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Federal Tort Claims Act
Monthly Law Journal Article: Civil Liability of U.S. Government Under the Federal Tort Claims Act For Actions of Federal Law Enforcement Officers – Part 1 of 2, 2020 (3) AELE Mo. L.J. 101.
A woman pregnant with her tenth child was taken into custody on federal bank fraud charges when her pregnancy was in its 35th week. U.S. Marshals arranged for her housing at a facility with a full-time medical staff and a relationship with an obstetrics practice. Her blood pressure was high. No medical history was taken. She did not disclose that with her ninth pregnancy, she had an emergency cesarean section at 34 weeks. She signed a release but the facility did not obtain her prenatal care records. For 10 days, she had multiple contacts with medical staff, and told a nurse that she was not having any problems. She then refused to be seen and signed a refusal form. Days later, she awoke with pain and called for assistance. She was taken to a hospital by ambulance, but again denied having any complications or chronic medical problems. The nurse was unable to find fetal heart tones, and a doctor ordered an emergency cesarean section. The woman suffered a complete abruption of the placenta which stopped the flow of oxygen to the baby, who has severe, permanent disabilities. The abruption likely occurred in the ambulance or at the hospital, because the child would not have survived had it occurred earlier. Her father sued under the Federal Tort Claims Act (FTCA), 28 U.S.C. 2671, alleging medical malpractice. A federal appeals court affirmed summary judgment for the defendants. Placement and retention of the mother at the facility fell within the discretionary function exception to the FTCA’s waiver of sovereign immunity. There was no indication that she required immediate care before the morning of the birth, when staff members promptly called for help. Lipsey v. United States, #17-1063, 2018 U.S. App. Lexis 203 (7th Cir.).
After the terrorist attacks on September 11, 2001, the U.S. government detained hundreds of illegal aliens, pending a determination of their possible connection to terrorist activity. The plaintiffs, six men of Arab or South Asian descent who were among the detainees and were subsequently removed from the country, filed a proposed class action lawsuit against federal executive officials and wardens, seeking damages, and claiming that their “harsh pretrial conditions” were punitive, violated the Fourth and Fifth Amendments, and were based on race, religion, or national origin. They also asserted that the defendant wardens allowed guards to abuse them. The U.S. Supreme Court has rejected all these claims. In 42 U.S.C. 1983, Congress provided a damages remedy for plaintiffs whose constitutional rights were violated by state officials. There was no corresponding remedy for constitutional violations by federal agents. In 1971, the U.S. Supreme Court recognized (in Bivens v. Six Unknown Fed. Narcotics Agents, #301, 403 U. S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619) an implied damages action for violations of the Fourth Amendment’s prohibition against unreasonable searches and seizures by federal agents. The Court later allowed Bivens-type remedies in Fifth Amendment gender-discrimination and Eighth Amendment Cruel and Unusual Punishments cases. Bivens, however, will not be further extended to a new context if there are “special factors counseling hesitation in the absence of affirmative action by Congress.” To avoid interference with sensitive Executive Branch functions or any inquiry into national-security issues, the Court ruled, a Bivens remedy should not be extended to the claims concerning confinement conditions. With respect to the wardens, Congress did not provide a damages remedy against federal jailers in the Prison Litigation Reform Act 15 years after the U.S. Supreme Court’s expressed caution about extending Bivens. Qualified immunity bars the claims of conspiracy to violate civil rights under 42 U.S.C. 1985(3). Reasonable officials in the defendants’ positions would not have known with sufficient certainty that section 1985(3) prohibited their joint consultations and the resulting policies. There was no clearly established law on the issue of whether agents of the same executive department are distinct enough to “conspire” within the meaning of the statute. Ziglar v. Abbasi, #15-1358, 198 L. Ed. 2d 290, 2017 U.S. Lexis 3874.
A detainee was taken from the county jail to a federal courthouse for his arraignment. Once there, U.S. Marshals escorted him to an interview room to meet with his lawyer. They inspected that room weekly. On the detainee’s side of the room, there is a metal stool attached to the wall by a swing-arm. According to the plaintiff, when he sat on the stool it “broke,” causing him to fall and strike his head. He allegedly saw that bolts were missing. A nurse examined him and noted that his speech was slurred. She had him taken to the emergency room. He was treated for a stroke and continues to suffer adverse effects.He sued the federal government under the Federal Tort Claims Act, 28 U.S.C. 2671, relying on the doctrine of res ipsa loquitur (it “speaks for itself”) to assert negligence by the government. The trial court rejected the theory, noting that the fall occurred at 11 a.m., so it was possible that others could have already damaged the seat or that he fell without the stool having malfunctioned. A federal appeals court reversed, reasoning that the fact that a detainee is left alone to confer with his lawyer did not defeat the notion that the room and its contents remained within the control of the government. The sort of malfunction that the plaintiff described is the kind of hazard that the government may be expected to guard against. Smith v. U.S., #16-4085, 2017 U.S. App. Lexis 11258 (7th Cir.).
Eight female alien detainees sued under both 42 U.S.C. Sec.
1983 and the Federal Tort Claims Act (FTCA), 28 U.S.C. 2671 et seq., claiming that
a male corrections officer at a privately run prison had sexually assaulted
them. Sec. 1983 claims were properly dismissed against the company running the
facility and its facility administrator, as well as summary judgment granted on
that claim against the officer, since the detention of the plaintiffs according
to ICE specifications was carried out under federal law, not under color of
state law as required for a Sec. 1983 claim. Claims against the county, which
had almost no involvement in the facility's operation, were also rejected. The
appeals court also upheld the rejection of FTCA against the U.S. government, as
there was no evidence that ICE officials acted with deliberate indifference.
Doe v. United States, #15-50331, 2016 U.S. App. Lexis 13696 (6th Cir.).
