Bultema v. U.S.

Decision Date03 April 2002
Docket NumberNo. 4:01 CV 0951.,4:01 CV 0951.
Citation195 F.Supp.2d 1001
PartiesJames BULTEMA, Plaintiff, v. UNITED STATES of America, et al., Defendants.
CourtU.S. District Court — Northern District of Ohio

Mark L. Wakefield, Lowe Eklund Wakefield Co., Cleveland, OH, for Plaintiff.

Marlon A. Primes, Office of the United States Attorney, Northern District of Ohio, Cleveland, OH, for Defendants.


DOWD, District Judge.

Before the Court is the defendants' amended motion for summary judgment with supporting exhibits. (Doc. Nos. 17, 18).1 On March 7, 2002, plaintiff filed his memorandum in opposition. (Doc. No. 19).2 The defendant filed a reply brief after obtaining leave of Court. (Doc. No. 26). For the reasons discussed below, the motion is granted.


On April 19, 2001, James Bultema filed his complaint against the United States, Attorney General John Ashcroft, U.S. Attorney Emily Sweeney, and Kathleen Sawyer, who is the Director of the Bureau of Federal Prisons. He asserted a claim of negligence under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. 2671, et seq.,3 over which this Court exercises jurisdiction pursuant to 28 U.S.C. § 1346(b).

Put simply, the facts are that Bultema was an inmate at the Federal Correctional Institution in Elkton, Ohio ("FCI"), serving a six-month sentence for bank fraud4 when, on April 2, 1998, he fell from an upper bunk bed and severely injured his knee. The complaint alleges that the proximate cause of his injury was the negligence of Bureau of Prison personnel. Although that is a bare-bones description of the facts, the record before the Court provides considerably more detail.

On March 18, 1998, about three weeks after Bultema arrived at FCI to serve his 6-month sentence, he was examined by physician's assistant Danny Hall, as is routine for new inmates. (Bultema Dep. at 127; Hall Dep. at 18). Although Bultema was, by his own assessment, in "good health" (Bultema Dep. at 137),5 Hall completed a form6 indicating "no climbing" and that Bultema should be "allow[ed][a] bottom bunk" (Bultema Dep. at 139; Doc. No. 18, Part 8). Hall testified that it was his standard practice to give the inmate two copies of the form, instructing the inmate to keep one and give the other to his unit officer. Bultema's unit officer was Janel Fitzgerald. (Hall Dep. at 31; Fitzgerald Dep. at 112). Bultema's cellmate, Walter Brown, also testified that it was prison policy that the inmate would be given two forms, one to keep for himself and one to give to the officer in his unit. Brown himself followed this procedure to get his bottom bunk. (Brown Dep. at 12-13).7 Notwithstanding this testimony regarding the policy, Bultema says he only got one copy of the form and was never told to give it to anyone. (Bultema Dep. at 137-38). Therefore, he simply stored his copy in his locker and did not give it to anyone or tell anyone about it until after his fall and injury. (Bultema Dep. at 147-48; Fitzgerald Dep. at 112). He stated that he thought he would get the proper bunk bed "through the system[.]" (Bultema Dep. at 150).

On March 18, 1998, the medical restriction allowing Bultema to have a bottom bunk was entered into the prison's Sentry computer system, which was available to Fitzgerald. Even so, she admits that she never checked the computer prior to Bultema's fall and injury because she "didn't think there was any reason to." She testified that it would have been unwieldy to use the computer to independently discover specific facts about any given inmate (e.g., that he had been assigned to a bottom bunk) because that would require running several separate code searches for each inmate. She testified that, if she had to check the computer for such information, that is "all [she] would be doing." (Fitzgerald Dep. at 117). It was just easier for the inmate to tell her that he had been assigned to a bottom bunk and that was the policy. (Id. at 63-66).

