Palay v. U.S.

• Decision Date: 12 November 2003
• Docket Number: No. 01-1112.,01-1112.
• Citation: 349 F.3d 418
• Parties: Simeon PALAY, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

349 F.3d 418

Simeon PALAY, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 01-1112.

United States Court of Appeals, Seventh Circuit.

Argued November 8, 2002.

Decided November 12, 2003.

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Mary Beth Young (argued), Jones Day, Columbus, OH, for Plaintiff-Appellant.

Samuel S. Miller (argued), Office of the United States Attorney, Chicago, IL, for Defendant-Appellee.

Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Simeon Palay, a federal prisoner, sustained injuries when a fight broke out among fellow inmates belonging to rival gangs at the Metropolitan Community Correctional Center in Chicago ("MCC"), where he was detained pending trial on criminal charges. Palay filed suit against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346 ("FTCA"), asserting that MCC officials had been negligent in the following respects: they improperly reassigned him from a unit for pretrial detainees like himself to a "holdover" unit housing convicted prisoners and members of known rival gangs; they failed to provide secure housing and protect him from violent attack; and they failed to provide him with timely and effective medical care for the injuries he received as a result of the gang fight. The district court dismissed Palay's complaint, concluding that Palay had failed to exhaust his administrative remedies with respect to the medical claim, that the reassignment and failure-to-protect claims were barred by the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a), and that the latter claims failed alternatively for want of a causal link between the asserted negligence of prison officials and Palay's injuries. We affirm in part and reverse in part.

I.

The following facts are alleged in Palay's complaint. Given the procedural posture of the case, we accept them as true. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

Palay is a federal prisoner currently housed at the Federal Correctional Institution in Oxford, Wisconsin. In June 1998, Palay was detained at the MCC in Chicago, where he was awaiting trial on federal charges. On June 19, the second shift lieutenant and unit counselor at the MCC transferred Palay from the pretrial unit to Unit 21, a holdover unit housing individuals who had already been convicted (hereinafter, the "holdover unit"). The complaint alleges that the transfer was "improper[ ]." Complaint at 3 ¶ 11.

At approximately 8:00 p.m. on the evening of June 19, a fight broke out in the holdover unit among inmates affiliated with two rival gangs. In the course of that altercation, one of the gang members threw a fire extinguisher, which struck the bunk where Palay lay sleeping and discharged into his face.¹ The discharge caused Palay to suffer an acute asthma attack. As he awoke choking, Palay sat up suddenly and struck his head on the bunk above him forcefully enough to blur his vision.

Another inmate helped Palay to a correctional officer's station, where an officer directed Palay to an adjacent room. He remained there for nearly an hour before he was taken to the medical unit for treatment. There, a physician's assistant treated him for his injuries and then released him to a correctional officer for return to the holdover unit.

Palay was returned to the holdover unit at approximately 10:15 p.m., just over two hours after the fight had broken out and he had sustained his injuries. Carbon dioxide fumes from the discharged fire extinguisher still lingered in the air, and as a result Palay suffered a second asthma attack upon his return to the unit.

Early the following day, a lieutenant questioned Palay about the incident, and he was placed in administrative detention pending further investigation. He was released several days later after officials determined that he was not a gang member and had not participated in the altercation. While he was placed in administrative detention, he received no treatment or additional medication for the injuries he had sustained during the fight.

Following his release from administrative detention and return to the holdover unit, Palay suffered a series of seizures. When the first occurred on June 23 (four days after he was injured), Palay was seen and treated by an MCC physician. Palay had experienced no seizures prior to this occasion. The second seizure occurred two weeks later while he was at the offices of the Federal Bureau of Investigation in Chicago. He was taken to a hospital, where a doctor diagnosed him with "New Onset Seizure Disorder." Both before and after this second seizure, Palay was refused medication by MCC medical staff. On his return to the MCC from the hospital, an MCC physician told Palay that he did not need to keep asking for medication because he was not having seizures. The physician advised him that he needed to "[e]at more and drink lots of water." Complaint at 6 ¶ 23. Days later, Palay suffered a third seizure in the middle of the night and awoke to find his bed soaked with urine. A correctional officer summoned a physician's assistant, who did not arrive for several hours and who failed to assess Palay's vital signs or provide any treatment.