Two prisoners at a
federally-owned and contractor-run prison sued the U.S. government under the
Federal Tort Claims Act (FTCA), 28 U.S.C. 1346, after they contracted
coccidioidomycosis (cocci). They claimed that the government failed to protect
them from contracting this illness. An independent contractor exception to the
FTCA did not bar liability. The Bureau of Prisons' duty to warn prisoners
before transferring them to this facility arose outside of its contractual
relationship with the company running the prison. As the owner of the facility,
the U.S. government had a duty under California law to exercise reasonable care
in the ownership and management of the property, and state law recognizes a
special relationship between jailer and prisoner. Additionally, the BOP did not
delegate all of its duties to the contractor once the prisoners arrived at the
prison, and explicitly excluded the contractor from participating in the
development of a cocci prevention policy. Edison v. United States, #14-15472,
2016 U.S. App. Lexis 9250 (9th Cir.).
A federal prisoner sued the U.S. government
under the Federal Tort Claims Act, 28 U.S.C. 1346(b), claiming that he was
severely beaten by another prisoner because of negligence by prison officials.
The defendants were granted summary judgment under an exception to liability
under the Act for “[a]ny claim based upon . . . the exercise or performance . .
. [of] a discretionary function," in this case decided where to house
inmates. While that lawsuit was pending, the prisoner filed a second claim
asserting constitutional claims against prison employees arising out of the
first incident. The first lawsuit was dismissed based on the discretionary
function, and the second suit was then dismissed based on the first suit's
dismissal. The U.S. Supreme Court ruled that this was improper. The trial court
did not dismiss the first suit based on a finding that the employees were not
negligent, but only based on an exception to the FTCA as to federal government
liability. That had no bearing on the issue of whether employees could be
liable instead on a constitutional claim. Simmons v. Himmelreich, #15-109, 2016
U.S. Lexis 3613.
A D.C. prisoner was incarcerated for over two
decades in both federal and state prisons on a conviction for raping and
robbing a woman in 1981 when he was 18. After his parole, he was required to
register as a sex offender, limiting his employment, housing, and other
opportunities. During his incarceration, he suffered multiple instances of
several sexual and physical assaults, and contracted HIV. In 2012, at the age
of 50, he was exonerated and determined to be actually innocent of the robbery
and rape, based on DNA evidence. He reached a settlement of claims against the
federal government under the Unjust Convictions Act, 28 U.S.C. Secs. 1495 and
2513, and the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq. of
$1,128,082.19, based on $50,000 times the 22.56 years he was incarcerated.
Continuing to pursue his claims against the District of Columbia under the D.C.
Unjust Imprisonment Act, D.C. Code Sec. 2-421 et. seq., he was awarded
$9,154,500 in damages for wrongful conviction, unjust imprisonment, sexual and
physical assaults, contracting HIV, lost income, and physical and psychological
injuries. A D.C. court found that his wrongful conviction and unjust
imprisonment had been a proximate cause of all these damages. It also rejected
an argument that D.C. was entitled to an offset from the award for the amount
of the plaintiff's settlement with the federal government. Odom v. District of
Columbia, #2013-CA-3239, 2015 D.C. Super. Lexis 2.
A prison's Special Management Unit
housed violent prisoners and those with a history of gang involvement while
incarcerated. Those in the unit were confined to their cells 23 hours a day and
allwed one hour daily in a recreation cage. A prisoner claimed that prison
officials engaged in a pattern, practice, or policy of improperly placing
prisoners with known conflicts with each other in the same cell, failing to
intervene when predictable violence erupted between such prisoners, and
improperly restraining prisoners who refuse cell assignments with prisoners
known to be hostile to them. A federal appeals court vacated denial of class
action certification and summary judgment on an Eighth Amendment claim. A
proposed class of inmates placed in special housing unit cells with other
inmates known to be hostile to them despite the facility's knowledge of the
risk of violence from such cell assignments was not overly broad or improperly
defined. A dismissal of a claim under the Federal Tort Claims Act for
negligence was properly dismissed, however, for failure to exhaust available
administrative remedies. Shelton v. Bledsoe, #12-4226, 2015 U.S. App. Lexis 253
(3rd Cir.).
A prisoner being admitted to a federal
penitentiary allegedly told an intake psychologist that he was mentally ill to
the extent that it impaired his ability to function and that he was afraid that
he would be attacked if he was placed in the general population. He was placed
in the general population and was attacked by another prisoner without
provocation on his way to lunch, suffering extensive injuries to his face and
head. He sued the U.S. government under the Federal Tort Claims Act, 28 U.S.C.
Sec. 2674, claiming that the psychologist did not examine all his available
medical documents before releasing him into the general population and that
guards failed to monitor their assigned areas, thereby failing to observe the
assault, all in violation of mandatory regulations. The federal appeals court
overturned summary judgment granted to the government under the discretionary
function exception to liability under the Act. The appeals court found that the
government had failed to meet its burden of showing that the discretion
function exception shielded it from liability as a matter of law under these
circumstances. Keller v. United States, #13-3113, 2014 U.S. App. Lexis
21718 (7th Cir.).
A federal prisoner filed a lawsuit claiming that
he had been placed in administrative detention for 60 days in unlawful
retaliation in violation of the First Amendment for filing a claim under the
Federal Tort Claims Act (FTCA), as well as a claim of failure to protect in
violation of the Eighth Amendment based on an assault on him by another
prisoner. The trial court granted summary judgment for the defendants, based on
the plaintiff's alleged failure to exhaust available administrative remedies
before suing, as required by the Prison Litigation Reform Act, 42 U.S.C.
1997e(a), as well as a ruling that the plaintiff's Eighth Amendment claim was
barred by his decision to file a FTCA claim regarding the assault. A federal
appeals court vacated the trial court's ruling, holding that the failure to
exhaust available administrative remedies should be excused because of specific
allegations that one of the defendants intimidated him from pursuing a
grievance by a threat to transfer him to another facility where she said he
would be attacked and placing him in a special housing unit after he filed his
FTCA claim, and that the FTCA claim did not bar the Eighth Amendment claim
because the FTCA claim was dismissed by the trial court for lack of subject
matter jurisdiction and there was no judgment on the claim. Himmelreich v. Fed.
Bureau of Prisons, #13-4212, 766 F.3d 576 (6th Cir. 2014).
