Davis v. U.S.

• Court: U.S. District Court — Northern District of Texas
• Writing for the Court: Buchmeyer
• Citation: Davis v. U.S., 474 F.Supp.2d 829 (N.D. Tex. 2007)
• Decision Date: 16 February 2007
• Docket Number: No. C.A. 3:03-CV-0415-R ECF.,C.A. 3:03-CV-0415-R ECF.
• Parties: Donna Gail DAVIS, Plaintiff, v. UNITED STATES of America, Defendant.

474 F.Supp.2d 829

Donna Gail DAVIS, Plaintiff, v. UNITED STATES of America, Defendant.

No. C.A. 3:03-CV-0415-R ECF.

United States District Court, N.D. Texas, Dallas Division.

February 16, 2007.

Frank P. Colosi, Law Office of Frank P. Colosi, Fort Worth, TX, for Plaintiff.

Frank Dounell Able, US Attorney's Office, Dallas, TX, for Defendant.

MEMORANDUM OPINION AND ORDER

BUCHMEYER, Senior District Judge.

Now before the Court is Defendant United States of America's Motion for Summary Judgment and Brief in Support (Dkt.Nos.35-37). After carefully considering the motion, Plaintiffs response, the summary judgment evidence, and the applicable law, the Court DENIES Defendant's motion in its entirety.

I. BACKGROUND

The facts, construed in the light most favorable to Plaintiff, are these. Davis, an inmate in the Federal Medical Center-Carswell, was sexually assaulted by Officer Steven Suarez, a prison guard. Suarez and Davis began an inappropriate relationship after she arrived at Carswell in January 1999. One day in March 1999, during the early morning hours, Suarez woke Davis and escorted her to a noise-filled mechanical room. Once there, he closed the door and gave her a choice; she could either have vaginal or oral intercourse with him. Given this choice, she performed oral intercourse on him.

Prior to that early morning assault, Davis had several private meetings with Suarez. In these private meetings, Suarez fondled her breasts, kissed and hugged her, and placed his hand on her vagina. Davis rebuked Suarez's advances on each occasion.

In his pursuit of Davis, Suarez received the assistance of other guards at the prison, specifically Officers Darlene P. Brown and Richard L. Williams. On two separate occasions, much like the morning of the sexual assault, Brown and Williams delivered Davis to Suarez at his request. Both incidents took place in the early morning hours, and on both occasions the officers violated prison regulations by transferring Davis from her unit without permission from the Lieutenant. In early March 1999, Brown responded to a request from Suarez to deliver Davis to his unit. Brown retrieved Davis from her room after the guards had finished the nightly midnight count of prisoners. Brown took her to Suarez in an adjacent unit. Davis was with Suarez for about one hour and thirty minutes. Brown did not monitor the meeting with Davis or report the incident. Also in early March 1999, Williams responded to another request from Suarez. Williams allowed Suarez to enter Davis's unit and room after midnight count, wake Davis, and take her to another unit. Suarez kept Davis for about an hour. Williams did not monitor Davis or make any report of the incident.

Not surprisingly, when Suarez sexually assaulted Davis in the mechanical room in early March, he used the same tactics to get Davis out of her unit. He woke her after the midnight count and escorted her away from her unit. No guard at Carswell reported Suarez's breaches of prison regulations or the unique activities he pursued with Davis after the midnight count.

The report of unusual activity instead came on March 10, 1999, from Tavia Crumpler. Crumpler, a corrective therapist, spotted Suarez in the physical therapy area. She asked him what he was doing. Suarez responded that he was "hiding out" in the area during a heavy rain. Crumpler checked outside to see that the weather had cleared and told Suarez that the rain had stopped. Crumpler heard Suarez tell' Davis, who was in the area at the time, "Thanks for the company." Then Suarez walked into the hallway and called for Davis. Although Crumpler could not hear their conversation and witnessed no inappropriate touching between Suarez and Davis, Crumpler contacted a BOP investigator to report what she had seen.

Crumpler's report led to an investigation. As a result of the investigation, Officers Brown and Williams resigned from their jobs for violating policy when they transferred Davis to Suarez after the midnight count. Suarez not only resigned his post, he was charged and convicted of sexual abuse of a ward.

