Donaldson v. United States , 281 F. App'x 75 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
6-2-2008
Donaldson v. USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3265
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 06-3265
____________
SADRICK DONALDSON,
Appellant,
v.
UNITED STATES OF AMERICA,
Appellee.
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
D.C. No. 04-cv-00257E
District Judge: Honorable Sean J. McLaughlin
____________
Submitted Under Third Circuit LAR 34.1(a)
May 23, 2008
Before: SMITH, HARDIMAN and NYGAARD , Circuit Judges.
(Filed: June 2, 2008)
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
Sadrick Donaldson appeals from an order of the District Court that: (1) adopted
the Magistrate Judge’s Report and Recommendation (R&R) that his claim be dismissed
under the Federal Tort Claims Act (FTCA) and (2) denied his motion to amend the
complaint to sue the Attorney General of the United States. We will affirm.
I.
Because we write for the parties, we recount only those facts essential to our
decision.
While incarcerated at FCI-McKean, Donaldson felt threatened by a fellow inmate
and former paramour, Eric Drayton. In November 2002, Donaldson expressed his
concern to prison officials and was placed in the Special Housing Unit at his request.
After investigating the alleged threat and concluding that there was no credible evidence
of any threat to Donaldson’s safety, prison officials returned him to the general
population in February 2003. Six months later, Drayton walked into a classroom and
threw a hot mixture of pepper and baby oil into Donaldson’s face, causing him first and
second degree burns to his eyes, face, scalp, and shoulders.
Donaldson first argues that the District Court erred when it adopted the Magistrate
Judge’s recommendation that his FTCA claim should be dismissed pursuant to the
discretionary function exception to the FTCA’s waiver of sovereign immunity. The R&R
specifically advised Donaldson that he had ten days to file objections, and that failure to
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do so “may constitute a waiver of any appellate rights.” Although Donaldson failed to
object, he “has not waived [his] right to object in this court to the legal conclusions
contained therein.” See United Steelworkers of Am. v. New Jersey Zinc Co., Inc., 828
F.2d 1001, 1006 (3d Cir. 1987). Instead, he has waived his right to plenary review of the
District Court’s order and we will review for plain error. See Nara v. Frank, 488 F.3d
187, 194 (3d Cir. 2007).1
To ascertain the applicability of the discretionary function exception, we first
determine whether the challenged conduct involves an “element of judgment or choice.”
See Mitchell v. United States, 225 F.3d 361, 363 (3d Cir. 2000). If it does, we then
consider “whether that judgment is of the kind that the discretionary function exception
was designed to shield.” Id. (citations omitted).
“Before we can make the two-part . . . inquiry to determine whether the
discretionary function exception immunizes the Government from a suit based on its
conduct, we must identify the conduct at issue.” Merando v. United States, 517 F.3d 160,
165 (3d Cir. 2008). Here, Donaldson alleges that the Bureau of Prisons (BOP)
“repeatedly ignored his reports of sexual harassment and threats of violence” and failed to
protect him from Eric Drayton.
1
Donaldson insists that we may apply whatever standard of review we wish
pursuant to Leyva v. Williams, 504 F.3d 357, 364 (3d Cir. 2007). Leyva is inapposite
because the pro se litigant in that case was not notified, as Donaldson was, that he would
lose appellate rights if he failed to object to the R&R.
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“Now that we have identified the Government’s conduct at issue in this case, we
determine whether the discretionary function exception immunizes it from a lawsuit based
on that conduct.” Id. at 168. This inquiry requires us to “decide whether a statute,
regulation, or policy required” the BOP to protect Donaldson “in any specific manner, or
whether the Government’s actions were discretionary because they involved an element
of judgment or choice.” Id. (citation and internal quotation marks omitted).
Here, the conduct at issue was governed by a federal statute which requires the
BOP to provide for the “protection” and “safekeeping” of inmates in its care. See 18
U.S.C. § 4042(a)(2), (3). The District Court correctly determined that this statute leaves
the implementation of these duties to the discretion of BOP officials. Additionally,
various federal regulations require the BOP to “control inmate behavior” and “take
disciplinary action” when necessary, but they leave it to the BOP’s discretion as to how to
accomplish those goals. See 28 C.F.R. § 541.10(a); see also 28 C.F.R. § 541.22(a)
(providing that the BOP “may” remove an inmate from the general population for safety
reasons). No federal statute, regulation, or policy required the BOP to take a particular
course of action to ensure Donaldson’s safety from attacks by other inmates, including
Drayton. Therefore, the first step of the Mitchell analysis is satisfied. See Cohen v.
