Keller v. United States

• Decision Date: 17 November 2014
• Docket Number: No. 13–3113.,13–3113.
• Citation: 771 F.3d 1021
• Parties: Charles D. KELLER, Plaintiff–Appellant, v. UNITED STATES of America, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

771 F.3d 1021

Charles D. KELLER, Plaintiff–Appellant

v.UNITED STATES of America, Defendant–Appellee.

No. 13–3113.

United States Court of Appeals, Seventh Circuit.

Submitted May 23, 2014.^*

Decided Nov. 17, 2014.

Charles D. Keller, United States Penitentiary I, Coleman, FL, for Plaintiff–Appellant.

Jeffrey L. Hunter, Attorney, Office of the United States Attorney, Indianapolis, IN, for Defendant–Appellee.

Before WILLIAMS, TINDER, and HAMILTON, Circuit Judges.

Opinion

HAMILTON, Circuit Judge.

Plaintiff Charles D. Keller, a federal prisoner, has sued the federal government to recover damages for an assault by another prisoner that he suffered in the United States Penitentiary in Terre Haute, Indiana. Keller appeals from a grant of summary judgment in the government's favor, so we must consider the evidence in the light most favorable to him and draw all reasonable inferences in his favor. Parrott v. United States, 536 F.3d 629, 630–31 (7th Cir.2008). Accordingly, we must assume the facts are as stated in this opinion, but without vouching for their objective truth.

When Keller was admitted to the Terre Haute facility, he told the intake psychologist, Dr. Joseph Bleier, that he suffered from mental illness that affected his ability to function and feared that he would be attacked if he were placed in the general prison population. Dr. Bleier nevertheless placed Keller in the general population. While on his way to lunch on October 25, 2007, Keller was attacked by another inmate without provocation. The attack lasted several minutes without intervention by guards. Keller was beaten brutally and left lying unconscious in the prison yard. The attack occurred at the base of prison watchtower 7, which stands at the boundary between Units 1 and 2 of the prison yard. No prison guard saw the attack. Keller was eventually spotted lying face-down and unconscious on the ground. Examinations by the prison medical staff and a nearby hospital emergency room revealed extensive injuries to his face and head.

Keller filed suit against the United States under the Federal Tort Claims Act, see 28 U.S.C. § 2674, alleging that the attack resulted from the prison's negligence. He argues that several prison employees violated mandatory regulations and orders governing their conduct, thus allowing the attack to occur and continue. According to Keller, Dr. Bleier did not examine all of his available medical documents before deciding to release him into the general prison population, as required by applicable regulations. Keller also contends that the prison guards assigned to Tower 7, Unit 1, and Unit 2 failed to monitor their assigned areas of the yard because they were lazy or inattentive in violation of their post orders. The district court granted the government's motion for summary judgment based on the discretionary function exception to liability under the Act. See 28 U.S.C. § 2680(a). This appeal followed.

The Federal Tort Claims Act (FTCA) gives district courts exclusive jurisdiction over claims “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.” 28 U.S.C. § 1346(b)(1) ; see also 28 U.S.C. § 2674. Prisoners can sue under the FTCA “to recover damages from the United States Government for personal injuries sustained during confinement in a federal prison, by reason of the negligence of a government employee.”United States v. Muniz, 374 U.S. 150, 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963) ; see also, e.g., Coulthurst v. United States, 214 F.3d 106 (2d Cir.2000) (allowing prisoner to pursue FTCA claim); Bultema v. United States, 359 F.3d 379 (6th Cir.2004) (same); Gil v. Reed, 381 F.3d 649, 659 (7th Cir.2004) (same); Mackovich v. United States, 630 F.3d 1134 (8th Cir.2011) (same).

This waiver of the United States' sovereign immunity is limited by several exceptions, including the discretionary function exception codified in 28 U.S.C. § 2680(a). The exception is in the second half of a provision that states in full: “The provisions of this chapter and section 1346(b) of this title shall not apply to—(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or 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.”