On July 17, five days after his third seizure, Palay submitted an inmate request to an MCC counselor complaining about the refusal of MCC medical staff to provide him with medication for his condition. According to Palay, his complaint was ignored. The medical staff's alleged indifference, Palay contends, contributed to his pain and suffering. Complaint at 7 ¶ 27.

On February 4, 1999, Palay completed a Standard Form 95 "Claim for Damage, Injury, or Death" recounting the gang fight, the injuries he had sustained in that altercation, and the seizures he had suffered in the aftermath. In this administrative claim for relief, Palay asserted that "[d]ue to the Bureau of Prisons['] failure to protect me from the violence of fighting gang members and the failure of keeping hostile gangs sep[a]rated from each other I have been subjected to an injury that has caused me severe pain and suffering and emotional and great mental anguish." App. 29. He expressed concern that the seizures would continue and that, upon release from prison, he would be unable to return to his former occupation as a fork-lift operator. App. 29-30. Palay claimed total damages in the amount of $500,000. App. 28, 30. He attached to the Form 95 a July 8, 1998 letter to the MCC from his attorney, Andrea Taylor, requesting copies of all records relating to Palay's medical treatment and/or examinations. In that letter, Taylor noted that Palay had been injured as a result of a gang fight among other inmates shortly after his transfer into the holdover unit of the MCC. She pointed out that Palay had suffered three seizures since his injury and expressed the "hope that Mr. Palay has been examined for these medical problems." App. 31. Palay's Form 95 was submitted to the Bureau of Prisons (the "BOP" or "Bureau").

In a memorandum dated June 18, 1999, the Bureau's regional counsel informed Palay that his claim was denied. "Investigation of your claim did not reveal that you suffered any personal injury as a result of the negligent acts or omissions of Bureau of Prisons employees acting within the scope of their employment," he wrote. App. 32. The memorandum advised Palay that he was free to file suit in federal court if he was dissatisfied with the agency's decision.

Within six months of the Bureau's action, Palay did file suit, naming the warden, associate warden, and four other employees of the MCC as defendants. The court granted him leave to proceed in forma pauperis. He subsequently complied with the district court's order to submit a copy of the final disposition of his administrative claim, and he served five of the six individual defendants named in his complaint. The United States filed a notice certifying that the named defendants were acting within the scope of their employment at the time of the events underlying Palay's complaint and substituting the government as the defendant. R. 9. The government then moved to dismiss Palay's complaint, arguing in relevant part that the court lacked jurisdiction over the negligent reassignment and medical care claims because Palay had not exhausted his administrative remedies vis-à-vis those claims and that the claims should therefore be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1).

The district court ultimately dismissed Palay's claims, although in part for reasons other than those asserted by the government. See Palay v. United States, 125 F.Supp.2d 855 (N.D.Ill.2000) ("Palay I"); Palay v. United States, 2000 WL 1889668 (N.D.Ill.Dec.27, 2000) ("Palay II"). The court agreed that it lacked jurisdiction over the medical claim because Palay had not asserted such a claim in his Form 95, and therefore had not exhausted his administrative remedies vis à vis that claim. Palay I, 125 F.Supp.2d at 859-60.² By contrast, the court was satisfied that Palay had asserted his negligent reassignment claim in the Form 95; the court viewed this claim as encompassed within the broader failure-to-protect claim that Palay had articulated in the form. Id. at 859. However, for either of two reasons that it raised sua sponte, the court concluded that the allegations concerning the BOP's reassignment of and failure to protect Palay failed to state a claim on which relief could be granted. See Fed.R.Civ.P. 12(b)(6).³ First, in view of the broad discretion that prison officials possess with respect to the housing and protection of prisoners, the court believed that the negligent reassignment and failure-to-protect claims were foreclosed by the discretionary function exception to liability under the FTCA. Palay I, 125 F.Supp.2d at...