While the trial court held that the plaintiff
prisoner had voluntarily, and with informed consent, signed a form refusing to
have a consultation with a retinal specialist, the appeals court reversed
summary judgment for the defendants. It ruled that there were genuine issues of
material fact as to the validity as well as the scope of the refusal form.
Further proceedings were ordered as to whether any of the individual defendants
acted with deliberate indifference on failing to provide him with medical
treatment for his retinopathy. Kuhne v. FL Dept. of Corrections, #12-13387,
2014 U.S. App. Lexis 2460, 24 Fla. L. Weekly Fed. C 1013 (11th Cir.).
The U.S. government can be sued under the Federal
Tort Claims Act, 28 U.S.C. Sec. 2680(h) for an alleged sexual assault by
guards, according to a unanimous U.S. Supreme Court decision. The statute
waives the federal government's sovereign immunity from tort lawsuits, but
contains exceptions for intentional acts. An exception to the exception extends
the waiver to claims for six intentional torts, including assault and battery
that are based on acts or omissions of an “investigative or law enforcement
officer” “who is empowered by law to execute searches, to seize evidence, or to
make arrests.” The U.S. Supreme Court ruled that this applied to acts of
officers within the scope of their employment when they have legal authority,
regardless of whether the officers are engaged in investigative or law
enforcement activity, or are executing a search, seizing evidence, or making an
arrest. It did apply to a correctional officer's alleged sexual assault on a
prisoner. Millbrook v. United States, #11-10362, 2013 U.S. Lexis 2543.
When an inmate failed to seek to obtain his
medical records until just before the deadline to designate an expert medical
witness for his medical malpractice claim under the Federal Tort Claims Act,
his failure to designate an expert justified staying discovery and then
granting summary judgment to the defendant. Fujita v. United States, #10-10258,
2011 U.S. App. Lexis 4218 (5th Cir.).
Federal prisoners in Beaumont, Texas filed a
lawsuit under the Federal Tort Claims Act challenging the decision made by a
federal prison official not to evacuate the prison in the aftermath of
Hurricane Katrina. The lawsuit was properly dismissed, as the prisoners did not
argue or show that the Eighth Amendment precluded the application of the
discretionary function exception to liability under the Act as applied to this
decision. Additionally, the plaintiffs' argument that the Safe Drinking Water
Act imposed non-discretionary duties that were violated by the decision not to
evacuate was meritless. The decision not to evacuate is exactly the type of
policy decision protected by the discretionary function exception. Spotts v.
U.S., #09-41039, 2010 U.S. App. Lexis 16480 (5th Cir.).
While detained by immigration authorities, a
prisoner claimed that he "persistently" sought treatment for a
bleeding, suppurating lesion. While a Public Health Service (PHS) physician's
assistant and three outside specialists repeatedly advised that he urgently
needed a biopsy, a PHS physician and a commissioned PHS officer allegedly
denied that request. After the prisoner's release from custody, he had tests
that confirmed the presence of metastatic cancer. He filed a lawsuit asserting
both medical negligence claims against the U.S. government under the Federal
Tort Claims Act, 28 U.S.C. 1346, 2671-2680, and constitutional claims against
the individual defendants under Bivens v. Six Unknown Fed. Narcotics Officers,
#301, 403 U.S. 388 (1971). The plaintiff subsequently died, and the lawsuit was
continued by his estate. The U.S. Supreme Court ruled that, under 42 U.S.C.
Sec. 233(a), the Federal Tort Claims Act is the exclusive remedy for any claims
against any PHS employees or officers for damages for personal injury,
including death, arising out of the performance of medical functions while
acting within the scope of employment. As a result, the constitutional claims
under Bivens were barred. Hui v. Castaneda, #08-1529, 130 S. Ct. 1845 (2010).
While a prisoner may not have received attention
for his burns as quickly as he wished, or even as promptly as would be ideal,
there was no deliberate indifference in treating his injuries. Indeed, every
time he sought medical attention, it was provided either immediately or within
a few hours. Additionally, when the prison staff believed that an outside
evaluation of his burns was needed, he was taken to a hospital. The court also
held that the Bureau of Prison's Inmate Accident Compensation procedures set
forth in 28 C.F.R. § 301.101 et seq. was the plaintiff's exclusive remedy
against the government, so that the court lacked jurisdiction to address his
Federal Tort Claims Act claim. Walker v. Reese, #08-60994, 2010 U.S. App. Lexis
2409 (Unpub. 5th Cir.).
A federal prisoner sought damages for injuries
allegedly stemming from exposure to asbestos while working as an electrician
for the prison's custodial maintenance services during his incarceration at
Leavenworth. He claimed that proper protective measures were not taken. Claims
against individual defendants under the Federal Tort Claims Act, 28 U.S.C. §§
2671 et seq., (FTCA), were properly dismissed, as only the U.S. government can
be a defendant under that statute. The defendant government argued, however,
that the plaintiff's exclusive remedy for work related injuries were under the
Inmate Accident Compensation Act. 18 U.S.C. Sec. 4126. Under that statute,
federal prisoners who suffer a work-related injury and who still suffer a
residual physical impairment as a result, can submit a claim for compensation
within 45 days of his release date. If he has fully recovered at that time,
however, he can make no such claim. The statute also allows for claims for
wages actually lost by the prisoner while prevented from doing his work
assignment due to his injury. Because of this statute, the appeals court
concluded, FTCA claims against the federal government were also properly
dismissed. The fact that the inmate had a lengthy sentence, and might die
before he is within 45 days of his release date did not alter the result. The
Inmate Accident Compensation Act, however, does not preclude the prisoner from
bringing individual capacity federal civil rights claims against federal prison
employees for alleged deliberate indifference to a serious risk of harm from
exposure to asbestos or other work-relat6ed injuries, so those claims were
reinstated. Smith v. U.S., #07-3242, 561 F.3d 1090 (10th Cir. 2009).
A federal prisoner failed to establish a claim
for cruel and unusual punishment under the Federal Tort Claims Act (FTCA), 28
U.S.C. § 2401 et seq., since he did not make a showing of physical injury as
required by 28 U.S.C.S. § 1346. Michtavi v. U.S.A., #09-2094, 2009 U.S. App.