Case law elaborates the scope of this discretionary function exception. Two requirements must be met. First, the act involved must be discretionary in the sense that it “involves an element of judgment or choice.” Palay v. United States, 349 F.3d 418, 427 (7th Cir.2003), quoting United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) (internal formatting omitted). This means that where an employee deviates from a course of action prescribed by federal statute, regulation or policy, the employee's acts are not immune from suit. Gaubert, 499 U.S. at 322, 111 S.Ct. 1267 ; Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988) ; Palay, 349 F.3d at 427. Second, “the exception protects only governmental actions and decisions based on considerations of public policy.” Gaubert, 499 U.S. at 322, 111 S.Ct. 1267 ; Palay, 349 F.3d at 427–28 ; Calderon v. United States, 123 F.3d 947, 949 (7th Cir.1997).

The discretionary function exception is an affirmative defense to liability under the FTCA that the government must plead and prove. Parrott v. United States, 536 F.3d 629, 634–35 (7th Cir.2008) ; Reynolds v. United States, 549 F.3d 1108, 1112 (7th Cir.2008) ; Stewart v. United States, 199 F.2d 517, 520 (7th Cir.1952) ; S.R.P. ex rel. Abunabba v. United States, 676 F.3d 329, 333 n. 2 (3d Cir.2012) (collecting cases from other circuits). To support summary judgment under the exception, the government must offer evidence that shows beyond reasonable dispute that its conduct was shielded by the exception. The district court, however, placed the burden on Keller to prove that the exception did not apply. This was a legal error that requires reversal unless the error was harmless.

The government argued in its summary judgment briefs that the discretionary function exception always shields the government from liability for inmate violence, citing our decision in Calderon v. United States, 123 F.3d 947 (7th Cir.1997). That argument substantially overstates our holding in Calderon and overlooks other cases on point. See, e.g., Parrott, 536 F.3d at 638 (reversing summary judgment based on discretionary function exception where prisoner alleged guards failed to comply with order separating him from another prisoner); Palay, 349 F.3d at 432 (reversing dismissal on pleadings based on discretionary function exception where prisoner alleged guards' negligence allowed other prisoners to beat him). “Unstated but implicit in Calderon is the assumption that prison officials in that case had taken note of the threats against the plaintiff in that case and weighed the relevant considerations in deciding how best to act (or not) in response to those threats.” Palay, 349 F.3d at 432.

By contrast, if prison officials behaved negligently without making a discretionary judgment of the type shielded by the exception, the discretionary function exception would not apply to their conduct. Id. Prison guards who “left the unit unattended in order to enjoy a cigarette or a snack,” for example, would not be covered by the exception, because they would not have made the kind of discretionary judgment that the exception is designed to protect. Id. In other words, if prison personnel violate a mandatory regulation, the exception does not apply because “there is no room for choice and the action will be contrary to policy.” Gaubert, 499 U.S. at 324, 111 S.Ct. 1267 ; see also Parrott, 536 F.3d at 638.

Here, Keller has alleged that both the intake psychologist and the prison guards assigned to monitor the relevant sections of the yard violated mandatory regulations that governed their conduct. Unlike the guards in Calderon, Keller argues, the guards and intake psychologist in this case did not exercise discretion allowed to them under applicable regulations, but rather failed to comply with mandatory regulations and orders. If that is the case, then their alleged negligence would not fall within the scope of the discretionary function exception. See Gaubert, 499 U.S. at 324, 111 S.Ct. 1267 ; Parrott, 536 F.3d at 638 ; Palay, 349 F.3d at 432.

At this stage, the record in this case presents a situation similar to Parrott v. United States, 536 F.3d 629 (7th Cir.2008). Parrott, also a federal prisoner at the Terre Haute facility, alleged that prison guards violated a mandatory separation order so that another inmate was able to attack him. We reversed summary judgment for the government because the discretionary function exception would not protect the government from liability under those circumstances. Parrott, 536 F.3d at 638. We see no reason to take a different approach in this case. We reject the government's argument that all prisoner attacks fall within the discretionary function exception.

We therefore turn to the record to determine whether the discretionary function exception applied in this case. We cannot conclude, based on the evidence in the record, that the exception necessarily shields the government from liability for...