Bultema v. U.S.

• Decision Date: 23 February 2004
• Docket Number: No. 02-3490.,02-3490.
• Citation: 359 F.3d 379
• Parties: James BULTEMA, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

359 F.3d 379

James BULTEMA, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 02-3490.

United States Court of Appeals, Sixth Circuit.

Argued: October 31, 2003.

Decided and Filed: February 23, 2004.

ARGUED: Mark L. Wakefield, (argued and briefed), LOWE, EKLUND, WAKEFIELD & MULVIHILL, Cleveland, Ohio, for Plaintiff-Appellant.

Marlon A. Primes, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, Cleveland, OH, for Defendant-Appellee.

ON BRIEF: Mark L. Wakefield, LOWE, EKLUND, WAKEFIELD & MULVIHILL, Cleveland, Ohio, for Appellant.

Marlon A. Primes, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee.

Before: MOORE and ROGERS, Circuit Judges; FORESTER, Chief District Judge.^*

OPINION

ROGERS, Circuit Judge.

While sleeping, James Bultema fell from the top bunk of his federal prison bed and injured his knee. Bultema had previously been given a form that required him to receive a bottom bunk, but he did not deliver this form to the prison official in charge of his unit before the accident. Bultema sued the United States under the Federal Tort Claims Act, alleging that several acts of prison negligence caused his injury. The district court granted summary judgment on behalf of the Government. The Government contends that summary judgment was proper because of the discretionary function exception to liability under the Federal Tort Claims Act, and alternatively, because comparative negligence on the part of Bultema bars recovery under Ohio law. Because the discretionary function exception does not apply to the limited question of whether the prison was negligent in not giving Bultema the proper number of forms and oral instructions once he received permission to get a bottom bunk, and because there is a material question of fact regarding Bultema's comparative negligence, we reverse the decision of the district court.

Facts

After years of selling insurance, Bultema was arrested and charged with bank fraud, to which he subsequently pled guilty. As part of his sentence he was imprisoned, for the first time in his life, to serve a six month sentence at the federal minimum security prison in Elkton, Ohio.

At Elkton, Bultema was initially assigned a top bunk within Unit 1-A. The bunk beds at Elkton consist of metal frames with foam-type mattresses and have two levels — a bottom bunk that is approximately eighteen to twenty-four inches off the ground and a top bunk that is considerably higher. The bunks typically have a ladder on one end of the bed or on the side of the bunk. The bunks lack rails or guards of any kind, and inmates occasionally use "prison tools" to remove the ladders and create makeshift rails. Although the prison staff did not put rails on the beds for fear that they could be removed and used as weapons or as a means of escape, the staff did nothing to prevent the switching of the ladders.

After approximately three weeks in prison, Bultema was given a medical examination by the prison's physician's assistant, Danny Hall. During this examination, Hall issued Bultema an "Idle, Convalescent and Change in Work Classification Status" form, also known as a "bottom bunk pass." The bottom bunk pass states: "1) no climbing 2) Please allow bottom bunk (medical) while @ FCI Elkton." Apparently, although Bultema had no problem walking or playing touch football games, these conditions were given to Bultema because of his past medical history.

Bottom bunks are highly sought after at Elkton, and the prison keeps a waiting list based on seniority to facilitate the assignments of bottom bunks. However, if an inmate receives a bottom bunk pass for medical reasons, he is immediately assigned a bottom bunk, even if there are no vacant bottom bunks, because the medical bottom bunk pass takes priority over those who were assigned bottom bunks from the seniority list.

Typically, the medical staff would complete the pass in quadruplicate. One copy would be placed in his medical file, one copy would go to records for entry into the prison computer system, and the prisoner would be given two copies: one to be given to unit management and the other to be kept by the prisoner for his records. Once an inmate received a bottom bunk pass, he would be told to alert the prison unit management that he had received a bottom bunk pass. Usually, the inmate would then quickly take the copy to unit management, and a new bunk would be assigned.