Lexis 20872 (Unpub. 3rd Cir.).
In a federal prisoner's medical malpractice
lawsuit under the Federal Tort Claims Act, a doctor's letter submitted did not
meet the court's order that the prisoner submit a certificate of medical merit
to comply with Pennsylvania law. The doctor's letter concerning the prisoner's
heart condition did not state that the treatment provided fell outside the
scope of acceptable professional standards and caused harm, and only stated
that the case merited taking a "closer" look. The lawsuit was
dismissed. Booker v. U.S.A., #1:CV-07-1960, 2009 U.S. Dist. Lexis 27152 (M.D.
Pa.).
Overturning summary judgment for federal prison
officials in a lawsuit under the Federal Tort Claims Act, a federal appeals
court noted that a severe asthma attack can be life-threatening like a heart
attack, so that further proceedings were required on the prisoner's claim that
officials were negligent when he had an asthma attack. There were genuine
issues of fact as to whether the asthma attack was severe enough to show
physical injuries as required by 28 U.S.C.S. § 1346(b)(2) and 42 U.S.C.S. §
1997e(e) for recovery for negligently caused emotional injuries. Perez v.
U.S.A., #08-2807, 2009 U.S. App. Lexis 11071 (Unpub. 3rd Cir.)
In a prisoner's lawsuit under the Federal Tort
Claims Act concerning the alleged loss of his personal property, he failed to
adequately establish a right to recover damages from either the U.S government
or a delivery service, even if all his allegations were true. Johnson v.
U.S.A., #08-20369, 2009 U.S. App. Lexis 7977 (Unpub. 5th Cir.).
Prisoner claimed that correctional officials were
negligent in failing to prevent two other prisoners from stealing his legal
papers, fabricating a false crime they claimed he committed, and offering to
testify against him in exchange for a reduction in their own sentences. The
trial court dismissed the prisoner's claim, brought against the federal
government under the Federal Tort Claims Act. The prisoner also failed to
establish either negligence or intentional infliction of emotional distress by
prison officials. Michtavi v. U.S.A., #4:07-CV-0628, 2009 U.S. Dist. Lexis
18926 (M.D. Pa.).
A detainee suffering from organ failure was taken
to a hospital and restrained there by a handcuff attached to his bed. He died
there from causes unrelated to the handcuffing. A federal appeals court
rejected civil rights claims, holding that the use of handcuffs in these
circumstances was neither punitive nor excessive. There were legitimate and
important security interests involved in keeping detainees or prisoners
adequately restrained while they receive off-site medical treatment. A negligence
claim under the Federal Tort Claims Act was also rejected, in the absence of
any evidence of actual injury flowing from the alleged negligence. At most, the
plaintiff showed that there may have been some "friction marks" on
the detainee's wrists from the handcuffs. Hoyte v. Wagner, #07-4138, 2009 U.S.
App. Lexis 2197 (Unpub. 3rd Cir.).
When federal prison officials charged with
enforcing a non-smoking policy concededly did not do so, the federal government
was not entitled to claim the discretionary function exception to liability
under the Federal Tort Claims Act, 28 U.S.C. Sec. 1346(b) in a lawsuit brought
by a prisoner for exposure to an excessive amount of environmental tobacco
smoke and failure to properly ventilate a federal prison. Summary judgment was
still granted for the government, however, since the prisoner failed to show an
actual injury or a cause and effect relationship between the officials' alleged
negligence and an alleged injury. Abuhouran v. U.S.A., No. 07-2465, 2009 U.S.
Dist. Lexis 8623 (E.D. Pa.).
The possibility of claims for medical negligence
under 42 U.S.C. Sec 233(a) of the Federal Tort Claims Act does not bar the
pursuing of federal civil rights claims for deliberate indifference to serious
medical needs of prisoners, so that such a claim against employees and officers
of the Public Health Service arising out of the death of a prisoner from
allegedly repeatedly untreated penile cancer should not be dismissed. Castaneda
v. Henneford, No. 08-55684, 546 F.3d 682 (9th. Cir. 2008).
When prisoners were injured in a vehicle accident
while on the bus being transported to a work assignment, claims for their
injuries were work-related, had to be filed against the Federal Bureau of
Prisons under the Inmate Accident Compensation Act, 18 U.S.C.S. § 4126, so that
claims the prisoners filed under the Federal Tort Claims Act were properly
dismissed. Baynes v. U.S.A., No. 07-6352, 2008 U.S. App. Lexis 21775 (Unpub.
6th Cir.).
Trial judge properly denied a motion to
dismiss by officers and employees of the Public Health Service in a civil
rights lawsuit for alleged repeated failures to treat a prisoner's penile
cancer, which was claimed to have caused his death. The Federal Tort Claims
Act, 42 U.S.C. Sec. 233(a) does not substitute for federal civil rights claims,
and, accordingly, the court rejected the argument that the defendants were
entitled to absolute immunity on the claims asserted. Castaneda v. Henneford,
No. 08-55684, 2008 U.S. App. Lexis 20812 (9th Cir.).
While a prisoner had received a recommendation
for consideration for a low-altitude housing assignment, his doctor had not
indicated in any way that such an assignment was medically necessary. Further,
there was no showing of deliberate indifference to his complaints about
exposure to second-hand tobacco smoke, since the defendants did investigate his
complaints and try to provide an accommodation. The court found, however, that
these same allegations may have been enough for negligence claims against the
U.S. government under the Federal Tort Claims Act, but that further proceedings
were required to determine whether negligence was shown by the facts. The
prisoner's claims concerning the denial of exercise was rejected, since he
refused opportunities to exercise that he was offered. Ajaj v. U.S.A., No.
07-1073, 2008 U.S. App. Lexis 19786 (10th Cir.).
The plaintiffs in a wrongful death lawsuit
concerning the death of an inmate after he was forcibly removed from his cell
by seven correctional officers sufficient alleged facts which, if true, would
show that the officers violated the prisoner's clearly established Eighth
Amendment rights, so that the defendants were properly denied qualified
immunity on those claims. Additionally, when summary judgment was denied on
certain claims based on the existence of disputed issues of material fact,
there was no jurisdiction to hear an appeal of those denials. Iko v. Raley, No.
