Payton v. U.S.

• Citation: 636 F.2d 132
• Decision Date: 02 February 1981
• Docket Number: No. 79-2052,79-2052
• Parties: Douglas Glynn PAYTON, Administrator of the estate of Sheryl Lynn Payton, deceased, et al., Plaintiffs-Appellants, v. The UNITED STATES of America, Defendant-Appellee. . Unit B
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 132

636 F.2d 132

Douglas Glynn PAYTON, Administrator of the estate of Sheryl Lynn Payton, deceased, et al., Plaintiffs-Appellants, v. The UNITED STATES of America, Defendant-Appellee.

No. 79-2052.

United States Court of Appeals, Fifth Circuit.

Unit B

Feb. 2, 1981.

Edward L. Hardin, Jr., Leon Kelly, Jr., Birmingham, Ala., for plaintiffs-appellants.

Emilia M. DeMeo, Trial Atty., Eloise E. Davies, U. S. Dept. of Justice, Washington, D. C., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Alabama.

Before JONES, FAY and HENDERSON, Circuit Judges.

FAY, Circuit Judge:

It is alleged that a federal prisoner guilty of attacking or ravishing multiple females of all ages was released from custody in total disregard of extensive medical reports confirming him as a homicidal psychotic and that shortly thereafter he brutally beat, murdered and mutilated three females including appellants' decedent. Relief is sought by the victim's husband and children against both prison and parole officials. The trial court, 468 F.Supp. 651, dismissed for lack of jurisdiction. We reverse.

The question presented is whether the alleged conduct by personnel of the United States Board of Parole and the United States Bureau of Prisons comes within the provisions of the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671-2680 (1976) (FTCA) or is exempt as a "discretionary function" pursuant to 28 U.S.C. § 2680(a) (1976). We conclude that section 2680(a) is not applicable and that the allegations state a valid claim for relief under the FTCA.

I.

Appellants allege and we accept as true on a motion to dismiss, see Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980), that in 1977 Thomas Warren Whisenhant was convicted of the brutal murder and mutilation of Sheryl Lynn Payton, the appellants' decedent. This murder was not the first violent crime for Thomas Warren Whisenhant.

In 1966, as a member of the United States Air Force, Whisenhant was sentenced to twenty years in federal prison on a charge of assault with intent to murder arising out of the severe and brutal beating of a female member of the Air Force. Prompt medical attention saved the life of this initial victim. While serving his sentence Whisenhant manifested his continued homicidal tendencies by threatening the life of the only female with whom he came in contact, an employee of the federal penitentiary at which he was incarcerated. During this time period he was repeatedly diagnosed as psychotic and described as suffering from schizophrenia, paranoid type. His mental condition was noted as aggressive, chronic, severe, and manifested by brutality and assaultive behavior. Further, in 1968 one prison psychiatrist concluded that Whisenhant was in dire need of long term psychiatric treatment which he did not receive. Despite all of these warning signals, Whisenhant's sentence was reduced to ten years in 1970 and he was granted parole on November 28, 1973. ¹

Subsequent to parole Whisenhant brutally beat and murdered, on November 21, 1975, Ms. Patricia Hitt in Mobile, Alabama. On April 16, 1976, he kidnapped and murdered Mrs. Venora Hyatt also in Mobile, returning the next day to brutally mutilate the body. ² Finally, on October 16, 1976 he kidnapped, raped and murdered appellants' wife/mother, returning to brutally mutilate her body in a manner similar to that of Mrs During Whisenhant's trial for the murder of appellants' decedent a psychiatrist who had examined Whisenhant's records testified that appellee's treatment of Whisenhant as a rational criminal rather than as a mental patient was contrary to elementary knowledge about psychotic behavior. Specifically, he testified that Whisenhant's behavior should have been recognized as nonspecific and intrapsychic and therefore repetitive and that as a homicidal psychotic his release on parole was grievous error bordering on gross negligence.

Hyatt. Whisenhant confessed to all of these actions.