Bultema claims that he only received one copy of the bottom bunk pass from Hall, the pink copy, and that he put it among his things for safekeeping.¹ He alleges that because no one gave him contrary instructions, he assumed that prison officials would be notified of the change in his status without any affirmative action on his part, and that he would be changing bunks soon. Since Bultema did not tell unit management about his bottom bunk pass, Janel Fitzgerald, his Unit A-1 counselor, who was in charge of bunk changes, was not notified before the accident that she needed to reassign Bultema's bunk.

In the meantime, Fitzgerald was made aware of some difficulties Bultema was having with his bunk. After many sleepless nights on his mattress, which had a downward tilt toward the wall, Bultema asked Fitzgerald about the possibility of receiving a new mattress. Fitzgerald informed him that there were currently no spare mattresses, but that she would try and get him one. Fitzgerald claims that Bultema told her that he did not wish to switch top bunk beds to correct the mattress problem because he did not want to lose his bunkmate. Bultema denies this assertion.

At this point, Bultema, with the help of other inmates, apparently took matters into his own hands, and on April 1, 1998, he switched the mattress on his bunk with that of a mattress from an apparently empty bunk. That evening, Bultema settled into his new bunk and went to sleep. About 2:30 a.m., Bultema awoke on the floor after having fallen off of his bed. His knee hit the cement floor and was seriously injured.

After his release from prison, Bultema filed a personal injury claim against the Federal Bureau of Prisons under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. He alleges that the United States was negligent in a number of respects. The United States filed a motion for summary judgment on the basis of the discretionary function exception to the FTCA and Bultema's comparative negligence. The district court granted this motion. See Bultema v. United States, 195 F.Supp.2d 1001 (N.D.Ohio 2002). Bultema filed a timely notice of appeal.

Discussion

This court reviews a lower court's grant of summary judgment de novo. Williams v. Gen. Motors Corp., 187 F.3d 553, 560 (6th Cir.1999). The evidence should be viewed in the light most favorable to the nonmoving party, and summary judgment should only be granted where there is no genuine issue of material fact. Id. In a properly supported response to a motion for summary judgment, the nonmoving party "must show that there is, indeed, a genuine issue for trial." Hollo-way v. Brush, 220 F.3d 767, 772 (6th Cir.2000). In considering a motion for summary judgment, "[t]he judge's function ... is limited to determining whether sufficient evidence has been presented to make the issue a proper jury question, and not to judge the evidence and make findings of fact." 60 Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435-36 (6th Cir.1987).

I. Discretionary Function Exception to Federal Tort Claims Act Liability

Negligence in not directing Bultema to give a copy of his pass to unit management, if proven, would amount to negligence in following a nondiscretionary policy, and that particular negligence claim is accordingly not protected by the discretionary function exception to FTCA liability. Therefore, the district court should not have granted summary judgment to the Government. The Government relies on the discretionary function exception, which precludes tort liability on the part of the United States for

(a) Any 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.

28 U.S.C. § 2680(a).

There is a two-step test to determine whether the discretionary function exception is applicable. See United States v. Gaubert, 499 U.S. 315, 322-23, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991); Reetz v. United States, 224 F.3d 794, 795-96 (6th Cir.2000). A court first must make a "determination of whether the challenged act or omission violated a mandatory regulation or policy that allowed no judgment of choice." Rosebush v. United States, 119 F.3d 438, 441 (6th Cir.1997). The court only needs to consider the second step if the action was discretionary under the first step. Reetz, 224 F.3d at 796. Under the second step, if the conduct was of the type that Congress intended for the discretionary function exception to include, then the exception is applicable. Id. The intent of Congress was "to prevent judicial `second guessing' of legislative and administrative decisions grounded in social, economic, and political policy." Rosebush, 119 F.3d at 441 (internal quotation omitted).

Examples of exercises of discretionary functions under this analysis include a decision to institute a program of producing and exporting fertilizer, Dalehite v. United States, 346 U.S. 15, 37-38, 73 S.Ct. 956, 97 L.Ed. 1427 (1953); a decision to install a system of coastal navigational aids, Indian Towing Co. v. United States, 350 U.S. 61, 69, 76 S.Ct. 122, 100 L.Ed. 48 (1955); a Federal Aviation Administration ("FAA") policy decision to spot check airplanes rather than to inspect them in detail, United States v. S.A. Empresa de Viacao...