Cohen v. U.S.

Decision Date26 August 1998
Docket NumberNo. 97-8737,97-8737
Citation151 F.3d 1338
Parties12 Fla. L. Weekly Fed. C 3 William COHEN, Plaintiff-Appellee, Cross-Appellant, v. UNITED STATES of America, Defendant-Appellant, Cross-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Harry Dixon, Jr., U.S. Atty., Delora L. Gratham, Asst. U.S. Atty., Savannah, GA, Richard Olderman, U.S. Dept. of Justice, Civ. Div., App. Staff, Washington, DC, for Defendant-Appellant, Cross-Appellee.

William Cohen, Boynton Beach, FL, pro se.

Allan Falk, Okemos, MI, for Plaintiff-Appellee, Cross-Appellant.

Neal G. Gale, Brunswick, GA, pro se.

Appeals from the United States District Court for the Southern District of Georgia.

Before CARNES and HULL, Circuit Judges, and HENDERSON, Senior Circuit Judge.

CARNES, Circuit Judge:

While incarcerated in a minimum security federal prison, plaintiff William Cohen was injured when he was attacked by another prisoner. He sued the United States under the Federal Tort Claims Act asserting that the Bureau of Prisons had negligently assigned his attacker to a minimum security prison. After a bench trial, the district court entered judgment for Cohen and awarded him $250,000. Because we conclude that the discretionary function exception to the Federal Tort Claims Act shields the United States from liability in this case, we reverse that judgment.


In 1991, Cohen was sentenced to eighteen months in prison for copyright violations. The Bureau of Prisons ("BOP") classified him as "security level 1," the lowest security classification in the federal correction system, and it placed him in the minimum security Community Corrections Center at the Jesup, Georgia Federal Corrections Institution. On February 8, 1992, Cohen was watching television in a common area of the prison. When Humberto Garcia, one of the other inmates, changed the channel, Cohen objected and changed the television back to its original channel. Later, after all the other inmates had left the room, Garcia picked up a metal chair and repeatedly beat Cohen on the head. As a result of Garcia's attack, Cohen underwent neurological surgery and spent three weeks in the hospital. Since his hospitalization, Cohen is unable to walk normally, suffers from severe headaches, has permanent short-term memory problems, and has lost his sense of taste and smell. After exhausting his administrative remedies, Cohen filed a claim against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., alleging that the government's negligence was responsible for his injuries. After a bench trial, the district court entered judgment in favor of Cohen, rejecting the government's arguments (1) that the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a) barred Cohen's FTCA claim and therefore deprived the district court of jurisdiction, and (2) that the BOP had not been negligent. The court awarded Cohen $250,000 in damages.

The United States appeals, challenging the district court's legal conclusion that the discretionary function exception did not apply, and its factual finding that the BOP was negligent. Cohen cross-appeals, seeking increased damages.


We review a district court's legal conclusion de novo and its fact findings for clear error. See, e.g., Lykes Bros., Inc. v. United States Army Corps of Eng'rs, 64 F.3d 630, 634 (11th Cir.1995). Whether the United States is entitled to application of the discretionary function exception to the FTCA is a question of law we review de novo. See Ochran v. United States, 117 F.3d 495, 499-500 (11th Cir.1997).


Cohen's theory of liability is that the BOP was negligent in classifying Garcia as "security level 1," the lowest security classification in the federal correction system, and placing him at the minimum security Jesup institution. According to Cohen, had Garcia been assigned a higher security level as allegedly warranted by his criminal history, Garcia's attack and Cohen's injuries would not have occurred. The Government contends that it cannot be held liable for any alleged negligence in determining Garcia's custody classification because the prisoner custody classification process performed by the BOP falls within the FTCA's discretionary function exception, 28 U.S.C. § 2680(a). Cohen first responds that the discretionary function exception does not apply to the BOP's classification of prisoners because 18 U.S.C. § 4042 establishes a non-discretionary duty of care on the part of the BOP toward prisoners which removes any discretion the BOP might otherwise have in this regard. In the alternative, Cohen argues that even if Congress did allow the BOP discretion in classifying prisoners, the BOP constrained its discretion in this regard by promulgating internal guidelines for its personnel to follow in classifying prisoners. According to Cohen, because BOP personnel did not follow those guidelines when they classified Garcia, the discretionary function exception does not apply in this case.

In addressing these contentions, we will begin by discussing the nature of the discretionary function exception and the prerequisites for its application. We will then discuss whether the BOP's classification of prisoners and placement of them in institutions meet those criteria. Finally, we will discuss whether the BOP failed to follow its own guidelines concerning the classification of prisoners with the result that the discretionary function exception is inapplicable in this case.