07-7569, 2008 U.S. App. Lexis 16607 (4th Cir.).
Federal prisoner could not pursue claims against
Bureau of Prisons personnel for confiscation of his property, items of which
they allegedly either failed to return, destroyed, or gave to another prisoner.
An exception to the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2671 for
damage to property detained by law enforcement officers applies to federal
correctional officers, as recently determined by the U.S. Supreme Court in Ali
v. Fed. Bureau of Prisons, No. 06-9130, 128 S. Ct. 831 (2008), so that there
was no jurisdiction to hear his claims. That provision, found in 28 U.S.C. Sec.
2680(c), is an exception to the FTCA's waiver of sovereign immunity. Gordon v.
U.S.A., No. 06-4961, 2008 U.S. App. Lexis 10850 (Unpub. 3rd Cir.).
Federal appeals court orders further proceedings
as to whether prisoner adequately showed that he suffered physical injuries,
including an asthma attack, after a prisoner who was drunk and smoking
cigarettes was placed in his cell in order to be able to recover mental or
emotional damages as required by 28 U.S.C. Sec. 1346(b)(2) of the Federal Tort
Claims Act, and 42 U.S.C. Sec. 1997e(e) of the Prison Litigation Reform Act.
Perez v. U.S., No. 07-1199, 2008 U.S. App. Lexis 6494 (3rd Cir.).
A federal prisoner transferred from a facility in
Atlanta, Georgia to one in Kentucky allegedly noticed that a number of items
were missing from his property, which the federal Bureau of Prisons had shipped
to his new facility. He filed a lawsuit under the Federal Tort Claims Act
(FTCA), 28 U.S.C. Sec. 1346, seeking recovery of damages. The property involved
included items of religious and nostalgic significance, including two copies of
the Qur'an, a prayer rug, and religious magazines, with an estimated total
value of $177. The U.S. Supreme Court ruled that an exception to the FTCA's waiver
of sovereign immunity for actions of federal employees, which bars liability
arising from the detention of any property "by any officer of customs or
excise or any other law enforcement officer," 28 U.S.C. Sec. 2680(c),
applies to all law enforcement officers, including federal correctional
officers. The Supreme Court therefore upheld the dismissal of the prisoner's
lawsuit. Ali v. Fed. Bureau of Prisons, No. 06-9130, 2008 U.S. Lexis 1212.
Federal government was not liable under the
Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq. for failure to protect a
prisoner from an assault by another inmate on the basis of the alleged failure
of the prison staff to supervise and monitor a stairwell while prisoners were
passing through it. The federal government was entitled to summary judgment
under a "discretionary function" exception to liability under the
Act, as the prisoner failed to show any evidence that there was a mandatory
duty to monitor a specific inmate or the area of the stairwell. Queen v. U.S.A.,
No. 05-3341, 2007 U.S. Dist. Lexis 78823 (D. Kan.).
Because of a discrepancy between an inventory of
inmate property taken at a prior state facility and the inventory taken at a
federal facility to which the inmate was transferred, there was a genuine issue
as to whether the property was "pilfered" while it was in the custody
of federal prison employees, requiring further proceedings on the inmate's
claim under the Federal Tort Claims Act, 28 U.S.C. Sec. 1346(b)(1) for the loss
of his property, a thermos, a pair of eyeglasses, and a pair of sunglasses.
Mathis v. U.S.A., No. 8:05-3000, 2007 U.S. Dist. Lexis 65611 (D.S.C.).
Trial court improperly dismissed prisoner's claim
under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b) and 28 U.S.C. Sec.
2680(a)-(n) seeking damages for a correctional officer's alleged negligent loss
of his property while he was being transferred to a new cell. The federal
appeals court rejected the trial court's ruling that 28 U.S.C. Sec. 2680(c), in
stating an exception to liability under the Act for the detention of goods
"by any officer of customs or excise or any other law enforcement
officer" applied to actions of a correctional officer. That section, the
appeals court ruled, in the phrase "any other law enforcement
officer," only references law enforcement officers who are
"functioning in a capacity akin to that of a customs or excise
officer." The plaintiff's claim, therefore, was not barred by Sec.
2680(c), so further proceedings were required. ABC v. DEF, No. 06-1362, 2007
U.S. App. Lexis 21155 (2nd Cir.).
Appeals court rejects prisoner's argument that
independent contractors, such as a medical center and doctors providing medical
services to federal prisoners were agents of the government. The waiver of sovereign
immunity contained in the Federal Tort Claims Act, 28 U.S.C. Secs. 2671-2680
does not apply to negligent acts of independent contractors. Additionally, even
if the Chief Health Programmer at a facility was found to be a federal
employee, a doctor's alleged negligent action of tearing the prisoner's
stitches while conducting an examination of his eye was a "subsequent
cause," so that any negligence by the Programmer was not the cause of the
prisoner's injuries. The prisoner's claims were therefore properly dismissed.
Lopez-Heredia v. University of Texas Medical Branch Hospital, No. 05-11365,
2007 U.S. App. Lexis 16102 (5th Cir.).
In a lawsuit by a federal prisoner under the
Federal Tort Claims Act, 28 U.S.C. Sec. 2680, concerning an alleged attack on
him by other prisoners, the court ruled that the only proper defendant was the
United States government, rather than the Bureau of Prisons, the defendant the
plaintiff prisoner named. The court therefore properly dismissed the Federal
Tort Claims Act claim. The prisoner also failed to properly state a federal
civil rights claim against defendants who were supervisory prison officials,
since he did not show that they were either involved personally in the
incident, or had carried out an improper policy that caused the injuries he
suffered. The conduct claimed, at most, suggested possible negligence, which is
inadequate for a showing of a violation of constitutional due process. Toledo
v. Bureau of Prisons, No. 06-11265, 2007 U.S. App. Lexis 13441 (5th Cir.).