United States, 151 F.3d 1338, 1342 (11th Cir. 1998) (explaining that “even if § 4042
imposes on the BOP a general duty of care to safeguard prisoners, the BOP retains
sufficient discretion in the means it may use to fulfill that duty to trigger the discretionary
4
function exception.”). Accord Ashford v. United States, 511 F.3d 501, 505 (5th Cir.
2007); Montez ex rel. Estate of Hearlson v. United States, 359 F.3d 392, 396-98 (6th Cir.
2004); Santana-Rosa v. United States, 335 F.3d 39, 43-44 (1st Cir. 2003); Dykstra v.
United States Bureau of Prisons, 140 F.3d 791, 795-96 (8th Cir. 1998); Calderon v.
United States, 123 F.3d 947, 948-50 (7th Cir. 1997).
Turning to the second prong of the Mitchell test, we conclude that the judgment
involved in this case — i.e., how best to protect one inmate from the threat of attack by
another — “is of the kind that the discretionary function exception was designed to
shield.” Mitchell, 225 F.3d at 363. Prison administrators should be afforded wide-
ranging deference in implementing and executing their policies because their discretion is
needed to preserve internal discipline and maintain institutional security. Bell v. Wolfish,
441 U.S. 520, 547-48 (1979). Supreme Court authority underscores the principle that
prison officials have discretionary power over the safety of the institutions they operate.
See Rhodes v. Chapman, 452 U.S. 337, 349 n.14 (1981); see also Whitley v. Albers, 475
U.S. 312, 321-22 (1986).
Likewise, courts of appeals have applied the discretionary function exception to
bar an inmate’s claims for injuries he received while incarcerated. See Calderon, 123
F.3d at 948, 951 (discretionary function exception barred FTCA claim despite evidence
that BOP officials knew of the threat to inmate and took no steps to protect him); Cohen,
151 F.3d at 1344 (discretionary function exception shielded the BOP from FTCA
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liability, where an inmate that the BOP had misclassified attacked and injured the
plaintiff); Alfrey v. United States, 276 F.3d 557, 565 (9th Cir. 2002) (where BOP
officials’ decision not to relocate an inmate in the face of death threats from his cellmate
resulted in the inmate’s death, “what steps to take in response to a reported threat”
required correctional officers to “set priorities among all extant risks: the risks presented
by the reported threat, along with the other risks that inevitably arise in a prison,” all of
which “implicate social and public-policy considerations.”). In accordance with these
authorities, we find that the BOP’s decisions about how to protect Donaldson from
Drayton are the kinds of judgments that the discretionary function exception was
designed to protect.2
For the foregoing reasons, we find that the District Court did not err in holding that
the discretionary function exception to the FTCA shields the United States from liability
in this case.
II.
Donaldson next argues that the Magistrate Judge erred in denying him leave to
amend his complaint to add sixteen BOP employees as defendants because they “violated
2
We also reject Donaldson’s contention that the use of prison officials’ individual
judgments as to how the Drayton threat should have been handled removed their
decisions from the sphere of public policy. See Alfrey, 276 F.3d at 566 (finding that,
although BOP officials’ decisions involved professional judgment, “that fact alone does
not remove the decisions from the realm of policy-based judgments”); see also Calderon,
123 F.3d at 950-51 (observing that even ordinary “day to day” decisions by BOP officials
involve “considerations of public policy”).
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[his] Constitutional Rights.” That issue, however, is not before this Court because
Donaldson failed to appeal the Magistrate Judge’s February 24, 2005 Order denying him
leave to amend. Instead, Donaldson only appealed the District Court’s May 16, 2006
Order which dismissed his FTCA claim and denied his motion to amend the complaint to
add the Attorney General of the United States.
Donaldson does not argue on appeal that the District Court erred in denying him
leave to bring a claim against the Attorney General. Had he done so, we would affirm for
the same reason as the District Court.
For all of the foregoing reasons, we will affirm the judgment of the District Court.
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