Calderon v. U.S.

• Decision Date: 28 July 1997
• Docket Number: No. 96-2248,96-2248
• Citation: 123 F.3d 947
• Parties: Faustino CALDERON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 947

123 F.3d 947

Faustino CALDERON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 96-2248.

United States Court of Appeals Seventh Circuit.

Argued Jan. 9, 1997.

Decided July 28, 1997.

Ralph D. Davis, Janssen, Becker, Maher & Wertz, Peoria, IL, John M. Beal (argued), Chicago, IL, for Plaintiff-Appellant.

Samuel D. Brooks (argued), Office of the U.S. Attorney, Chicago, IL, for Defendant-Appellee.

Before MANION, KANNE and EVANS, Circuit Judges.

KANNE, Circuit Judge.

Faustino Calderon and Luis Perez were cellmates at the federal correctional institution in Oxford, Wisconsin ("FCI Oxford") when Calderon provided information to the Government relating to the criminal activity of Jose Rivera--a relative of Perez. Perez subsequently learned or believed that Calderon had provided this information to the Government, and on several occasions he either threatened Calderon or extorted money from him. Fearing further reprisals, Calderon told at least four of the Bureau of Prisons ("BOP") personnel at FCI Oxford about Perez's threats. Unfortunately, the prison personnel took no steps to protect Calderon or to discipline Perez.

On January 13, 1993, as Calderon was preparing to take a shower, Perez attacked Calderon with a homemade razor knife causing serious injury to Calderon. As a result of this attack, Calderon's ear was severed and he suffered numerous other cuts about his head and shoulders. Calderon was taken to a hospital, where his ear was reattached and he received over 100 stitches.

In February, 1994, Calderon filed an administrative claim based on this incident with the prison authorities, which the BOP subsequently denied. In January of 1995, Calderon filed a civil complaint in federal district court pursuant to the Federal Torts Claim Act ("FTCA"), alleging that the Government was negligent in failing to prevent the attack by his former cellmate. The Government moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), and in the alternative, for summary judgment, asserting the discretionary function exception defense to the FTCA. The district court granted the Government's motion to dismiss holding that the discretionary function exception barred Calderon from asserting his claim and thus, Calderon failed to establish subject matter jurisdiction. This appeal followed. For the following reasons, we affirm the district court's decision.

ANALYSIS

Because the examination of the district court's decision to grant the Government's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) is a matter of law, we review the decision de novo. Grammatico v. United States, 109 F.3d 1198, 1201 (7th Cir.1997); Bailor v. Salvation Army, 51 F.3d 678, 684 (7th Cir.1995).

The FTCA authorizes suits against the Government for money damages "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable...." 28 U.S.C. § 1346(b). While the FTCA on its face is a "broad waiver" of sovereign immunity that provides for governmental liability commensurate with that of private parties, its waiver of immunity is far from absolute; many important classes of tort claims are excepted from the Act's coverage. Grammatico, 109 F.3d at 1200 (citing United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 2761-62, 81 L.Ed.2d 660 (1984)). At issue in the immediate case is the discretionary function exception, which provides that the FTCA shall not apply to:

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) (emphasis added). This exception "marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." Varig Airlines, 467 U.S. at 808, 104 S.Ct. at 2762. It was Congress' belief that imposing liability on the government for the discretionary acts of its employees "would seriously handicap efficient government operations." Id. at 814, 104 S.Ct. at 2765 (internal quotations omitted).

Whether the discretionary function exception bars suit against the United States in a given case depends on two factors. See Maas v. United States, 94 F.3d 291, 297 (7th Cir.1996) (citing Rothrock v. United States, 62 F.3d 196, 198 (7th Cir.1995)). First, a discretionary act must be involved. In other words, the act for which liability is sought to be imposed must involve "an element of judgment or choice." United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 1273, 113 L.Ed.2d 335 (1991) (internal quotations omitted); see also Rothrock, 62 F.3d at 198. Therefore, if "a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow," the discretionary function exception does not apply. Gaubert, 499 U.S. at 322, 111 S.Ct. at 1273. Second, "even assuming the challenged conduct involves an element of judgment, it remains to be decided whether that judgment is of the kind that the discretionary function exception was designed to shield." Id. "Because the purpose of this exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy ..., the exception protects only governmental actions and decisions based on considerations of public policy." Id. at 323, 111 S.Ct. at 1273; see also Maas, 94 F.3d at 296; Rothrock, 62 F.3d at 198.

In order to determine whether the BOP's decision not to separate Calderon and Perez involved a discretionary act, we must examine the statutes and regulations which govern the BOP's decision to discipline, or not to discipline, federal inmates. Central to this issue is 28 C.F.R. § 541, which is labeled "Inmate Discipline and Special Housing Units." This federal regulation assists in establishing the specific disciplinary procedures for addressing inmate misconduct and provides in relevant part as follows:

§ 541.10 Purpose and Scope.

(a) So that inmates may live in a safe and orderly environment, it is necessary for institution authorities to impose discipline on those inmates whose behavior is not in compliance with Bureau of Prisons rules. The provisions of this rule apply to all persons committed to the care, custody, and control ... of the Bureau of Prisons.

(b) The following general principles apply in every disciplinary action taken:

...

(2) Staff shall take disciplinary action at such times and to the degree necessary to regulate an inmate's behavior within the Bureau rules and institution guidelines and to promote a safe and orderly institution environment.

28 C.F.R. § 541.10 (emphasis added). Next, § 541.13 sets forth the prohibited acts by inmates for which disciplinary action must be taken. Among these prohibited acts are: "[t]hreatening another with bodily harm or any other offense", id. § 541.13, table 3, code 203, and "[e]xtortion," id. § 541.13, table 3, code 204. And finally, § 541.14 requires that "when [the] staff witnesses or has reasonable belief that a violation of Bureau regulations has been committed by an inmate, and when staff considers informal resolution of the incident inappropriate or unsuccessful, staff shall prepare an Incident Report and promptly forward it to the appropriate Lieutenant." Id. § 541.14(a) (emphasis added).

In the present case, none of the federal regulations cited above set forth a mandatory, non-discretionary disciplinary action which the BOP was required to take against Perez prior to his attack on Calderon. To the contrary, the cited regulations clearly give the BOP room for judgment in determining whether to sanction Perez. For example, § 541.10 does not specify any particular type of conduct BOP personnel are required to take with respect to inmate discipline. On the other hand, § 541.14 may require the BOP to issue an incident report--which may ultimately lead to the imposition of a sanction under § 541.13. Such action is required, however, only when 1) the BOP personnel witness or have a reasonable belief that a BOP regulation violation has occurred; and 2) the BOP personnel determine that informal resolution is inappropriate. Thus, the decision whether a reasonable belief is present and whether to institute formal disciplinary procedures is left to the BOP's discretion. ¹ Cf. Pooler v. United States, 787 F.2d 868, 871 (3d Cir.1986) (quoting Gray v. Bell, 712 F.2d 490, 513 (D.C.Cir.1983)) ("Prosecutorial decisions as to whether, when, and against whom to initiate prosecution are quintessential examples of governmental discretion in enforcing the criminal law, and, accordingly, courts have uniformly found them to be...