Palay v. U.S.
| Decision Date | 15 September 2000 |
| Docket Number | No. 99 C 8169.,99 C 8169. |
| Citation | 125 F.Supp.2d 855 |
| Parties | Simeon PALAY, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
Simeon Palay, Oxford, WI, Pro se.
Samuel Sanford Miller, United States Attorney's Office, Chicago, IL, for Defendant.
Simeon Palay, a federal prisoner, brought this pro se complaint under the Federal Tort Claims Act (FTCA) against administrators and medical staff employed at the Metropolitan Correctional Center (MCC) in Chicago. Palay, who was injured as a consequence of a gang fight at the MCC, alleges that his injury was caused by the negligence of MCC staff and that he did not receive proper medical treatment. By order dated January 6, 2000, Palay was granted leave to proceed in forma pauperis and was directed to submit a copy of the final disposition of his administrative claim, a prerequisite to suit under the FTCA. Palay did so, the court ordered summons to issue on February 9, 2000, and five of the six defendants were served in March of 2000.
Palay was not apprised that the proper defendant in FTCA cases is the United States of America, not the individual federal employees alleged to have caused the injury. On April 3, 2000, the United States filed a Notice of Substitution of Parties, certifying that the defendants were acting within the scope of their employment and substituting the United States as defendant.
The United States has filed a motion to dismiss, asserting that the complaint should be dismissed in part for lack of jurisdiction under Rule 12(b)(1) because Palay failed to submit certain claims to the Bureau of Prisons, dismissed in part under Rule 12(b)(6) for failure to state a claim upon which relief may be granted, or, alternatively, dismissed in its entirety under Rule 12(b)(5) for failure to serve the United States.
The FTCA allows a person injured by a federal employee acting in the scope of his or her employment to sue the United States "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). As a jurisdictional prerequisite of suit, the plaintiff is required to submit his or her claim to the appropriate federal agency for review. 28 U.S.C. § 2675(a). Initial review by the agency is intended to encourage administrative consideration and settlement of claims and reduce unnecessary litigation. Deloria v. Veterans Admin., 927 F.2d 1009, 1011 (7th Cir.1991).
Palay filed an administrative claim with the United States Bureau of Prisons, Def. Mo. Att. A, setting forth the following narrative.1 On June 19, 1998, Palay was asleep in his bunk at the MCC at approximately 8-9 p.m. Members of two rival gangs started fighting near his bunk. Someone threw a fire extinguisher and it hit Palay's bunk, causing the fire extinguisher to discharge its contents into Palay's face. Palay suddenly awakened and jumped up, ramming his head into the upper bunk directly above him and knocking himself unconscious. When he recovered consciousness, he had a severe asthmatic attack due to irritation by the extinguisher's chemicals. Subsequently Palay has experienced seizures, presumably as a result of brain injury caused by the accident, and he fears that upon his release from prison he will not be able to return to his previous occupation as a fork-lift operator.
Palay's complaint sets forth three "causes of action." First, he alleges that the defendants negligently reassigned him from a "pretrial" unit to a "holdover" unit, which contained known members of rival gangs, unnecessarily exposing him to a risk of harm. He alleges this violated the duty of care owed to him under 18 U.S.C. § 4042(a), which provides that the Bureau of Prisons, under the direction of the Attorney General, shall —
(1) have charge of the management and regulation of all Federal penal and correctional institutions;
(2) provide suitable quarters and provide for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the United States, or held as witnesses or otherwise;
(3) provide for the protection, instruction, and discipline of all persons charged with or convicted of offenses against the United States....
For his second "cause of action," Palay alleges that he was denied "timely and effective medical care," also in violation of the duty of care established by § 4042. Palay states for his "third cause of action" that MCC staff "violated the laws of negligence and gross negligence of the State of Illinois" in failing to prevent injury to him and failing to provide him with proper medical care. Cmplt. 7-9.
