Logue v. United States, 71-2426.

Decision Date31 July 1972
Docket NumberNo. 71-2426.,71-2426.
Citation463 F.2d 1340
PartiesOrval C. LOGUE, etc., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Anthony J. P. Farris, U. S. Atty., William L. Bowers, Jr., Asst. U. S. Atty., Houston, Tex., for defendant-appellant.

Wm. R. Edwards, Corpus Christi, Tex., Marvin Foster, Alice, Tex., Philip K. Maxwell, Corpus Christi, Tex., for plaintiff-appellee.

Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

(Opinion May 1, 1972, 5 Cir., 1972, 459 F.2d 408).

PER CURIAM:

The Petition for Rehearing is denied and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is also denied.

Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges.

JOHN R. BROWN, Chief Judge, with whom WISDOM and GOLDBERG, Circuit Judges, join, dissenting from the denial of rehearing en banc:

If a Deputy United States Marshal, after discovering a tubercular prisoner's critical physical condition, nevertheless decided to consign that individual to the custody of State authorities in a county jail without first determining whether the facilities provided adequate treatment for tuberculosis victims, and without even attempting to find out whether the conditions of confinement reasonably assured continued survival, I have difficulty believing that the Government's liability under the Federal Tort Claims Act for death resulting from lack of proper medical attention or from an unsanitary environment could be avoided with the bland assertion that the Marshal had no authority to convert the jail into a hospital. Since the facts of the present case are not materially different, I suggest that this serious and previously unresolved problem involving the care of Federal prisoners temporarily confined under contract with State officials is of sufficient importance to merit en banc reconsideration by the Court.

No one disputes that the Marshal was explicitly charged by law with an affirmative duty to provide for the safekeeping, care and protection of persons in his custody accused of Federal offenses, 18 U.S.C.A. § 4042. No one suggests that the Marshal was not given more than fair warning of his prisoner's unmistakably suicidal tendencies as a result of his initially unsuccessful but obviously serious attempt to take his own life. No one asserts that the Marshal made any reasonably diligent effort to assure proper supervision of the prisoner while he was confined alone in his cell or that the same tragic result would have transpired if Logue had remained in a hospital equipped to provide the necessary surveillance. The only justification advanced for overturning the District Court's finding of negligence on the part of the Marshal is the conclusion that the record provides no basis for holding that he "had any power or authority to control any of the internal functions of the Nueces County jail."

Without initiating an extensive discourse on the state of the evidence— which seems to offer at least some tangible support for the theory that the Sheriff and his deputies were subject to the Marshal's control because they frequently complied with his informal instructions or suggestions1—I need only point out that the question of the Marshal's authority to effect changes in the conditions of confinement is actually irrelevant here. The breach of the statutory duty of care occurred when Logue was confined under circumstances which the Marshal knew were inherently dangerous in the absence of special precautions, regardless of what he may or may not have been empowered to do about the situation. Once the Government undertakes performance of an act entailing a duty of ordinary care it may not thereafter avoid liability under the Federal Tort Claims Act simply by abandoning the undertaking and attempting to attribute the responsibility to someone else. Indian Towing Company v. United States, 1955, 350 U.S. 61, 69, 76 S.Ct. 122, 126, 100 L.Ed. 48, 56; United States v. Gavagan, 5 Cir., 1960, 280 F.2d 319, cert. denied, 1961, 364 U.S. 933, 81 S.Ct. 379, 5 L.Ed.2d 365.

Rather than providing for Logue's safety, the Marshal simply abandoned him, thus breaching the duty of care which, "in the case of a mental patient, * * * must be reasonably adapted and proportioned to his known suicidal, homicidal, or other like destructive tendencies." United States v. Gray, 10 Cir., 1952, 199 F.2d 239, 242. In this respect the present case is equivalent to Underwood v. United States, 5 Cir., 1966, 356 F.2d 92, in which liability under the Act resulted from the Air Force's negligence in permitting a mentally deranged Airman to return to unrestricted duty and to draw from the armory a pistol he subsequently used to kill his wife. There was no suggestion that liability was contingent upon the exercise of "authority" or "control" by the Government at the time of the shooting, since liability arose only from the initial failure to utilize ordinary care. The same is true here—the Marshal's purported inability to arrange for the continuous observation of the prisoner does not excuse the earlier breach of the duty to provide a reasonably safe place of confinement.2

The Court also reasons that the negligence of the State authorities in...

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