Appellants filed the standard administrative forms with appellee claiming damages for the death of Mrs. Payton and in the absence of final disposition after six months, in accordance with 28 U.S.C. § 2675(a) (1966), ³ that claim was withdrawn and this action instituted. The complaint avers that the negligent reduction of Whisenhant's sentence by appellee, United States Parole Board, and the subsequent negligent decision to release and parole Whisenhant by the Board, due to the Board's failure to acquire and read the records indicating his murderous propensities or in disregard of these propensities, proximately caused Mrs. Payton's death and appellants' injuries. It alternatively avers that the Parole Board's negligence in failing to make adequate provisions for, or the negligent carrying out of, continued treatment and supervision of Whisenhant after parole was the proximate cause of appellants' injuries. Appellants also aver that appellee, United States Bureau of Prisons, negligently failed to have Whisenhant confined in a mental institution until restored to sanity or until his entire twenty year sentence was completed in accordance with 18 U.S.C. § 4241 (1976), ⁴ and further that prison authorities negligently provided improper psychiatric treatment for Whisenhant. Finally, the complaint avers that appellee, Bureau of Prisons, negligently failed to provide the United States Parole Board with all pertinent records prior to the time of Whisenhant's release and parole, which failure resulted in the improper parole decision.

II.

By enacting the FTCA Congress authorized a limited waiver of sovereign immunity in tort actions. The statute confers jurisdiction upon the federal district courts with respect to claims against the United States, for money damages or 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

28 U.S.C. § 1346(b) (1976). Excluded from this broad grant of jurisdiction is

(A)ny 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.

28 U.S.C. § 2680(a) (1970). However, the Act does not provide a definition of "discretionary function." We must turn, therefore, to judicial interpretation and the FTCA's legislative history for its meaning and develop an appropriate analytical framework which is applicable not only to the facts of this action but to the broad spectrum of such governmental activities.

The parties agree that the seminal decision construing the exception is Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). This action was brought under the FTCA for personal injuries and deaths resulting from the cataclysmic explosion in Texas City, Texas of nitrate fertilizers manufactured by the government in surplus ordnance plants for shipment to occupied Europe. The findings of causal negligence fell roughly into three categories-carelessness in drafting and adopting the fertilizer export plan, negligence in manufacturing the fertilizer and dereliction of duty in failing to police shipboard loading. ⁵ Id. at 24, 73 S.Ct. at 962. The Supreme Court rejected these claims holding that the government's actions were protected as discretionary functions. Id. at 42, 44, 73 S.Ct. at 971, 972.

After reviewing the legislative history, the Dalehite Court determined that § 2680(a) was drafted as a clarifying amendment to assure protection for the government against tort liability for administrative or regulatory policy errors while allowing relief for run-of-the-mill tortious conduct of government employees and agents. ⁶ Id. at 26-27, 28 n.19, 73 S.Ct. at 963, 964 n.19. Therefore, the majority concluded that (t)he "discretion" protected by the section is not that of the judge-a power to decide within the limits of positive rules of law subject to judicial review. It is the discretion of the executive or the administrator to act according to one's judgment of the best course, a concept of substantial historical ancestry in American law.

Id. at 34, 73 S.Ct. at 967. In amplification the Court went on to state that:

It is unnecessary to define, apart from this case, precisely where discretion ends. It is enough to hold, as we do, that the "discretionary function or duty" that cannot form a basis for suit under the Tort Claims Act includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable. If it were not so, the protection of § 2680(a) would fail at the time it would be needed, that is, when a subordinate performs or fails to perform a causal step, each action or nonaction being directed by the superior, exercising, perhaps abusing, discretion.

Id. at 35-36, 73 S.Ct. at 967-968.

While this language certainly permits an extremely broad interpretation of the application of the exemption, it has been limited by subsequent decisions which favor deeper analysis. As so ably put by Judge Goldberg:

The description of a discretionary function in Dalehite permits the interpretation that any federal official vested with decision-making power is...