Triestman v. Federal Bureau of Prisons

• Decision Date: 05 December 2006
• Docket Number: Docket No. 05-3080-pr.
• Citation: 470 F.3d 471
• Parties: Ben Gary TRIESTMAN, Plaintiff-Appellant, v. FEDERAL BUREAU OF PRISONS, United States of America, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

470 F.3d 471

Ben Gary TRIESTMAN, Plaintiff-Appellant, v. FEDERAL BUREAU OF PRISONS, United States of America, Defendants-Appellees.

Docket No. 05-3080-pr.

United States Court of Appeals, Second Circuit.

Argued: September 18, 2006.

Decided: December 5, 2006.

Ben Gary Triestman, pro se, Shady, N.Y.

William H. Pease, Assistant United States Attorney (for Barbara D. Cottrell Assistant United States Attorney) (Paula Ryan Conan, Assistant United States Attorney, of counsel), for Glenn T. Suddaby, United States Attorney for the Northern District of New York, Albany, N.Y., for Defendant-Appellee.

Before: CALABRESI and B.D. PARKER, Circuit Judges, and LYNCH, District Judge.^*

PER CURIAM:

Appellant Ben Gary Triestman appeals from a March 10, 2004 order of the United States District Court for the Northern District of New York (Mordue, J.) partially dismissing—pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure—Triestman's complaint brought under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b)(1) and 2671 et seq., against the Federal Bureau of Prisons ("BOP") and the United States of America.¹ We conclude that Triestman's submissions, construed "liberally" and "interpret[ed] [so as] to raise the strongest arguments that they suggest," Pabon v. Wright, 459 F.3d 241, 248 (2d Cir.2006) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994)), should be read to allege a theory of liability under the FTCA that the district court did not consider below. Because the district court has jurisdiction to consider this theory of liability, dismissal pursuant to Rule 12(b)(1) was inappropriate and, accordingly, we vacate and remand to the district court for further proceedings. In addition, we recommend that the district court appoint counsel to assist Triestman in further pursuing his claims.

BACKGROUND

I. Statement of facts

At all relevant times, the BOP had in place a program statement which provided that "[s]ignaling devices will be available for inmate use in all locked housing units that do not have continuous staff coverage," and that "[i]nmates will not be left unattended in locked areas unless a signaling device is available to them for emergencies." BOP Program Statement No. 1600.06(3-4) (Feb. 25, 1992). The language of this program statement makes clear that prison officials must provide "continuous staff coverage" to, and may not leave "unattended," any inmate in a locked housing unit who does not have access to an emergency "signaling device." The precise terms "continuous staff coverage" and "unattended" are not defined in the program statement.

According to Triestman, while he was incarcerated at the Federal Correctional Institution at Ray Brook, New York ("FCI Ray Brook"), the BOP "neglect[ed] its duty of care" by failing to "adhere[] to its own regulations." Specifically, Triestman asserts that BOP employees—namely, the correctional staff at FCI Ray Brook—"did not provide either emergency signaling devices or continuous staffing of the areas where inmates were left unattended in locked areas," and, consequently, failed to comply with the BOP's program statement. It is undisputed that emergency signaling devices were not made available at FCI Ray Brook. Triestman contends that "continuous staff coverage" was not provided either, and that, as a result, he was left "unattended in . . . a locked area."

In support of this contention, Triestman's submissions have focused on the staffing policy in place at FCI Ray Brook which, Triestman argues, was so inadequate that it "cannot be interpreted as continuous staff coverage." Under the staffing policy—according to Triestman's undisputed description—a single guard was assigned to an officer's station positioned in the center of numerous locked cells. Triestman explains that "[t]wice throughout the night, at regularly scheduled times, the guard is to make a cell check, and peeks into the window of each darkened cell for about 5 seconds. Between these cell checks, the inmates are entirely beyond earshot of the guard."

Triestman alleges that he was "preventably injured" as a result of FCI Ray Brook's failure to provide "continuous staff coverage." As a first-time, non-violent federal inmate, Triestman had originally been "designated a low security inmate and initially housed a [sic] low security facility at . . . Otisville, [New York]." On January 12, 1995, due to overcrowding at Otisville, Triestman was transferred to FCI Ray Brook, a "medium/high security prison."² Upon arrival at FCI Ray Brook, Triestman was assigned to share a cell with an inmate, Gerald Harris, whom Triestman argues "was known to the [BOP] to be a violent criminal and sexual predator."