A. The Discretionary Function Exception

The FTCA "waives the United States government's sovereign immunity from suit in federal courts for the negligent actions of its employees." Ochran, 117 F.3d at 499. The FTCA waiver of immunity is subject to several exceptions. The discretionary function exception, which is at issue in this case, precludes government liability for "[a]ny claim 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). If the discretionary function exception applies, the FTCA claim must be dismissed for lack of subject matter jurisdiction. See, e.g., Powers v. United States, 996 F.2d 1121, 1126 (11th Cir.1993). The discretionary function 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." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 2762, 81 L.Ed.2d 660 (1984). Congress believed that imposing liability on the government for its employees' discretionary acts "would seriously handicap efficient governmental operations." Id. at 814, 104 S.Ct. at 2765 (internal citations and quotations omitted).

The Supreme Court has enunciated a two-part test for determining whether the discretionary function exception bars suit against the United States in a given case. See Ochran, 117 F.3d at 499. First, "we consider the nature of the conduct and determine whether it involves 'an element of judgment or choice.' " Id. (quoting United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 1273, 113 L.Ed.2d 335 (1991)). "Government conduct does not involve an element of judgment or choice, and thus is not discretionary, if 'a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow, because the employee has no rightful option but to adhere to the directive.' " Id. (quoting Gaubert, 499 U.S. at 322, 111 S.Ct. at 1273 (internal citations and quotations omitted)).

Second, "if the conduct at issue involves the exercise of judgment, we must determine whether that judgment is grounded in considerations of public policy." Id. "[T]he purpose of the exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." Gaubert, 499 U.S. at 323, 111 S.Ct. at 1273 (internal quotations and citations omitted). "In making this determination, we do not focus on the subjective intent of the government employee or inquire whether the employee actually weighed social, economic, and political policy considerations before acting." Ochran, 117 F.3d at 500. Instead, we "focus on the nature of the actions taken and on whether they are susceptible to policy analysis." Gaubert, 499 U.S. at 325, 111 S.Ct. at 1275.

B. Whether the BOP's Classification of Prisoners and Placement of Them in Institutions Involves Conduct

or Decisions That Fall Within the

Discretionary Function Exception

In determining whether the discretionary function exception applies in this case, we first address whether the BOP's decisions concerning classification of prisoners and what institution to place them in "involve[ ] an element of judgment or choice." Gaubert, 499 U.S. at 322, 111 S.Ct. at 1273. Cohen contends that the BOP's decisions in this regard do not meet this first prong of the two-part discretionary function exception test. In support of his contention, Cohen points to 18 U.S.C. § 4042, which provides in relevant part that "[t]he Bureau of Prisons, under the direction of the Attorney General, shall ... provide for the safekeeping, care, and ... protection ... of all persons charged with or convicted of offenses against the United States." He contends that this language establishes a non-discretionary duty of care toward prisoners. In particular, Cohen argues that the § 4042 duty of care applies to the BOP's decisions concerning prisoner custody classification and thus removes cases, such as this one, where one prisoner assaults another, from the discretionary function exception. Under Cohen's theory, the BOP violated its § 4042 duty...

To continue reading

Request your trial
187 cases
  • Polidoro v. Saluti
    • United States
    • U.S. District Court — District of New Jersey
    • 4 Diciembre 2015
    ...function exception to the FTCA, if penal institutions are to have the flexibility to operate.") (citing Cohen v. United States, 151 F.3d 1338, 1344 (11th Cir. 1998) and Calderon v. United States, 123 F.3d 947, 949-50 (7th Cir. 1997)); Huff v. Neal, 555 F. App'x 289, 298-99 n.9 (5th Cir. 201......
  • Willis v. Lappin
    • United States
    • U.S. District Court — Eastern District of California
    • 16 Octubre 2012
    ...and does not preclude the BOP from exercising judgment in the manner in which it chooses to fulfill that duty. See Cohen v. United States, 151 F.3d 1338, 1342 (11th Cir.1998); see also Calderon v. United States, 123 F.3d 947, 950-51 (7th Cir.1997); Graham v. United States, 2002 WL 188573, a......
  • Sledge v. USA
    • United States
    • U.S. District Court — District of Columbia
    • 13 Julio 2010
    ...such decisions [regarding inmate protection] are inherently grounded in social, political, and economic policy.”); Cohen v. United States, 151 F.3d 1338, 1344 (11th Cir.1998) (vacating judgment after bench trial and dismissing case because “[d]eciding how to classify prisoners and choosing ......
  • Levine v. Apker
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 10 Julio 2006
    ...general breadth of discretion afforded to the BOP, McCarthy, 146 F.3d at 123, they need not be exclusive. Accord Cohen v. United States, 151 F.3d 1338, 1343 (11th Cir.1998) (interpreting § 3621(b) as giving "the BOP ample room for judgment by listing a non-exhaustive set of factors for the ......
  • Request a trial to view additional results
2 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT