Joshua Rich v. United States , 811 F.3d 140 ( 2015 )


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  •                               PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 14-7204
    JOSHUA RICH,
    Plaintiff - Appellant,
    v.
    UNITED STATES OF AMERICA,
    Defendant - Appellee.
    Appeal from the United States District Court for the Northern
    District of West Virginia, at Martinsburg.     Gina M. Groh,
    District Judge. (3:13-cv-00137-GMG-RWT)
    Argued:   October 27, 2015                Decided:   December 29, 2015
    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.
    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.
    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
    2
    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
    1Unless otherwise indicated, the facts in Section I are
    undisputed.
    2The government disputes Rich’s account of his time at the
    various penitentiaries and the reasons for his separation from
    other inmates, arguing that Rich’s prior Special Housing Unit
    placements were unrelated to the Aryan Brotherhood.       As we
    explain in Section II.B., this dispute of fact is immaterial to
    our conclusions.
    3
    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
    3
    The government does not dispute the size of the knife
    recovered from the scene of the attack, though its exact size is
    nowhere in the record.    Although the government refers to the
    investigative report for Rich’s attack as in the record on page
    169 of the joint appendix, we are unable to locate page 169.
    Nor is the investigative report included in any other part of
    the record.
    4
    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
    4
    “Post Orders” are specific to each institution, based on
    BOP policy, and state each post’s duty hours as well as any
    special instructions unique to that post. See U.S. Dep’t of
    Justice Program Statement No. 5500.14, section 103 (2012),
    http://www.bop.gov/policy/progstat/5500_014.pdf (describing post
    orders).
    5
    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
    5
    The Correctional Services Manual is not a part of the
    record before this Court.
    6
    The district court noted that Rich only objected to the
    report and recommendation of the magistrate judge with respect
    to whether the prison officials performed their searches
    properly.   Accordingly, the court simply adopted the magistrate
    judge’s conclusion regarding separation.
    6
    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
    7
    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
    8
    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 (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.
    A    defendant’s      assertion   that    the    discretionary          function
    exception applies is an assertion that the court lacks subject
    matter jurisdiction.            See Indem. Ins. Co. of N. Am. v. United
    States,     
    569 F.3d 175
    ,   180   (4th    Cir.    2009).        In    challenging
    subject     matter    jurisdiction,      a    defendant      may     raise    a    facial
    challenge that, even if all the alleged facts are true, the
    9
    complaint       nonetheless        fails    to   establish    jurisdiction.            See
    
    Durden, 736 F.3d at 300
    .
    Alternatively, a defendant may dispute the allegations in a
    complaint       that    could      establish     subject     matter     jurisdiction.
    Kerns v. United States, 
    585 F.3d 187
    , 192 (4th Cir. 2009).                              In
    that situation, the court may go beyond the allegations in the
    complaint and “in an evidentiary hearing determine if there are
    facts to support the jurisdictional allegations.”                          
    Id. Under such
    circumstances, the complaint’s allegations ordinarily are
    not afforded a presumption of truthfulness.                       
    Id. If, however,
    the jurisdictional facts are intertwined with the facts central
    to the merits of the complaint, “a presumption of truthfulness
    should       attach    to    the   plaintiff’s     allegations.”          
    Id. at 193.
    And, most relevant here, the court “should resolve the relevant
    factual disputes only after appropriate discovery.”                        In re KBR,
    Inc.,    Burn     Pit       Litig.,   
    744 F.3d 326
    ,    334    (4th    Cir.       2014)
    (citation omitted).
    B.
    We    first     address       whether      the     discretionary        function
    exception applies to the prison officials’ placement of Rich in
    the recreation cage with his attackers, and whether Rich was
    entitled to discovery on this claim.                       To do so, we consider
    whether the challenged governmental conduct involves an element
    of judgment or choice and, if so, whether that judgment was
    10
    based on considerations of public policy.                          
    Gaubert, 499 U.S. at 322
    –23.
    The       BOP    is      required    to    provide     for     the    “protection,”
    “safekeeping,”            and     “care”    of    “all     persons       charged    with       or
    convicted of offenses against the United States.”                               18 U.S.C. §
    4042(a)(2), (3).              Under the statute’s broad directives, the BOP
    retains          discretion        regarding       the     implementation          of        those
    mandates.             Cohen v. United States, 
    151 F.3d 1338
    , 1342 (11th
    Cir.    1998).            This    discretion      is     evident    in    the   regulations
    regarding the proper handling and review of the Central Inmate
    Monitoring (CIM) files.
    The CIM system is the mechanism by which the Bureau of
    Prisons monitors and controls the transfer, temporary release,
    and community activities of certain inmates who present special
    needs for management, including the need to separate certain
    inmates from others based on their past behavior.                            See 28 C.F.R.