A Florida prisoner's dental malpractice claim
accrued in 1999 for purposes of a two-year state statute of limitations, since
he then knew that several root canals had failed, even if he did not learn the
exact reason for the failure until later. His malpractice claim, filed in 2002,
was therefore time-barred. The prisoner's Eighth Amendment claim alleging cruel
and unusual punishment could not be pursued against a federal agency under the
Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 2671-80, and accordingly was
properly also dismissed. Trupei v. U.S. Dept. of Justice, No. 06-15005, 2007
U.S. App. Lexis 14641 (11th Cir.).
Federal prison officer did not act within the
scope of his employment during his alleged sexual assault on a female prisoner.
His alleged wrongful actions did not arise from a legitimate employment duty or
goal furthering his employer's interests. The fact that the officer was
successfully criminally prosecuted for abuse of a ward under 18 U.S.C. Sec.
2243(b) did not bar the U.S. government from denying that the officer was
acting outside of the scope of his employment, because a conviction for that
offense did not establish, under Texas state law, that the officer acted within
the scope of his employment. Accordingly, the Federal Tort Claims Act (FTCA),
28 U.S.C. Sec. 1346(b) sovereign immunity waiver did not apply. Shirley v.
U.S., No. 06-10654, 2007 U.S. App. Lexis 11696 (5th Cir.).
The limited waiver of sovereign immunity
contained in the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq. did not
apply to claims concerning the loss of property by a law enforcement officer.
An appeals court upheld the trial court's determination that, in a federal
inmate's lawsuit against federal prison officials for the alleged taking of his
mail and personal property, federal prison officials constituted "other
law enforcement officers," and therefore could not be liability for his
losses. Bruscino v. Pugh, No. 06-1182, 2007 U.S. App. Lexis 9136 (10th Cir.).
While the U.S. government was not liable for the
intentional actions of one federal prison guard who was convicted of sexual
assault of an inmate, there was an issue of material fact as to whether two
other guards, who allegedly brought the inmate to that guard at his request,
giving him unmonitored access to a female prisoner, in violation of prison
regulations, after midnight, led to the assault. Summary judgment denied on
plaintiff prisoner's lawsuit under the Federal Tort Claims Act, 28 U.S.C. Sec.
1346. Davis v. U.S., 3:03-CV-0415, 2007 U.S. Dist. Lexis 11198 (N.D. Tex.).
The Westfall Act, 28 U.S.C. Sec. 2679(b)(1)
provides federal employees absolute immunity from tort claims for actions taken
in the course of their official duties, and gives the Attorney General the
power to certify that a federal employee sued for wrongful or negligent conduct
was acting within the scope of his office or employment at the time of the
incident. Once that certification takes place, the U.S. government is
substituted as the defendant instead of the employee, and the lawsuit is then
governed by the Federal Tort Claims Act. Additionally, if the lawsuit began in
state court, the Westfall Act provides that it shall be removed to federal
court, and renders the Attorney General's certification "conclusive"
for purposes of the removal. Once the certification and removal take place, the
federal court has the exclusive jurisdiction over the case, and cannot decide
to send the lawsuit back to state court. In this case, the U.S. Supreme Court
also ruled that certification can take place under the Westfall Act in
instances where the federal employee sued asserts, and the Attorney General
also concludes, that the incident alleged in the lawsuit never even took place.
Osborn v. Haley, No. 05-593 2007 U.S. Lexis 1323. [N/R]
The federal government, according to a federal
appeals court, has waived immunity for the negligent loss of prisoners'
property by government employees under the Federal Tort Claims Act, 28 U.S.C.
Sec. 1346(b), and subsequent amendments to the Civil Asset Forfeiture Reform
Act, which changed the applicable section of the FTCA, 28 U.S.C. Sec. 2680(c),
did not alter this. Accordingly, the trial court improperly dismissed a lawsuit
for the value of items of property allegedly lost during a prison
"shakedown." Dahler v. U.S., No. 05-4782, 2007 U.S. App. Lexis 664
(7th Cir. January 12, 2007) [N/R]
In federal prisoner's lawsuit claiming that
Bureau of Prisons (BOP) personnel did not enforce anti-smoking policies
restricting smoking to certain designated areas, a federal trial court ruled
that BOP staff had discretion, under the policies and regulations, concerning
carrying out the policies. The court therefore dismissed the complaint based on
the discretionary function exception of the Federal Tort Claims Act (FTCA), 28
U.S.C. Sec. 2680(a). Reed v. U.S., No. 06-CV-096, 2006 U.S. Dist. Lexis 90547
(E.D. Ky.). [N/R]
Prisoner could pursue his claim that Bureau of
Prisons (BOP) officers lost his personal property, since immunity for law
enforcement officers for such losses under the Federal Tort Claims Act (FTCA),
28 U.S.C. Sec. 2680(c) did not apply to those officers. Mendez v. U.S., No.
05-1716, 2006 U.S. Dist. Lexis 76099 (D.N.J.). [N/R]
Prisoner's lawsuit against Bureau of Prisons officer
claiming that his negligence caused the loss of his property was improperly
dismissed by the trial court. The actions of the officer were not covered,
under these circumstances, by an exception, 28 U.S.C. Sec. 2680(c), to the
Federal Tort Claims Act, 28 U.S.C. Secs. 1346 and 2671-2680, waiver of
sovereign immunity. Bureau of Prison officers are not "law enforcement
officers" for purposes of Sec. 2680(c)'s exception to the waiver of
sovereign immunity, the court ruled. U.S. v. Andrews, No. 04-7269, 441 F.3d 220
(4th Cir. 2006) [N/R]
A correctional officer employed by the federal
Bureau of Prisons (BOP) is not a "law enforcement officer" within the
meaning of the Federal Tort Claims Act (FTCA) section, 28 U.S.C. 2680(c) which
excludes from the Act's waiver of sovereign immunity claims for the
"detention of goods" by any officer of customs or excise "or any
other law enforcement officer." As a result, the trial court improperly
dismissed a FTCA lawsuit by a prisoner for the loss of his property which he
claimed was caused by the negligence of a BOP officer. Andrews v. U.S., No.
