Coulthurst v. U.S.

• Decision Date: 01 August 1998
• Docket Number: Docket No. 98-2860
• Citation: 214 F.3d 106
• Parties: (2nd Cir. 2000) DORRELL R. COULTHURST, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee
• Court: U.S. Court of Appeals — Second Circuit

Page 106

214 F.3d 106 (2nd Cir. 2000)

DORRELL R. COULTHURST, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee.

Docket No. 98-2860

August Term, 1998

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Submitted: June 11, 1999

Decided: May 31, 2000

Appeal from a judgment of the United States District Court for the District of Connecticut (Squatrito, J.) dismissing for lack of jurisdiction tort suit brought by federal prisoner against the United States, on the grounds that the discretionary function exception ("DFE") to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2680(a), shields the government from liability for the conduct alleged by the plaintiff. The Court of Appeals (Leval, J.) holds that the plaintiff's complaint fairly alleges conduct which, if proven, falls outside the area protected by the DFE.

Vacated and Remanded.

PETER H. SCHUCK, New York, NY (James J. Park, Law Student Intern, New Haven, CT, on the brief) for Plaintiff.

DAVID X. SULLIVAN, Assistant United States Attorney, New Haven, CT (Stephen C. Robinson, United States Attorney, District of Connecticut, and Jonathan B. Pitt, Law Student Intern, on the brief) for Defendant.

Before: LEVAL and SOTOMAYOR, Circuit Judges, and POLLACK, District Judge.^*.

Leval, Judge:

Plaintiff Dorrell R. Coulthurst is a federal prisoner who was incarcerated at the Federal Corrections Institute in Danbury, Connecticut ("FCI-Danbury") during the events that are the subject of this action. On October 9, 1992, Coulthurst suffered injuries to his shoulders, neck, and back while lifting weights in the prison gymnasium, when a cable snapped on a lateral pulldown machine. Coulthurst brought suit against the United States under the Federal Tort Claims Act seeking to recover damages for his injuries caused by the government's negligence in maintenance of the weight room. The United States District Court for the District of Connecticut (Dominic J. Squatrito, Judge) granted the government's motion to dismiss his complaint for lack of subject matter jurisdiction, on the ground that, pursuant to the discretionary function exception ("DFE") to the FTCA, the United States is immune from suit for the type of conduct alleged in the complaint. Plaintiff appeals, arguing that the complaint can fairly be read to allege conduct which falls outside the scope of the DFE. We agree with the plaintiff that the complaint encompasses conduct which, if proven, falls outside the scope of the DFE and that dismissal based on the allegations of the complaint was, therefore, inappropriate. We accordingly vacate the district court's dismissal and remand the matter to the district court for further proceedings.

BACKGROUND

In October 1992, plaintiff was a federal prisoner, serving a felony sentence at FCI-Danbury. According to the allegations of his complaint, at approximately 7 PM on October 9, he was lifting weights in the prison exercise room, performing "pull downs" on a lateral pulldown machine. The cable connecting the steel pull-down bar to the weights snapped, bringing the bar down onto his shoulders and neck with approximately 270 pounds of force. As a result of the incident, he suffered a torn rotator cuff in his left shoulder and various injuries to his back and neck.

Guidelines promulgated by the Bureau of Prisons require prison officials to "[v]isit the inmate wellness area (if there is one) and determine if the equipment is arranged in a safe manner and if participants use the equipment properly." U.S. Dep't of Justice, Federal Bureau of Prisons, Operations Memorandum: Program Review Guidelines for Education/Recreation Services (July 31, 1992), Guideline 4.3.2, at 22. The pertinent Guidelines contain no instructions as to the method to be followed in inspecting the machine that caused the injury or the frequency of inspections. The evidence placed before the court on the government's motion to dismiss included no information whether the person assigned to conduct the inspection received any instructions as to what procedures should be followed in conducting the inspection or as to frequency of inspection. Records introduced by the defendant included an inspection log bearing initials purporting to indicate that an inspection of the exercise room had been conducted two days prior to Coulthurst's injury.

The complaint seeks damages, alleging that Coulthurst's injuries were caused by the defendant's "negligence and carelessness" in that the defendant "failed to diligently and periodically inspect the weight equipment, and the cable" (Compl. ¶¶ 6(a)-(b)) and "failed to replace the cable after undue wear and tear" (Id. ¶ 6(c)). Plaintiff's right to recover was premised on the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq. The defendant moved to dismiss for lack of subject matter jurisdiction on the ground that the DFE barred recovery for the alleged conduct, even if government negligence could be established. The district court granted the defendant's motion and dismissed the case by Memorandum Opinion and Order dated July 31, 1998.

Plaintiff appealed the dismissal to this court. The matter was submitted to this panel on June 11, 1999. By order dated July 22, 1999, we appointed counsel to represent the plaintiff and ordered additional briefing.

DISCUSSION

Under traditional principles of sovereign immunity, the United States is immune from suit except to the extent the government has waived its immunity. In 1946, Congress adopted the FTCA which, subject to numerous exceptions, waives the sovereign immunity of the federal government for claims based on the negligence of its employees. See 28 U.S.C. §§ 1346(b), 2671 et seq. In relevant part, the FTCA, 28 U.S.C. §1346(b)(1), authorizes suits against the government to recover 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 to the claimant in accordance with the law of the place where the act or omission occurred.

A significant limitation on the waiver of immunity provided by the Act is the exception known as the DFE, 28 U.S.C. § 2680(a), which provides that Congress's authorization to sue the United States for damages

shall not apply to . . . [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 . . . an employee of the Government, whether or not the discretion involved be abused.

Over the last two decades, the Supreme Court has handed down a series of decisions clarifying the scope of the DFE. The Court's decisions in Berkovitz v. United States, 486 U.S. 531 (1988), and United States v. Gaubert, 499 U.S. 315 (1991), establish the framework for evaluating whether particular governmental conduct falls under the DFE. According to the Berkovitz-Gaubert test, the DFE bars suit only if two conditions are met: (1) the acts alleged to be negligent must be discretionary, in that they involve an "element of judgment or choice" and are not compelled by statute or regulation and (2) the judgment or choice in question must be grounded in "considerations of public policy" or susceptible to policy analysis. See Gaubert, 499 U.S. at 322-23; Berkovitz, 486 U.S. at 536-37.

In this case, the district court read the complaint to allege a deficiency in the scheduling and procedures for the inspection of the gym equipment. According to the district court's analysis, the acts alleged as negligent involved decisions establishing the procedures and frequency of inspection-decisions themselves involving elements of judgment or choice and a balancing of policy considerations (including inmate safety, providing sufficient recreational opportunities to inmates, and efficient resource allocation). The court therefore concluded that the government is shielded from liability for any negligence arising out of these decisions. As noted above, the relevant regulations do not mandate any particular course of inspection or the frequency of such inspections, and, thus, the officials at each prison are charged with making decisions about maintenance procedures and frequencies of inspection, balancing the relevant policy considerations in the process. Cf. Gaubert, 499 U.S. at 325 (noting that "[d]ay-to-day management . . . regularly requires judgment as to which of a range of permissible courses is the wisest" and holding that such decisions fall within the DFE); Fazi v. United States, 935 F.2d 535, 538 (2d Cir. 1991) (same). The court thus concluded that both prongs of the Gaubert test were met as to these claims, and the court therefore lacked jurisdiction.

However, the complaint is susceptible to various readings. There are numerous potential ways in which an inspector's "carelessness" may have triggered the accident. The operative words of the complaint-"negligence and carelessness" in the "fail[ure]...