Rich v. United States

• Decision Date: 29 December 2015
• Docket Number: No. 14–7204.,14–7204.
• Citation: 811 F.3d 140
• Parties: Joshua RICH, Plaintiff–Appellant, v. UNITED STATES of America, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

811 F.3d 140

Joshua RICH, Plaintiff–Appellant,

v.UNITED STATES of America, Defendant–Appellee.

No. 14–7204.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 27, 2015.

Decided: Dec. 29, 2015.

ARGUED:Jay Thornton McCamic, McCamic, Sacco & McCoid, PLLC, Wheeling, West Virginia, for Appellant. Alan McGonigal, Office of the United States Attorney, Wheeling, West Virginia, for Appellee. ON BRIEF: William J. Ihlenfeld, II, Assistant United States Attorney, Office of the United States Attorney, Wheeling, West Virginia, for Appellee.

Before KEENAN, WYNN, and DIAZ, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Judge KEENAN wrote the opinion, in which Judge WYNN and Judge DIAZ joined.

BARBARA MILANO KEENAN, Circuit Judge:

While serving a fifty-seven year sentence at the United States Penitentiary in Bruceton Mills, West Virginia (USP Hazelton), Joshua Rich was attacked in a recreation area, or "cage," by several other inmates. He was severely beaten and stabbed several times. A nine-inch-long homemade knife was recovered at the scene. Rich suffered serious injuries, including liver laceration

, which required numerous invasive surgeries.

Rich sued the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), alleging that prison officials had been negligent in failing to protect him from the attack. The district court granted the government's motion to dismiss for lack of subject matter jurisdiction, concluding that the discretionary function exception to the FTCA applied both to the prison officials' decision not to separate Rich from his attackers, as well as to the manner in which the officials searched other inmates prior to placing them with Rich in the recreation cage.

Upon our review, we affirm the district court's holding that the prison officials' discretionary decision not to separate Rich from his attackers is subject to the discretionary function exception of the FTCA, depriving us of jurisdiction over that claim. However, with regard to Rich's claim that prison officials did not perform the searches properly, we remand for additional discovery because jurisdictional facts are intertwined with the merits of that claim.

I.

In 2008, the United States District Court for the District of Utah sentenced Rich to fifty-seven years' imprisonment for armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), and for using and carrying a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). Rich entered the custody of the Bureau of Prisons (BOP) in September 2008.¹

According to Rich, he immediately was targeted in prison by a white supremacist group, the "Aryan Brotherhood," for his refusal to follow that group's rules and to participate in the group's criminal schemes. Although transferred frequently to different penitentiaries, Rich contends that he was targeted continually by the Aryan Brotherhood and required separation from the group.²

In February 2011, Rich was transferred to USP Hazelton and, on August 5, 2011, five inmates attacked him in a recreation cage within the Special Housing Unit (SHU). The attackers beat Rich and stabbed him repeatedly. A knife measuring about nine inches in length was recovered from the scene.³ Rich suffered serious injuries and underwent numerous surgeries, including a bronchoscopy

for respiratory failure, a laparotomy to repair a laceration to his liver, and open-heart surgery to repair the right atrium of his heart.

Rich sued the United States under the FTCA, alleging one count of negligence asserting that the prison officials had failed to protect him from harm. Rich alleged that the officials should have kept him separated from his attackers, and that the officials failed to screen, "wand," or search the inmates properly prior to placing them in the recreation cage.