The United States points out that negligent reassignment was not mentioned in Palay's administrative claim, nor even that Palay was a pre-trial detainee. The United States asserts that Palay has not exhausted this claim. Nevertheless, a plaintiff is not required to plead legal theories in the administrative claim, or set forth facts that were at least as well known to MCC officials as to Palay. All that is required is "sufficient notice to enable the agency to investigate the claim." Charlton v. United States, 743 F.2d 557, 560 (7th Cir.1984). See Burchfield v. United States, 168 F.3d 1252, 1255 (11th Cir. 1999)("An administrative agency is deemed to be on notice not only of the theories of recovery stated in the claim, but of the theories of recovery that its reasonable investigation of the specific allegations of the claim should reveal"). The claim is reasonably read as an assertion that the defendants were negligent in protecting Palay from the danger of fighting inmates.
The United States has a better argument with respect to Palay's claim that the defendants "fail[ed] to provide necessary and effective medical attention following plaintiff's injury and complications that were proximately caused by the negligent acts of the defendants." Cmplt. ¶ 32. The administrative claim cannot be fairly read as alleging medical malpractice or deficient medical care. The purpose of requiring an administrative claim is to permit the agency to conduct its own investigation of the incident resulting in the claim. Palay asserts that his attorney's request for his medical records indicated that he might pursue a medical-care claim, but medical records would also have been relevant to the extent of his injury, and would not have alerted the Bureau of Prisons to the possibility of a medical-care claim. The court agrees that the United States did not have proper notice of any claim relating to medical care and so any such claim is premature. Deloria, 927 F.2d at 1011-12. All claims relating to medical care are accordingly dismissed without prejudice.
The United States asserts that no relief may be granted on Palay's central claim, that its officers were negligent in protecting him. The complaint alleges that Palay was negligently reassigned to "holdover" status and unnecessarily exposed to harm, and that defendants negligently failed to protect him from injury. Under federal "notice pleading" this is enough to state a claim. Conclusions may be pleaded as long as the defendant has at least minimal notice of the claim. Jackson v. Marion County, 66 F.3d 151, 153-54 (7th Cir.1995).
The United States contends that it cannot be liable for an inmates' injuries resulting from a an assault by another inmate unless the inmate informed prison officials that he was at risk or there were "extraordinary incidents at the prison near the time of the assault." Def. Br. at 7. The United States cites Artis v. Petrovsky, 638 F.Supp. 51, 53 (W.D.Mo.1986), and Jones v. United States, 534 F.2d 53, 54 (5th Cir.1976), cert. denied, 429 U.S. 978, 97 S.Ct. 487, 50 L.Ed.2d 586 (1976), upon which Artis relied. These cases are not dispositive here, and not only because they are not binding precedent. The opinion in Artis explained a grant of summary judgment, while Jones affirmed a finding of no liability after trial. As such they do not establish what a plaintiff must plead in a complaint.
In any event, the court does not believe that liability depends upon whether members of the institutional staff received actual, particularized notice of danger to the plaintiff. Assuming that the FTCA renders the United States liable for negligently failing to protect a prisoner, negligence includes failure to respond to a risk of which a reasonable person would have known, whether or not he or she was actually apprised of it. Palay is not alleging a constitutional tort, requiring him to show deliberate indifference and hence actual knowledge of a danger to him. See Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)(deliberate indifference requires actual knowledge); Del Raine v. Williford, 32 F.3d 1024, 1032 (7th Cir.1994)(comparing constitutional and negligence standards).
Nevertheless, the motion to dismiss for failure to state a claim will not be denied at this time, because the court has identified two potentially fatal flaws in Palay's case. The court's power to raise these issues on its own motion is confirmed by 28 U.S.C. § 1915(e)(2)(B), requiring the court to dismiss a suit at any time if it determines that it fails to state a claim upon which relief may be granted. Because the United States did not raise these issues, the court will not dismiss this action until Palay has had an opportunity to respond.
First, it appears that Palay's FTCA claim is barred by the discretionary function exemption. Because the FTCA functions as a waiver of the sovereign immunity of the United States, it is subject to those exceptions Congress has...
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