Parrott, Roy S. v. United States

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1489
ROY SYLVESTER PARROTT,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Terre Haute Division.
No. 2:03-cv-00026—Richard L. Young, Judge.
____________
ARGUED SEPTEMBER 19, 2007—DECIDED JULY 30, 2008
____________
Before BAUER, MANION, and WOOD, Circuit Judges.
WOOD, Circuit Judge. This appeal marks this court’s
second encounter with Roy Sylvester Parrott. On July 11,
2001, Parrott, then incarcerated at the U.S. Penitentiary in
Terre Haute, Indiana, was stabbed 22 times in the face,
head, and arm by another inmate, Kenneth Gregory. As a
result of the attack, Parrott suffered serious lacerations to
his forehead, ear, shoulder, and eyes. Shortly after his
release from the hospital some two weeks later, Parrott
was in the process of being transferred to Wallens Ridge,
a state prison in Virginia. Though Parrott eventually
2 No. 06-1489
made it to the new institution, his personal property did
not. Instead, Bureau of Prisons (“BOP”) staff at the Terre
Haute institution sent Parrott’s property to his sister,
who lives in the Virgin Islands and who, because of the
policies at Wallens Ridge, is now forbidden to send
Parrott’s property back to him. BOP insists that Parrott
instructed its staff to ship the property to his sister. Parrot
retorts that he did no such thing. Because prison officials
at Terre Haute negligently mishandled his property and
sent it away without his permission, Parrot argues, it is
now lost to him for good.
These events prompted Parrott to sue the United
States and several BOP employees under the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-2680, for
(1) failure to protect him from being attacked by another
inmate, and (2) negligent handling of his personal prop-
erty. The district court dismissed the United States and
several individual defendants after pre-screening the
complaint under 28 U.S.C. § 1915A, and then it granted
summary judgment in favor of the remaining defendants.
Parrott appealed, and this court held that the claims against
the individual employees were properly dismissed, but
that those against the United States should have been
retained. We thus sent the case back to the district court for
further proceedings on Parrott’s FTCA claims against the
United States. See Parrott v. Gehrke, 103 F. App’x 908 (7th
Cir. 2004) (Parrott I).
The remand resulted in a grant of summary judgment
against Parrott on both of his claims. In addition to chal-
lenging that ultimate decision on appeal, Parrott, who
represented himself pro se throughout the district court
proceedings, also argues that the district court erred
when it denied various discovery motions. Parrott asserts
No. 06-1489 3
that the district court’s handling of discovery provides
an independent basis for reversal, particularly on the
failure-to-protect claim. We agree with him, and we
therefore remand the case to the district court once
again for further discovery on the question whether
BOP officials negligently failed to protect Parrott from
Gregory’s assault.
I
Because this case reaches us on summary judgment
for the United States, we construe the facts and draw all
inferences in the light most favorable to Parrott. Steen v.
Myers, 486 F.3d 1017, 1021 (7th Cir. 2007). Parrott’s term of
incarceration at the federal prison in Terre Haute began
in May of 1997. As we noted in Parrott I, his claims arise
from two separate events. First, on July 11, 2001, as Parrott
was working in the kitchen with Kenneth Gregory, his
former cellmate, Gregory attacked Parrott with a kitchen
knife and inflicted multiple stab wounds to Parrott’s face,
head, arms, and chest. This assault was, unfortunately,
predictable in light of the bad blood that had existed
between Parrott and Gregory for at least a year. The two
became cellmates on January 17, 2000, sharing quarters
in the Prison’s Special Housing Unit (“SHU”), to which
inmates are assigned for disciplinary segregation and
administrative detention. During their time as cellmates,
Gregory happened to learn the name and address of
Parrott’s ex-girlfriend, Jennifer Mechling. A few months
later, Gregory was assigned to a different cell. From there,
armed with Mechling’s contact information, Gregory began
to write harassing letters to her. Parrott learned of these
letters in April of 2000 and complained to BOP at that time.
4 No. 06-1489
Within a couple months of Parrott’s complaint to BOP
about Gregory, the Prison placed the two former cell-
mates in a recreation area together. (The record is not
clear on the details of inmates’ recreation time, but it
suggests that such time is strictly regimented, and that
some prisoners remain completely isolated, while others
are permitted to share the “recreation cage” with other
inmates.) As prison officials removed Parrott’s restraints,
Parrott began to strike Gregory, who remained in cuffs
and therefore did not strike back. Prison officials quickly
intervened to separate and restrain both men, neither
of whom was injured in the incident, and neither of
whom was disciplined as a result of the confrontation.
That same date, June 7, 2000, Terre Haute Warden Harley
G. Lappin prepared a “Report of the Incident,” describing
the altercation between Parrott and Gregory and the
Prison’s response to it. Though the Government eventually,
after repeated requests from Parrott, produced two ver-
sions of this report during the proceedings below, both
versions are heavily redacted. (Indeed, more has been
removed than has been left for review.) They indicate that
the inmates involved in the incident were placed in sepa-
rate cells following the confrontation, and they also reflect
that Parrott’s “CIMS Category” was “Separation.” (“CIMS”
refers to BOP’s Central Inmate Monitoring System. See 28
C.F.R. §§ 524.70-76. We explain the significance of “Sepa-
ration” status in a moment.) The report reflected that it was
to be placed in the “Inmate Central File” and noted that the
incident was, at the time the report was made, under
further investigation. In both versions of the report that are
in the record, any and all information about Gregory has
been redacted by BOP.