    §   524.70–76.             Although    28    C.F.R.       § 524.72(d)       provides         that
    inmates “may require separation from a specific disruptive group
    [such    as       a    prison     gang]”    (emphasis       added),      nothing    in       this
    regulation requires that any specific action be taken by the
    various          prison      officials.          Instead,     prison       officials          must
    consider several factors and exercise independent judgment in
    determining           whether     inmates    may       require     separation.          See     28
    C.F.R.       §     524.72(f).         Given       this     general       language       in    the
    11
    regulations, we conclude that prison officials exercise broad
    discretion in this regard and, thus, that the first prong of the
    discretionary function exception is satisfied.
    We turn to consider the second element of the discretionary
    function     exception,     namely,       whether       considerations       of    public
    policy     are    implicated      in     the     discretion        given     to    prison
    officials in their decisions about the separation of prisoners.
    See 
    Gaubert, 499 U.S. at 322
    –23.                  Although this is an issue of
    first impression in this Court, other federal appellate courts
    have held that prisoner placement and the handling of threats
    posed by inmates against one another are “part and parcel of the
    inherently       policy-laden         endeavor     of     maintaining        order    and
    preserving security within our nation’s prisons.”                            
    Cohen, 151 F.3d at 1344
    ; see also Alfrey v. United States, 
    276 F.3d 557
    ,
    563-65 (9th Cir. 2002); Calderon v. United States, 
    123 F.3d 947
    ,
    951   (7th   Cir.    1997).       Factors        such    as     available    resources,
    proper     classification        of     inmates,        and   appropriate         security
    levels     are   “inherently          grounded     in     social,    political,        and
    economic policy.”          Dykstra v. U.S. Bureau of Prisons, 
    140 F.3d 791
    , 796 (8th Cir. 1998); cf. Bell v. Wolfish, 
    441 U.S. 520
    ,
    547-48 (1979) (“Prison administrators . . . should be accorded
    wide-ranging deference in the adoption and execution of policies
    and   practices     that    in   their    judgment        are    needed     to    preserve
    12
    internal     order     and    discipline       and    to     maintain       institutional
    security.”).
    We agree with the reasoning of our sister circuits.                            Prison
    officials are afforded discretion in determining where to place
    inmates      and    whether     to    keep        certain     individuals       or        gangs
    separated     from    one    another.         Because        these    decisions       invoke
    several    policy     considerations         for     prison    administrators,             they
    are precisely the kind of determinations that the discretionary
    function exception is intended to protect.                           We therefore hold
    that   the    discretionary      function          exception     shields      the     prison
    officials from liability with respect to whether they should
    have separated Rich from his attackers.
    We also conclude that Rich is not entitled to discovery on
    this issue.         Even accepting all of Rich’s allegations regarding
    his    history       with     the     Aryan         Brotherhood        as     true,         the
    discretionary        function       exception        still     would    apply        to     the
    decisions      of     the     officials       regarding         prisoner       placement,
    ultimately depriving us of jurisdiction.                       And because no facts
    that    Rich        could     uncover     in        discovery        would      establish
    jurisdiction, we hold that the district court did not abuse its
    discretion in refusing Rich discovery regarding the officials’
    decision to not separate Rich from his attackers.                            See 
    Durden, 736 F.3d at 307-08
    .
    13
    C.
    We reach a different conclusion regarding the availability
    of discovery with respect to Rich’s allegations that the prison
    officials did not search his attackers properly before placing
    them in the recreation cage.           Unlike the allegations underlying
    Rich’s claim regarding the prison officials’ duty to separate
    Rich from his attackers, which failed on their face to establish
    subject matter jurisdiction, disputed jurisdictional facts are
    intertwined    with    the   merits    of    Rich’s    claim   regarding    the
    execution of the patdowns.       See 
    Kerns, 585 F.3d at 193
    .
    For   example,    in   support    of   the   government’s    motion    to
    dismiss, the prison officials provided declarations that they
    did in fact perform patdowns of the inmates involved on the date
    of the incident.       Those declarations stand in direct contrast to
    Rich’s allegation that the officials “failed to properly screen,
    ‘wand,’ or search inmates entering the SHU and/or SHU recreation
    cages.”     That allegation is relevant not only to whether the
    discretionary function exception applies and, thus, whether we
    have subject matter jurisdiction over this claim, but also to
    the merits of Rich’s negligence allegation.
    We find no merit in the government’s argument that Rich did
    not   allege   that    the   prison    officials      completely   failed    to
    patdown or “wand” his attackers, but alleged only that these
    searches were not done properly.             Rich’s complaint can be read
    14
    fairly to allege both that the officials did not perform the
    searches properly, and that the officials failed to perform the
    searches     in       any   manner.         Rich   maintained    this     position
    throughout the litigation.             A period of discovery would afford
    Rich the opportunity to challenge these officials’ assertions
    concerning their performance of the searches.
