on the morning of September 9, 1975, while standing in his cell, by another inmate, William Freeman. Freeman had been incarcerated for first degree murder and assault with intent to commit murder, and Davis had been incarcerated for breaking and entering. Davis also recently had attempted to escape and had just been moved from a maximum confinement area into the open population area of the prison the day before the stabbing. There were no witnesses to the stabbing. The guard on duty was performing other duties, specifically, seeing that the different sections of prisoners proceeded to their work assignments. Freeman was assigned to work in the culinary department.

Freeman had previously stabbed a fellow inmate at the Dade County Jail. During processing at Lake Butler, he had been recommended for close custody classification by a corrections officer and a psychologist. The corrections officer reported that Freeman appeared to be en route to becoming a serious disciplinary problem, and that Freeman had said "that an organization is out to get him. He states that he will get them first if he is in population before they get him." The psychologist reported that Freeman was impulsive with poor judgment and minimal insight and that he possessed anti-social tendencies, was hyperactive and negative and could be severely depressed.

Davis sued Freeman and the Department of Corrections ("DOC"), alleging, among other things, that DOC was negligent in its classification of Freeman and placement of Freeman in close proximity to Davis in the open population wing; negligent in its supervision of the facility; and negligent in having an insufficient number of supervisory and security personnel to safely maintain the facility. The lower court entered summary judgment for DOC, determining that the allegation of negligent classification was non-actionable under Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979); the allegations regarding number and placement of security personnel were also non-actionable as discretionary activity by DOC; and that based on the pleadings, depositions, and affidavits, it was unforeseeable as a matter of law that Freeman would attack Davis, and the alleged injuries were caused solely by an intervening criminal act.

The record reflects that Florida State Prison is a maximum security prison and virtually all of the inmates there are classified for close custody. There are different statuses within close custody, specifically, close management I and II, and administrative or disciplinary confinement. According to the record, close management I and II involve close monitoring of inmate behavior, usually due to disciplinary problems. Administrative and disciplinary confinement involve segregation of the inmate from the rest of the prison population. Among the functions of administrative confinement is observation of an inmate upon arrival at Florida State Prison. Freeman had been in administrative confinement in April, 1975.

DOC's affidavits indicated there were no classification guidelines in effect, and classification decisions were based on the inmate's age, prior record, the nature of the offense, length of sentence, and need for available treatment programs.

Davis's primary argument on appeal is that the classification and placement of Freeman was not a discretionary function of DOC, but that the classification of a specific individual does not involve a basic policy evaluation and is therefore operational and not subject to sovereign immunity. He contends that Freeman's history, particularly his prior attack on a jail inmate and his statement about "getting" someone in population, calls into question whether DOC made a considered decision in housing him in open population. He also contends the alleged negligent placement of supervisory personnel involved implementation of a policy decision which had already been made.

We conclude the lower court did not err in granting summary judgment in this case. The classification and placement of inmates within the prison system constitutes a discretionary planning level function under the tests set forth in Commercial Carrier, therefore sovereign immunity applies. In addition, the number and placement of supervisory personnel constitutes a discretionary decision, Cf. Relyea v. State, 385 So.2d 1378 (Fla. 4th DCA 1980); Ellmer v. City of St. Petersburg, 378 So.2d 825 (Fla. 2d DCA 1979); Wong v. City of Miami, 237 So.2d 132 (Fla.1970). The allegations in this case do not bring it within the exception noted in Relyea for torts committed during implementation of security objectives "such as the accidental discharge of a weapon by security personnel, or the negligent failure of personnel to perform as instructed or intended."

Smith v. Department of Corrections, 432 So.2d 1338 (Fla. 1st DCA 1983), is distinguishable from the present case because of the inference in that case that the inmate was given preferential treatment reclassified for improper reasons unrelated to the prison function, and therefore placed in an inadequately supervised situation. No such inference of improper personal motivation exists in the present case.

The ruling on appellant's first issue renders the issue of foreseeability moot. We conclude, however, that this case involves a question of great public importance and certify the following question to the Florida Supreme Court:

WHETHER PRISON INMATE CLASSIFICATION CONSTITUTES A DISCRETIONARY FUNCTION OF THE DEPARTMENT OF CORRECTIONS FOR PURPOSES OF SOVEREIGN IMMUNITY?

AFFIRMED.

PEARSON, TILLMAN (Ret.), Associate Judge, concurs.

ERVIN, C.J., dissents with written opinion.

ERVIN, Chief Judge, dissenting.

I dissent. Despite the Department's knowledge that Freeman had assaulted another inmate less than a year before his infliction of injury upon Davis, despite evidence of his paranoidal delusions and his threats to get others before they got him, despite recommendations that Freeman be placed in close custody, and despite an affidavit of an expert in corrections that the Department was negligent in allowing Freeman to remain in open population, the lower court granted summary judgment, holding that the alleged negligent classification of Freeman by the Department of Corrections was nonactionable. I am aware that an inmate classification supervisor testified that a prisoner who is close custody may be allowed to be in open population, however he also testified that there were various types of subdivisions within the major classification of close custody, including administrative confinement and disciplinary confinement. The former meant a place to review the inmate or to observe him in an environment where he would be less prone to involve himself in any disruptive behavior. The latter subclassification required the inmate to be housed in a different wing than where Davis was placed at the time of the incident.

Notwithstanding the discretion given the Department to make a reasoned choice as to the category of custody in which to place Freeman, its decision for him to remain in open prison population cannot, under the circumstances, be considered a judgmental decision made at the planning level and therefore one immune from liability. Following Department of Transportation v. Neilson, 419 So.2d 1071, 1077 (Fla.1982), I am of the view that the Department's decision should be considered one inherently defective in that it created a "known dangerous condition" and failed to warn others who might be foreseeably harmed of the danger. The Department's choice over other alternatives can be likened to a governmental entity's election to build a highway having a curve, with the knowledge that vehicles cannot safely negotiate it at speeds of more than twenty-five miles per hour. Id. at 1078. Its decision to design the curve is itself nonactionable, but if the governmental entity fails to warn the motoring public of the hazard, it can be held liable. The basis for liability is that the agency had created a latent danger of which it had knowledge and others did not and, having done so, it was under a duty "to avert the danger or properly warn persons who may be injured by that danger." St. Petersburg v. Collon, 419 So.2d 1082, 1086 (Fla.1982). If a jury in Smith v. Department of Corrections of State, 432 So.2d 1338, 1340 (Fla. 1st DCA 1983), could reasonably conclude that violence to third persons was a foreseeable consequence of the Department's placing a dangerous inmate in minimum custody, I fail to see why a jury should not be given the same opportunity to decide the question of the agency's liability in the present case, in view of its knowledge both of his past record of assaults and his continued inclination to do so.

My view is consistent with that of holdings in other jurisdictions, requiring as a condition to recovery from a governmental unit, allegedly caused by its negligence in permitting the infliction of injuries upon one prisoner by another, that the entity must have knowledge of some unusual danger, or reason to anticipate the danger. See, e.g., Flaherty v. State, 296 N.Y. 342, 73 N.E.2d 543 (1947); City of Lexington v. Greenhow, 451 S.W.2d 424 (Ky.1970); Cohen v. United States, 252 F.Supp. 679 (D.C.Ga.1966), rev'd. on other grounds, 389 F.2d 689 (5th Cir.1967). See also, Annot., 41 A.L.R.3d 1021, 1030 (1972). Accord, Spann v. State, Department of Corrections, 421 So.2d 1090, 1092 (Fla. 4th DCA 1982) ("In order to find that the custodian's...