Cannon v. U.S.

• Decision Date: 01 April 1981
• Docket Number: No. 79-1762,79-1762
• Citation: 645 F.2d 1128,207 U.S. App. D.C. 203
• Parties: Larry CANNON, Appellant, v. UNITED STATES of America.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1128

645 F.2d 1128

207 U.S.App.D.C. 203

Larry CANNON, Appellant, v. UNITED STATES of America.

No. 79-1762.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 9, 1980.

Decided April 1, 1981.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 77-0841).

James A. McKowen ^*, with whom Michael E. Geltner (appointed by this Court) and Larry J. Ritchie, Washington, D. C., were on the brief for appellant.

Robert C. Seldon, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry and Michael W. Farrell, Asst. U. S. Attys., Washington, D. C., were on the brief for appellee. Martha P. Rogers, Asst. U. S. Atty., Washington, D. C., also entered an appearance for appellee.

Before ROBINSON, MacKINNON and WALD, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

Society sends convicted men and women to prison to punish them through loss of liberty and deprivation of the comforts of life, to rehabilitate them, and to keep them out of the community until such time as they can live by its rules. It does not and should not send them to prison to be beaten, maimed, savaged, even killed, by their fellow inmates. Excessive failure on the part of prison officials to protect inmates from such assaults, leading to a virtual "reign ( ) ... (of) terror," has been justifiably held to constitute its own form of cruel and unusual punishment, forbidden by the eighth amendment. ¹ But, unfortunately, sporadic outbreaks of violence have historically been associated with prison settings. ² Courts This case arises from an assault by one (or more) inmates upon another inmate at Lorton Reformatory. ⁵ The plaintiff, Larry Cannon, was stabbed and beaten by an unknown assailant(s) while attending an unsupervised gathering in the prison gymnasium. Contending that the attack would not have taken place but for the prison officials' negligent failure to provide appropriate security, appellant sued the United States for damages under the Federal Tort Claims Act ("Act" or "FTCA"), 28 U.S.C. § 2671 et seq. The Government moved before trial to dismiss the case on the ground that Lorton Reformatory is not a federal agency as defined by the Act, and therefore that the United States cannot be found liable for any negligence on the part of Lorton's officials. This motion was denied by the judge initially assigned to the case. Cannon v. United States, No. 77-0841 (D.D.C., May 17, 1978) (order denying motion to dismiss); Record on Appeal ("R.") 14. After a three day trial before a different judge the district court held for the United States on the merits, finding both that the prison officials had not been negligent and that Cannon had "assumed the risk" of his injuries. Cannon now appeals from this unfavorable judgment. The Government both defends the trial judge's findings and asserts that the initial denial of its motion to dismiss was in error.

have traditionally stepped in to afford protective relief only when the level of violence reached unreasonable proportions ³ or to grant redress when a plaintiff showed a direct relationship between his injury and the negligence of prison officials. ⁴

We hold for the Government on the second ground. The motion to dismiss should have been granted because the FTCA does not render the United States liable for the negligent actions of Lorton prison officials. Since we so hold, we need express no view on the correctness of the court's rulings on the negligence and "assumption of risk" issues.

I. THE FACTS

Cannon was tried and convicted in the United States District Court for the District of Columbia in 1969 of two counts of robbery and one count of assault with intent to commit rape. ⁶ Initially incarcerated in federal penitentiaries located in Terre Haute, Indiana, and Atlanta, Georgia, Cannon was transferred to Lorton Reformatory in 1972. ⁷

On June 5, 1974, Cannon, along with approximately 75 other inmates, attended a meeting held in Lorton's gymnasium to discuss

                their grievances and the possibility of a prison strike.  8  The meeting had not been authorized by prison officials, but rather had been called by the leaders of two rival prisoners' groups.  9  No guards were posted inside the gymnasium during the meeting.  Cannon, a leader of a third prisoners' group called the ALERTS, actively participated in this discussion.  After one particularly vigorous exchange with another prisoner, an unknown assailant(s) hit Cannon on the head with a lead pipe and stabbed him in the chest.  Cannon spent six days in the hospital and prison infirmary recuperating from this attack; he claims it left him with permanent lung damage.  10  The gist of his negligence claim is that the prison officials knew or should have known of the meeting and provided guards to ensure the safety of its participants
                

II. THE ISSUE

Cannon claims the United States is liable under the FTCA because his injuries were "caused by the negligent or wrongful act or omission of an( ) employee of the Government." 28 U.S.C. § 1346(b). Section 2671 of Title 28 U.S.C. defines an "employee of the Government" to include:

officers or employees of any federal agency, members of the military or naval forces of the United States, and persons acting on behalf of a federal agency in an official capacity(.)