The evidence is undisputed that lower bunks were highly sought after and that follow-up on a bottom-bunk assignment by any prison official was never necessary because prisoners assigned to lower bunks always made sure they told the unit officer that they were entitled to one. (Hall Dep. at 50). Bultema's cellmate testified that he never heard of any inmate being given a bottom bunk pass and then choosing to sleep in a top bunk. (Brown Dep. at 23-24). Bultema never told Fitzgerald about his bottom-bunk pass until after his injury. She was incredulous that he had not told her sooner. (Fitzgerald Dep. at 82, 118). She acknowledged that, had he told her, prison policy would have required that he be placed immediately in a bottom bunk and she would have done so. (Id. at 114).8

Even though he never got a bottom bunk "through the system" as he had expected, Bultema never complained about it to anyone, including his cellmate. (Brown Dep. at 150-51). Bultema acknowledged that he found Fitzgerald approachable and knew he could go to her if he had any problems (Bultema Dep. at 98), so he cannot argue that he was afraid to tell her about his bottom bunk pass. In fact, he did go to Fitzgerald about his mattress, complaining that it was uneven and asking for new one. (Bultema Dep. at 102; Fitzgerald Dep. at 85-87, 90, 112). Fitzgerald offered to switch him to a different cubicle, but Bultema turned down the offer because he liked his cellmate. (Fitzgerald Dep. at 86-87). Bultema was later supplied with another mattress when one became available from a vacant bunk and other inmates brought it to him. (Bultema Dep. at 128-30). He never inquired whether this vacant bunk was a bottom bunk that he could switch to. (Id. at 134). The first night Bultema slept on this new mattress, he fell out of the top bunk and severely injured his knee. (Id. at 131).

There was also testimony that it was not that uncommon for inmates to fall out of the top bunks. (Brown Dep. at 36). Some (but not all) of the bunk beds had ladders to facilitate getting into the top bunk. Inmates often used prison tools to remove these ladders and reverse them so that they would protrude above the top bunk and help to supply a barrier to falling out. (Id. at 29-30, 35). Officers were aware that this was done and no one ever prevented it or required the ladders to be returned to their original condition. (Id. at 37).


Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56. When considering a motion for summary judgment, "the inferences to be drawn from the underlying facts contained in [affidavits, pleadings, depositions, answers to interrogatories, and admissions] must be viewed in the light most favorable to the party opposing the motion." U.S. v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). However, the adverse party "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The Rule requires the nonmoving party who has the burden of proof at trial to oppose a proper summary judgment motion "by any of the kinds of evidentiary material listed in Rule 56(c), except the mere pleadings themselves[.]" Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). General averments or conclusory allegations of an affidavit do not create specific fact disputes for summary judgment purposes. See Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Nor may a party "create a factual issue by filing an affidavit, after a motion for summary judgment has been made, which contradicts ... earlier deposition testimony." Reid v. Sears Roebuck & Co., 790 F.2d 453, 460 (6th Cir.1986) (citing Biechele v. Cedar Point, Inc., 747 F.2d 209, 215 (6th Cir.1984)). Further, "`[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.'" Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir.1989) (quoting Anderson v. Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505).

In sum, "[t]he inquiry performed is the threshold inquiry of determining whether there is the need for a trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, 477 U.S. at 250, 106 S.Ct. 2505.


In his complaint, Bultema makes an FTCA claim for damages, asserting that his fall from the top bunk was due to the negligence of prison authorities (Compl.¶ 5), specifically, their "improper construction and assembly of the bunk bed in which Mr. Bultema was assigned the top bunk, specifically the ladder safety rails and the installation of a metal plate on the bottom bunk." (Compl.¶ 6). In his response to the summary judgment motion, Bultema argues that the defendants were "negligent in two separate and distinct respects[.]" (Doc. No. 19, at 2). "The first was to require Mr. Bultema to sleep in a top bunk after he had been examined by Bureau of Prisons' personnel and it was medically determined he be required to sleep on a bottom bunk. After negligently failing to abide by their own mandated policies, the United States Government further negligently caused Mr. Bultema's injuries by failing to provide guardrails on the top bunk, notwithstanding an extensive history of inmates' falling from top bunks and injuring themselves." (Id., emphasis in original). The defendants have addressed both prongs of the negligence claim in their motion.

The FTCA provides a limited waiver of the federal government's sovereign immunity "for injury or loss of property, or...

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