II. DISCUSSION

Summary judgment under Rule 56(c) of the Federal Rules of Civil Procedure is appropriate when there is no genuine issue as to any material fact in the case and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Melton v. Teachers Ins. & Annuity Ass'n of Am., 114 F.3d 557, 559 (5th Cir.1997). The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Calbillo v. Cavender Oldsmobile, 288 F.3d 721, 725 (5th Cir.2002). The evidence of the nonmovant must be believed and all justifiable inferences must be drawn in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Davis filed suit against the United States under the Federal Tort Claims Act (FTCA) alleging that several employees of the BOP, in the course and scope of their employment, neglected their duty to either intercede in or simply report their repeated observations of Suarez's inappropriate relationship with Davis. Davis alleges that the negligence of these BOP employees proximately caused her injuries at the hands of Suarez. The United States seeks summary judgment on Davis's claims because (1) the selection and supervision of prison employees is a discretionary function exempted from the liability imposed on the federal government by the Tort Claims Act, (2) Suarez was not performing the duties of his employment when he sexually assaulted Davis, and (3) the relationship between Suarez and Davis was secretive and prevented BOP staff from foreseeing Davis's ultimate injury.

Davis argues that summary judgment is inappropriate because BOP employees, acting in furtherance of their job duties, negligently facilitated Suarez's meetings with Davis and failed to report his unusual relationship with her, making the sexual assault foreseeable. Davis does not claim that the United States' liability rests on the intentional tort committed by Suarez, but on the negligence of employees who could have foreseen that their actions proximately caused the ultimate assault.

A. The Federal Tort Claims Act

Generally, the United States is immune from suit. But the FTCA carves out particular circumstances in which the United States waives its immunity. One instance in which the United States waives immunity is when a person brings a negligence action against the government based on acts or omissions of its employees while the employees are acting within the scope of their offices or employment. 28 U.S.C. § 1346(b). On the other hand, the FTCA does not waive governmental immunity for intentional acts committed by its employees. 28 U.S.C. § 2680(h).

When determining liability under the FTCA, the courts must apply state substantive law. 28 U.S.C. § 1346(b); Garcia v. United. States, 62 F.3d 126, 127 (5th Cir.1995). Therefore, this Court reviews Davis's claims against the United States according to Texas tort law, deciding whether Davis has sufficiently demonstrated a genuine issue of material fact that (1) BOP employees were negligent, (2) in the scope of their employment, and (3) the negligent acts proximately caused Davis's injury.

B. Officers Brown and Williams were acting in the course of their employment with the BOP.

Employees act in the course and scope of their employment if their actions are (1) within the general authority given to them, (2) in the furtherance of the employer's business, and (3) for the accomplishment of the object for which the employees were employed. Green v. Ransor, Inc., 175 S.W.3d 513, 516 (Tex.App.-Fort Worth 2005, no writ). However, when an employee turns away from the advancement of the employer's work to engage in wholly personal pursuits, the employee is no longer acting on behalf of the employer in the scope of employment. Mackey v. U.P. Enters., Inc., 935 S.W.2d 446, 453 (Tex.App.-Tyler 1996, no writ).

Therefore, when a prison guard turns from the duties of the job to violate BOP policy and the law by intentionally raping an inmate, the government is not liable for his intentional, criminal actions. See Shirley v. United States, 2006 WL 708651, *3 (N.D.Tex.2006). But when one government employee's negligence allows another government employee to commit an intentional tort, the courts have found liability not for the intentional tort, but for the negligence that precipitated the intentional tort. Downey v. Denton County, 119 F.3d 381, 387 (5th Cir.1997) (upholding liability of government when a guard escorted a prisoner to a room and left her there with a male guard for one hour and 45 minutes and the inmate was raped as a result); see also Quinn v. Mem'l Med. Ctr., 764 S.W.2d 915, 917-18 (Tex.App.-Corpus Christi 1989, no writ) (overturning summary judgment against plaintiff injured by doctor's administration of abortion drug where government pharmacist dispensed abortion drug to doctor even though doctor did not give the name of the patient and doctor was not allowed to write prescriptions beyond those for patients in that particular hospital).

Davis does not bring her suit alleging governmental liability for the intentional actions of Suarez. Instead, Davis alleges that Officers Brown and Williams, acting in the scope of their employment with the BOP, proximately caused her injuries. Brown and Williams did not venture from their job duties for their own personal pursuits when they, on Suarez's request, escorted Davis to Suarez's unit. They were acting as prison guards, doing what prison guards often do. Escorting prisoners from one unit to another was an...