04-7269, 441 F.3d 220 (4th Cir. 2006). [N/R]
A federal prisoner's lawsuit under the Federal
Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b), 2671-80, alleging that he was
injured as a result of a negligent failure to train him to use machinery safely
during his prison employment was barred by the provisions of the Federal Prison
Industries' Inmate Accident Compensation (IAC) system under 18 U.S.C. Sec.
4126. Cordoba v. Morrison, No. 04-3642, 155 Fed. Appx. 933 (8th Cir. 2005).
[N/R]
Even if alleged confiscation of federal
prisoner's art supplies violated a Bureau of Prisons' regulation, this was
insufficient to state a claim for damages under the Federal Tort Claims Act, 28
U.S.C. Sec. 2680(a), since the discretionary function exception to the statute
applied. The regulation itself made discretionary decisions regarding the
removal and disposal of art and hobbycraft items. Terrell v. Hawk, No. 05-2642,
154 Fed. Appx. 280 (3rd Cir. 2005). [N/R]
In a medical malpractice lawsuit brought against
prison medical personnel under the Federal Tort Claims Act, 28 U.S.C. Secs.
1346(b), 2671-80, a prisoner failed to prove that they were negligent when they
failed to diagnose and treat his deep vein thrombosis. The prisoner complained
of one of the symptoms of suchan illness--shortness of breath--only once before
an attack resulted in him being hospitalized, so that there was no violation of
applicable medical standards. Goines v. Pugh, No. 04-1394, 152 Fed. Appx. 750
(10th Cir. 2005). [N/R]
Federal government was entitled to sovereign immunity
in prisoner's lawsuit claiming that his books and manuscript, mailed to his
home by prison officials, were lost. While he claimed that this was due to
negligence by the federal Bureau of Prisons (BOP) and post office, an exception
to the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 1346(b), 2680(b) for
"loss, miscarriage, or negligent transmission of letters or postal matters"
barred liability. Georgacarakos v. U.S., No. 04-1363, 420 F.3d 1185 (10th Cir.
2005). [N/R]
Inmate's lawsuit under the Federal Tort Claims
Act, 28 U.S.C. Sec. 2401(b) was properly dismissed as untimely when he failed
to file it within six months of the Bureau of Prisons' rejection of his
application for compensation for prison guards' alleged negligence in failing
to protect him from a beating by other inmates. Myles v. US , #02-3944, 2005
U.S. App. Lexis 4646 (7th Cir.). [N/R]
Federal prisoner stated a viable claim against
the U.S. government under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec.
2675(a), for the alleged wrongful confiscation and destruction of his property
by a prison employee. The claim that the prison employee did not follow federal
prison regulations in destroying the property before the inmate had a chance to
establish his ownership of it, however, did not state a constitutional due
process claim when the property was seized from the prison's machine shop
rather than the prisoner's cell and the government provided adequate
post-deprivation remedies. Bigbee v. United States, No. 05-C-66, 359 F. Supp.
2d 806 (W.D. Wis. 2005). [N/R]
Federal appeals court orders additional
proceedings on whether family members of deceased inmate suffered severe
emotional distress, under Oklahoma law, following his death, in a case where
family members were awarded $1.1 million in damages under the Federal Tort
Claims Act based on alleged outrageous conduct in failing to disclose the
battered condition of his body before shipping it to them for burial. Trentadue
v. Lee, No. 01-6444, 397 F.3d 840 (10th Cir. 2005). [2005 JB Apr]
Surviving family of federal prisoner who died
from cancer while incarcerated did not have standing under the Federal Tort
Claims Act, 28 U.S.C. Sec. 2671 et seq., to pursue claims for emotional
distress they allegedly suffered from his death. Gonzalez-Jiminez De Ruiz v.
U.S., #03-10274, 378 F.3d 1229 (11th Cir. 2004). [N/R]
U.S. government could not be sued, under the
Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq., for negligent hiring,
supervision, management, and training of an officer who allegedly raped a
female jail inmate while assigned to transport her between correctional
facilities. Because the underlying claim arose out of the alleged commission of
intentional wrongdoing, the rape, and the FTCA only provides for lawsuits based
on negligence, the U.S. government was immune from the plaintiff's claims.
Martinez v. U.S., No. CV02-1164, 311 F. Supp. 2d 1274 (D.N.M. 2004). [N/R]
Prisoner's claim to recover damages for a sweat
suit worth $25 allegedly negligently lost in federal prison laundry, brought
under the Federal Tort Claims Act, was properly dismissed as frivolous. The
amount of damages sought in a complaint pursued as a pauper, federal appeals
court rules, is a factor which may be taken into consideration in making a
determination of frivolity under the Prison Litigation Reform Act. Nagy v. FMC
Butner, No. 03-6736, 2004 U.S. App. Lexis 15042 (4th Cir.). [2004 JB Sep]
Statute of limitations on former federal
prisoner's claim against the U.S. government under the Federal Tort Claims Act
(FTCA), 28 U.S.C. Secs. 1346, 2671 et seq., for negligence in miscalculating
his release date began to run when he obtained habeas relief from his continued
incarceration, rather than on the date that the miscalculation was allegedly
made. Federal appeals court overturns dismissal of lawsuit as time-barred.
Erlin v. U.S., No. 00-16986, 364 F.3d 1127 (9th Cir. 2004). [N/R]
U.S. government could not be held liable under
Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346, 2671 et seq., for alleged
negligent care provided to a federal prisoner by a doctor who was an
independent contractor rather than an employee. Statute does not authorize
lawsuits against the government for the actions of independent contractors.
Jones v. U.S., 305 F. Supp. 2d 1200 (D. Kan. 2004). [N/R]
Federal prison officials were not liable for the
death of a prisoner beaten to death by two fellow inmates with a fire
extinguisher. Their decisions regarding where to house the prisoner and how to
protect his safety fell within the "discretionary function" exception
to the Federal Tort Claims Act, as those decisions were discretionary and
"grounded in policy," since there was no mandatory course of conduct
for officials to follow. Montez v. U.S., No. 02-6303, 359 F.3d 392 (6th Cir.