The government moved to dismiss Rich's complaint on the basis that the discretionary function exception to the FTCA, which limits the government's waiver of sovereign immunity for certain kinds of discretionary conduct, applied both to the prison officials' decision whether to separate Rich from his attackers and to the manner in which the prison officials searched the attacking inmates. To support its position, the government included several exhibits with its motion to dismiss. These attachments included portions of Rich's prison file and declarations from the prison officials, who stated that they performed patdowns and searches properly on all inmates before the attack. The attachments also included various "Post Orders" in effect at USP Hazelton on August 5, 2011.⁴

The Post Orders relating to the SHU require that an inmate's hands be restrained behind his body whenever leaving his cell for recreation. Additionally, the Post Orders state that "inmates will be pat searched and screened with the hand-held metal detector before entering and upon exiting the recreation cages." The Post Orders do not otherwise describe how a patdown should be performed. However, the BOP "Program Statement" applicable to all prisons, including USP Hazelton, provides that "[a]ny pat search shall be conducted as outlined in the Correctional Services Manual."⁵ Moreover, according to the Post Orders, when an inmate has a prior history of weapons possession, prison officials must perform a "visual search" of the inmate, including a search of the inmate's body cavities, prior to his entry into a recreation cage.

After reviewing these attachments, the district court agreed with the government that the discretionary function exception applied to the prison officials' decisions regarding inmate separation and the manner in which the prison officials performed the patdowns and searches.⁶ The court found that the Post Orders "do not mandate a specific course of conduct" for the officers to follow in performing the required searches. The court also concluded that the discretion afforded prison officials is consistent with the public policy of granting prison officials deference in implementing and executing their security measures.

The district court further concluded that Rich was not entitled to any discovery regarding whether additional directives mandated a particular method for performing patdowns and searches. Accordingly, the district court granted the government's motion to dismiss for lack of subject matter jurisdiction. This appeal followed.

II.

On appeal, Rich challenges the district court's conclusion that the discretionary function exception applies to the prison officials' conduct. He argues that the officials had a non-discretionary duty to maintain and monitor both his prison files and the files of other inmates. Rich contends that if the officials had taken these security measures, they would have known about Rich's history with the Aryan Brotherhood and the need to keep him separated from the group's members. Rich also argues that the Post Orders and other policies imposed mandatory directives that the prison officials search and patdown inmates prior to placing them in the recreation cage, thereby precluding application of the discretionary function exception. Rich contends that, at a minimum, he should have been allowed the opportunity for discovery before the district court determined that the discretionary function exception applied.

In response, the government contends that the officials' decision not to separate Rich from his attackers, as well as the manner in which the searches were performed, are matters within the discretionary function exception. The government asserts that there are no directives governing the separation of prisoners or the proper procedure for performing patdowns and searches. The government argues that, therefore, the prison officials' discretion in these areas implicates public policy considerations that justify application of the discretionary function exception. The government further asserts that the district court did not abuse its discretion when it refused to grant Rich discovery, because no additional information could be uncovered that would establish the district court's jurisdiction.

A.

We review a district court's decision dismissing a case for lack of subject matter jurisdiction de novo. Taylor v. Kellogg Brown & Root Servs., Inc., 658 F.3d 402, 408 (4th Cir.2011). We review a denial of jurisdictional discovery for abuse of discretion. Durden v. United States, 736 F.3d 296, 307 (4th Cir.2013).

Although the United States typically is immune from suit, the FTCA provides a waiver of this sovereign immunity when the federal government "would be liable to the claimant in accordance with the law of the place where the act or omission occurred" for certain torts, such as negligence, committed by federal employees acting within the scope of their employment. 28 U.S.C. § 1346(b)(1). However, under the FTCA, the discretionary function exception limits that waiver of immunity in situations involving "the exercise or performance or the failure to exercise or perform a discretionary function or duty ... whether or not the discretion involved be abused." 28 U.S.C. § 2680(a).

To determine whether conduct qualifies for the discretionary function exception, courts apply a two-pronged test. First, a court considers whether the challenged governmental conduct involves an element of judgment or choice. United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). When a statute, regulation, or policy prescribes a specific course of action, there is no discretion and the exception does not apply. Id. Second, if the challenged conduct does involve an element of judgment, the court must then determine whether the judgment was one that the exception was designed to protect, namely, a judgment based on considerations of public policy. Id. at 322–23, 111 S.Ct. 1267.

A defendant's assertion that the discretionary function exception applies is an assertion that the court lacks subject matter jurisdiction. See ...