Fleishour v. United States

• Decision Date: 07 July 1966
• Docket Number: No. 15433.,15433.
• Citation: 365 F.2d 126
• Parties: Clinton Martin FLEISHOUR, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

365 F.2d 126 (1966)

Clinton Martin FLEISHOUR, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 15433.

United States Court of Appeals Seventh Circuit.

July 7, 1966.

Elmer Gertz, Sidney Z. Karasik, Chicago, Ill., for appellant.

Edward V. Hanrahan, U. S. Atty., John Peter Lulinski, Lawrence Jay Weiner, Thomas W. James, Asst. U. S. Attys., Chicago, Ill., Alan S. Rosenthal, Richard S. Salzman, Dept. of Justice, Washington, D. C., John W. Douglas, Asst. Atty. Gen., for appellee.

Before HASTINGS, Chief Judge, KNOCH, Circuit Judge, and GRUBB, District Judge.

KNOCH, Circuit Judge.

The plaintiff-appellant, Clinton Martin Fleishour, sued under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2674, to recover damages for personal injuries arising out of an incident at McNeil Island, Washington, a federal penitentiary, when he was assaulted and battered by a fellow prisoner, Troy Lee Stringfellow. The case was tried on the severed issue of liability alone.

The plaintiff's position is that the government was charged with the duty of providing him with suitable quarters, care and protection from assaults of other prisoners, and that the government was negligent in failing to prevent injury to him. The plaintiff argues that the government was well aware of the danger as Stringfellow had a long record of misconduct in the comparatively unrestricted reformatory at Lampoc, California, from which he and the plaintiff were transferred to the medium security of McNeil Island. The plaintiff contends that despite the warnings of Stringfellow's violent proclivities, the government was negligent in the manner of housing the transferrees in the Admissions and Orientation building, where they were kept from arrival on December 13th to December 15/16, 1960, the night of the assault. The sleeping area in that building includes a dormitory with two rows of beds on the first floor, and three floors above which each contain a cell block of 20 individual cells. On the night of the assault the number of prisoners exceeded the number of individual cells. About 40 prisoners, including plaintiff and Stringfellow, were assigned to the dormitory room.

At about 2:30 a. m. Stringfellow struck the sleeping plaintiff with a fire extinguisher, which had been on the wall of the dormitory, inflicting serious injury. At this time, the Senior Correctional Officer, responsible for supervision of the three cell blocks and the dormitory floor, was sorting mail at his station desk on the floor above the dormitory. He came down to investigate the noise and found Stringfellow being restrained by a fellow inmate. The plaintiff was on the floor bleeding profusely.

The government contends (inter alia) that jurisdiction under the Federal Tort Claims Act was lacking because the action was based on an exercise of a discretionary function involving a decision that on transfer to a new place of confinement, federal prisoners will be treated as having a "clean slate" and not be placed in solitary confinement for disciplinary infractions committed at the institution from which they have been removed.

The District Judge concluded that the Complaint was not addressed merely to high level policy decisions but dealt with such "operational" level questions as adequate guarding or supervision and the presence of a fire extinguisher in the room.

It is agreed that the test of government liability under the Act turns on "whether a private individual under like circumstances should be liable under state law." United States v. Muniz, 1963, 374 U.S. 150, 153, 83 S.Ct. 1850, 1853, 10 L.Ed.2d 805. The issue of negligence is governed by the law of the State of Washington where the alleged negligence occurred. Stewart v. United States, 7 Cir., 1951, 186 F.2d 627, 630, cert....