    Even        if    we   accept    the    prison      officials’   uncontested
    declarations, the fact that they performed patdowns does not
    resolve     the       question   whether     the   officials    performed      those
    patdowns properly.           The BOP’s Program Statement provides that
    “[a]ny     pat    search     shall    be     conducted    as   outlined   in     the
    Correctional Services Manual,” suggesting the existence of more
    specific directives.             Rich should be permitted the opportunity
    for discovery of that Correctional Services Manual to determine
    whether      more        specific     directives      exist     concerning       the
    performance of patdowns. 7
    7 We do not decide whether, even in the absence of more
    specific mandates, the manner in which a patdown is performed
    qualifies for the discretionary function exception.     We note,
    however, that the government offers no limiting principle to its
    rationale as to when the exception should apply.        There is
    always some level of discretion regarding the performance of
    even the most specific of mandates, which under the government’s
    argument would mean that the discretionary function exception
    would always apply. Moreover, the government could only suggest
    reasons of “security” generally as the policy consideration
    involved in the manner of performing patdowns.
    15
    Additionally, when inmates have a prior history of weapons
    possession, the Post Orders require a “visual search” of those
    inmates, involving a search of the body cavity, prior to their
    entry into a recreation cage.                    Discovery could uncover whether
    any of Rich’s attackers had a history of weapons possession that
    would have triggered this visual search requirement.                                    Such an
    additional mandate would affect any analysis concerning whether
    the prison officials properly performed searches as required. 8
    Finally,        we     observe    that    Rich    may    be    able       to    establish
    jurisdiction            even     if,     under        typical        circumstances,         the
    discretionary function exception applies to the manner in which
    prison       officials        perform    patdowns.         The       Second       Circuit    has
    acknowledged that discretionary conduct cannot be grounded in a
    policy       decision         when   that    conduct     is     marked       by       individual
    carelessness or laziness.                See Coulthurst v. United States, 
    214 F.3d 106
      (2d    Cir.     2000)      (concluding       that    the     discretionary
    function         exception       would    not    apply    to     a    prison          official’s
    inspection of faulty weight equipment that caused plaintiff’s
    injuries         if    that    inspection       was    performed       in    a    “carelessly
    8
    At oral argument, the government contended that providing
    certain types of information to inmates, such as camera
    placements and security methods employed by prison officials,
    would present serious safety risks by allowing inmates to
    uncover any potential holes in prison safety procedures. We are
    confident that the district court can implement appropriate
    measures during the course of discovery to prevent any
    unnecessary disclosure of critical security information.
    16
    inattentive” manner).         The fact that a nine-inch-long knife was
    recovered at the scene of Rich’s attack, in spite of the prison
    officials’ averments that each performed the required searches
    properly,    at     least     suggests          the   possibility        of   careless
    inattention.       In that case, the prison officials would not be
    shielded    by    the    discretionary       function       exception     because    no
    policy considerations would be implicated.
    Discovery          provides     a     procedural         safeguard       when    a
    jurisdictional      inquiry        would    require         the   consideration      of
    merits-based      evidence.        See     
    Kerns, 585 F.3d at 193
    .     This
    safeguard does not disappear simply because the plaintiff is a
    prisoner.    Of course, courts frequently apply the discretionary
    function exception to prison officials’ efforts to ensure the
    safety of prisoners under difficult circumstances, e.g., 
    Cohen, 151 F.3d at 1344
    ; 
    Alfrey, 276 F.3d at 564-67
    ; 
    Calderon, 123 F.3d at 949-51
    , and that may be the ultimate outcome here as well.
    Nevertheless, we conclude that Rich is entitled to the safeguard
    of discovery before his complaint is dismissed.
    Because the jurisdictional facts regarding the propriety of
    the prison officials’ patdowns are intertwined with the merits
    of Rich’s allegations, the district court “should resolve the
    relevant factual disputes only after appropriate discovery.”                         In
    re KBR, 
    Inc., 744 F.3d at 334
    (citation omitted).                        Accordingly,
    we vacate in part, and remand, to allow Rich to proceed to
    17
    discovery    on   the   issue   whether     and    how     the    prison   officials
    performed the patdowns and searches, and whether more specific
    directives    existed     regarding    the        manner     of    performing    the
    patdowns and searches.
    III.
    For these reasons, we affirm the district court’s decision
    that the discretionary function exception applies to the prison
    officials’ decision not to separate Rich from his attackers.
    However, we vacate the district court’s judgment with respect to
    the issue of the prison officials’ performance of the patdowns
    and searches, and remand for additional proceedings consistent
    with this opinion.
    AFFIRMED IN PART,
    VACATED IN PART,
    AND REMANDED
    18