2004). [2004 JB Jun]
Dismissal of federal prisoner's claim for alleged
loss of his property due to negligence of prison employees was proper. No such
claim could be brought under Federal Tort Claims Act, and prisoner failed to
exhaust available prison grievance procedure as to any civil rights claim.
Further, mere negligence leading to loss of property cannot be the basis of a
constitutional claim. Steele v. Federal Bureau of Prisons, #02-1492, 355 F.3d
1204 (10th Cir. 2003). [2004 JB May]
Federal appeals court reinstates prisoner's claim
under the Federal Tort Claims Act for negligently caused injuries resulting
from him falling from his top bunk after he was given a medical pass entitling
him to a bottom bunk. Bultema v. U.S., No. 02-3490, 359 F.3d 379 (6th Cir.
2004). [2004 JB May]
Mother of federal prisoner shot and killed while
residing in a halfway house could not pursue her claims that the Bureau of
Prison violated his constitutional right to protection under the terms of the
Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 1346, 2671 et seq. The FTCA does
not waive the sovereign immunity of the U.S. government for constitutional
claims, but rather for negligence. Phillips v. Federal Bureau of Prisons, 271
F. Supp. 2d 97 (D.D.C. 2003). [N/R]
Federal correctional officers were exempt from
liability for damages to prisoner's eyeglasses, sent to prison laundry in
pocket of his coat, during move from his former cell to administrative
segregation. Under Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2680,
officers were entitled to immunity under "detention of goods"
exception to liability, even though they were not aware that the eyeglasses
were in their possession. Bramwell v. U.S. Bureau of Prisons, #02-55516, 348
F.3d 804 (9th Cir. 2003). [N/R]
U.S. government's alleged negligent failure to
supervise experiments in which prisoner's testicles were exposed to high levels
of radiation could not be the basis of liability under the Federal Tort Claims
Act, since such failure fell within a "discretionary function"
exception to the Act. Bibeau v. Pacific Northwest Research Foundation, Inc.,
No. 01-36147, 339 F.3d 942 (9th Cir. 2003). [2003 JB Nov]
Prisoner's libel and slander claims
against federal prison employee for calling him a liar and a "vexatious
litigant with a morally deviant character" could not be pursued under the
Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2671 et seq., since that statute
specifically exempts defamation claims. Beckwith v. Hart, 263 F. Supp. 2d 1018
(D. Md. 2003). [N/R]
No liability for federal prison officials for
death of prisoner stabbed by another inmate following a fight over a chess
game. Having one officer supervising 219 inmates with violent propensities
during a facility-wide move did not, by itself, establish either a violation of
civil rights or negligence under the Federal Tort Claims Act, in the absence of
any expert testimony or other evidence that this caused the assault. Officer
did not act with deliberate indifference to assaulted prisoner's serious
medical needs when he summoned help as soon as he learned of the stabbing.
Robinson v. U.S. Bureau of Prisons, 244 F. Supp. 2d 57 (N.D.N.Y. 2003). [2003
JB Jul]
Federal prisoner's civil rights claims concerning
alleged confiscation of his wheelchair and destruction of his leg braces, along
with discontinuation of his physical therapy following transfer to a new
facility, were properly dismissed for failure to exhaust available
administrative remedies. Prisoner submitted requests for administrative
remedies to warden and then sent new requests to Regional Director instead of
submitting appeals to the Regional Director, and no appeals were ever made to
the Director of National Inmate Appeals. Federal Tort Claims Act (FTCA), 28
U.S.C. Sec. 2401(b) claims not filed within 6 months of receiving notice of
administrative agency denial were time barred. Smith v. U.S., #02-1172, 53 Fed.
Appx. 514 (10th Cir. 2002). [N/R]
Indiana state law did not impose any duty on the
federal Bureau of Prisons to assist a diabetic employee who was involved in a
fatal auto accident while driving home after becoming ill at work. Defendant
had no responsibility to give him medical assistance, prevent him from leaving,
or provide him with transportation home. No liability for employee's death
under the Federal Tort Claims Act, 28 U.S.C. Sec. 2680(a). Stockberger v. United
States, 225 F. Supp. 2d 949 (S.D. Ind. 2002). [N/R]
298:155 Trial judge's award of $1.8
million in damages for suicide of pre-trial detainee in federal jail
overturned; suicide after six months of incarceration was not foreseeable when
prisoner had no known prior history of suicide attempts or thoughts; award of
$1.6 million for pain and suffering while hanging to death was excessive when
no reasoning for the award was offered by the court. Jutzi- Johnson v. United
States, #00-2411, 263 F.3d 753 (7th Cir. 2001).
289:6 Federal prisoner could not sue doctors
employed by the Public Health Service for violation of his constitutional
rights; a lawsuit against the U.S. government under the Federal Tort Claims Act
was his exclusive remedy for any problems arising from his medical treatment by
them. Seminario Navarrete v. Vanyur, 110 F. Supp. 2d 605 (N.D. Ohio 2000).
[N/R] Defamation exception to the Federal Tort
Claims Act (FTCA) barred federal correctional officer's intentional tort claim
that was not different in any way from his already dismissed defamation claim.
Brumfield v. Sanders, No. 00-3275, 232 F.3d 376 (3rd Cir. 2000).
258:86 Federal prison did not act negligently in
failing to prevent prisoner's exposure to TB bacteria when precautions complied
with Centers for Disease Control guidelines. McNeal v. United States, 979
F.Supp. 431 (N.D.W.Va. 1997).
[N/R] Former prisoner could not bring lawsuit
under Federal Tort Claims Act based on her allegedly improper detention in
federal custody following expiration of her state sentence; federal prison
officials were also entitled to qualified immunity since it was not clearly
established that she was entitled to credit against her federal sentence for
the time she spent in state custody. Puccini v. U.S., 978 F.Supp. 760 (N.D.
Ill. 1997).
Plaintiff inmate did not "exhaust" his
administrative remedies before filing a lawsuit against the U.S. government
under the Federal Tort Claims Act; fact that plaintiff's administrative claim
was rejected after such a suit was filed did not alter requirement that suit be
dismissed as prematurely filed. McNeil v. U.S., 113 S.Ct. 1980 (1993).