Triestman's appellate brief recounts the circumstances leading to his alleged injuries:

On the morning of January 26, 1995, at approximately 4:00 am [sic], after a night of escalating cajoling, advances and threats to convince Plaintiff to participate in homosexual intercourse and sodomy, Gerald Harris assaulted Plaintiff out of frustration and extortion, whereas [sic] Plaintiff refused to submit to Harris' overtures. In the assault, Harris dislocated Plaintiff's shoulder and later burned his hand with lit cigarettes.

Despite Plaintiff's shouts for help, no officer responded, and over this time Plaintiff was at the mercy of Harris, and in excruciating pain and fear . . . .

When the officer finally did come by, Plaintiff banged on the door begging to be let out[;] the officer queried as to why through the closed door[;] and Plaintiff yelled that he had been attacked.

The officer unlocked the door . . . and later Plaintiff was escorted to the infirmary, where he was X-rayed, [and] his shoulder reduced without anesthetics.

Triestman says that, as a result of the attack, he "suffered acute excruciating pain, emotional distress, and continues to suffer chronic shoulder instability as well as continuing post traumatic stress." We must, at this stage of the proceedings, accept these factual assertions as true.

II. Procedural history

In July 1996, Triestman, proceeding pro se, filed this FTCA suit.³ In counts four and five of his complaint, Triestman asserted that the BOP failed to provide him signaling devices and proper staffing at FCI Ray Brook.⁴ The district court, adopting the report and recommendation of United States Magistrate Judge David R. Homer, concluded, in relevant part, that counts four and five of Triestman's complaint were barred by the FTCA's "discretionary function" exception to the federal government's limited waiver of sovereign immunity. See 28 U.S.C. § 2680(a) (barring liability for "[a]ny claim . . . 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 [] employee . . ., whether or not the discretion involved be abused"); see also Fazi v. United States, 935 F.2d 535, 538 (2d Cir.1991) (describing the two-pronged Berkovitz-Gaubert test for determining whether a government employee's conduct is protected under the discretionary exception function) (citing United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991); Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)). Accordingly, the district court granted the government's Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, on the ground of sovereign immunity.

DISCUSSION

On appeal, Triestman challenges only the district court's dismissal for lack of jurisdiction of the allegations in counts four and five of his complaint—namely, that the BOP "did not provide either emergency signaling devices or continuous staffing of the areas where inmates were left unattended in locked areas," and that this failure is causally related to the injuries he suffered. Accordingly, we address only those counts.

I. Standards of review and construction of pro se submissions

Where, as here, a district court grants a defendant's Rule 12(b)(1) motion to dismiss, we review the district court's legal conclusions de novo, Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir.2005), and "must accept as true all material factual allegations in the complaint," J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir.2004). See also Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

It is well established that the submissions of a pro se litigant must be construed liberally and interpreted "to raise the strongest arguments that they suggest." Pabon, 459 F.3d at 248 (emphasis added) (quoting Burgos, 14 F.3d at 790); see also Brownell v. Krom, 446 F.3d 305, 310 (2d Cir.2006); Forsyth v. Fed'n Employment & Guidance Serv., 409 F.3d 565, 569 (2d Cir.2005); Sharpe v. Conole, 386 F.3d 482, 484 (2d Cir.2004); Wright v. Comm'r., 381 F.3d 41, 44 (2d Cir.2004); Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir.2003); Bennett v. Goord, 343 F.3d 133, 137 (2d Cir.2003); Weixel v. New York City Bd. of Educ., 287 F.3d 138, 145-46 (2d Cir.2002); Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir.2000); McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999); Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996).

This policy of liberally construing pro se submissions is driven by the understanding that "[i]mplicit in the right of self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983); see also Ruotolo v. I.R.S., 28 F.3d 6, 8 (2d Cir.1994) (recognizing that pro se litigants must be accorded "special solicitude"). See generally Jonathan D. Rosenbloom, Exploring Methods to Improve Management and Fairness in Pro Se Cases: A Study of the Pro Se Docket in the Southern District of New York, 30 FORDHAM URB. L.J. 305, 380 (2002) ("In this time of ever increasing legal...