(Emphasis supplied.) The same provision defines "federal agenc(ies)" as:

the executive departments and independent establishment of the United States, and corporations primarily acting as instrumentalities or agencies of the United States but does not include any contractor with the United States.

(Emphasis supplied.)

Cannon contends both (1) that Lorton Reformatory is an agency of the United States, as well as of the District of Columbia, and (2) that its employees, in any case, are "persons acting on behalf of a federal agency in an official capacity" when they undertake to supervise federal prisoners who have been committed to the legal custody of the Attorney General. The Government argues that Lorton, like the Nueces County jail in Logue v. United States, 412 U.S. 521, 93 S.Ct. 2215, 37 L.Ed.2d 121 (1973), is sufficiently outside the sphere of direct federal control that it must be considered an independent contractor with the United States for the purposes of the FTCA. The Government contends that the statutory delegation of day-to-day control of Lorton to District authorities in 24 D.C.Code § 442 renders Lorton an independent contractor (or its functional equivalent) with the federal government for the purpose of caring for federal prisoners housed there, and thus precludes federal liability for torts occasioned in the performance of that duty.

In denying the Government's motion to dismiss the claim for lack of jurisdiction, the district court found it "irrelevant that the District of Columbia Department of Corrections has charge of the actual management and regulation of the Lorton Reformatory" as the "defendant was committed to the custody of the Attorney General

pursuant to D.C.Code § 24-425." Cannon v. United States, No. 77-0841 (D.D.C., May 17, 1978) (order denying motion to dismiss); R. 14. In doing so, it relied on a prior opinion of this court, Close v. United States, 397 F.2d 686 (D.C.Cir.1968), which held that a federal prisoner temporarily lodged in the District of Columbia Jail could sue under the Act for injuries due to the negligence of his jailers.

III. ANALYSIS

A. The Contractor Exception to the FTCA

1. The Scope of the Exception

The alternate theories on which Cannon's FTCA suit depends are that Lorton is a federal agency or that its employees were acting, with respect to Cannon, on behalf of a federal agency. Both fall if we conclude Lorton was a contractor with the United States or its functional equivalent under the applicable statutes.

In Logue v. United States, 412 U.S. 521, 93 S.Ct. 2215, 37 L.Ed.2d 121 (1973), the parents of a federal pretrial detainee who committed suicide while lodged in a county jail pursuant to a contract between the Bureau and the county sued the federal government for damages under the FTCA. ¹¹ Like Cannon, they alleged that either the Nueces County jail was an agency of the United States or that the employees of that jail were "acting on behalf of" the federal government. 412 U.S. at 526, 93 S.Ct. at 2218.

The Court rejected both claims. ¹² It held first that the jail could not be an agency of the federal government because it fell within the " 'contractor' exemption from the definition of 'Federal agency' in § 2671." Id. The Court then considered the argument advanced by the judges of the Court of Appeals who had dissented from the denial of rehearing en banc ¹³ that "even though the sheriffs' employees might not be 'employees' of a federal agency, they might nonetheless be 'acting on behalf of a Federal agency in an official capacity(.)' " 412 U.S. at 530, 93 S.Ct. at 2220. Reasoning that "since it would be a rare situation indeed" in which an independent contractor would not be performing tasks that could be performed by a salaried federal employee, the Court found that reading the clause to render the government liable for the activities of any person assuming the statutory obligations of the United States would make the contractor exception "meaningless." Id. at 531-32, 93 S.Ct. at 2221. Therefore, the Court concluded, after surveying the relevant committee hearings, that the language is "designed to cover special situations such as the 'dollar-a-year' man ... or an employee of another employer who is placed under direct supervision of a federal agency(.)" Id. at 531, 93 S.Ct. at 2221. In sum, Logue says that the federal government cannot be held liable for the torts of employees of an independent contractor jailer whether that liability is predicated on the "agency" or "acting on behalf of" language in the FTCA.

2. The Definition of a "Contr...