Because of the redactions, all we can infer is that Parrott
was to be separated from someone; there is no way to tell
No. 06-1489 5
from whom. According to the relevant regulations, a
CIMS classification of “Separation” designates “[i]nmates
who may not be confined in the same institution (unless
the institution has the ability to prevent any physical con-
tact between the inmates concerned) with other specified
individuals” in federal custody. 28 C.F.R. § 524.72(f)
(emphasis added). Thus, if at the time prison staff
placed Parrott and Gregory together in the recreation
area the two were on separation status from each other,
then the Terre Haute officials violated BOP’s own regula-
tions and orders. We do not know whether this was the
case, for BOP redacted that information from the reports
provided to Parrott, and the district court refused either
to compel the production of a non-redacted version or
even to view the full report in camera to see if it revealed,
as Parrott suspects, that Gregory was indeed the
“specified individual” referenced in Parrott’s separation
order.
After the June 7, 2000, dust-up, Parrott remained in the
SHU until July 5, 2001, when he was returned to the
Prison’s general population. There is some dispute over
the question whether, at that time, Parrott signed a state-
ment indicating that he wished to return to the general
population and had no concerns regarding that return,
and purporting to release prison staff from liability in
the event that Parrott was “killed or injured” as a result.
Parrott denies signing such a document, and further
argues that the alleged waiver would be ineffective to
relieve BOP of liability even if he had signed something.
BOP takes the opposite position, but since the dispute
over signing is a question of fact, we must assume at this
stage that Parrott signed no such thing. Parrott did not
know at the time of his release that Gregory, too, was back
in the general population.
6 No. 06-1489
Parrott certainly found out no more than six days later,
on July 11, 2001, that Gregory was back in circulation. On
that day, the Prison assigned Parrott and Gregory to the
same work detail in the kitchen, and Gregory’s attack
occurred. The record contains photographs taken after the
incident. These show the extent of Parrott’s wounds,
which included a half-inch gash in the center of his head,
and deep cuts above his left eye. Parrott was hospitalized
for approximately two weeks following the incident. Also
after the incident, BOP Special Investigative Assistant Terry
Coleman prepared an Investigative Report dated August 2,
2001, for Warden Lappin; Coleman’s report confirmed that
the separation order previously in effect (as indicated on
Lappin’s June 7, 2000, report) remained in place at the time
of the kitchen assault on July 11, 2001. Coleman’s report
does not, however, mention from whom Parrott was to be
kept apart.
The incident that underlies Parrott’s property claim
occurred shortly after his release from the hospital. Under
an agreement between the U.S. Department of Justice
and the Virgin Islands Department of Corrections, Parrott
and several other federal prisoners were scheduled for
transfer to Wallens Ridge Correctional Facility, a non-
federal institution in the state of Virginia. On July 25,
2001, prison staff brought Parrott and his personal belong-
ings to Terre Haute’s receiving and discharge area, where
he was to be processed for transfer. At this time, prison
employee Stephen Girton took an inventory of Parrott’s
property and advised Parrott (wrongly, as it turned out)
that restrictions at Wallens Ridge prevented the Terre
Haute prison officials from shipping all of Parrott’s belong-
ings to the new facility. The basis for Girton’s advice was
a memorandum from Dwayne R. Dubbs, BOP’s Inmate
Transportation Coordinator, sent on July 13, 2001 (the
No. 06-1489 7
“Dubbs Memo”), which advised BOP staff in Terre Haute
that certain types of personal property were not permit-
ted in Wallens Ridge. The Dubbs Memo listed the names
of the prisoners to be transferred and stated that “Wallens
Ridge has a strict personal property policy and does not
allow personal clothing with the exception of the items
identified below. Hobby craft items, nail clippers, and
small scissors are not authorized.” Directly below that
paragraph was the list of permitted personal clothing
items:
One pair of shower shoes
Six pairs of white athletic shorts
Six white undershirts or T-shirts with sleeves / no
pockets
Six pairs of white boxer shorts
Six handkerchiefs, white
One baseball cap, blaze orange
The Dubbs Memo did not list any other restrictions on
the personal property of prisoners being transferred to
Wallens Ridge, nor did it instruct BOP personnel how
to handle the transfer of inmates’ personal property. In fact,
BOP has a protocol for property transfers. Its written policy
instructs the responsible official to ship both authorized
and unauthorized personal property to the institution
receiving the transferred prisoner and specifies that “[i]f
the inmate’s personal property is not authorized for
retention by the receiving institution, staff at the receiving
institution shall arrange for the inmate’s excess personal
property to be mailed to a non-Bureau destination of the
inmate’s choice.” 28 C.F.R. § 553.14(b) (emphasis added).
Girton’s affidavit states that “inmates at Wallens Ridge
are severely limited in the amount of allowable items
8 No. 06-1489
they can possess. For example, excess clothing, electronics,
personal items, books, and other non-listed items were
not to be shipped directly to the prison with the inmate.”
As Parrott points out, Girton’s statement classifies far
more items as “prohibited” than the Dubbs Memo does.
Indeed, the inventory forms contained in the record
demonstrate that the vast majority of Parrott’s items (e.g.,
batteries, books, legal materials, letters, a ballpoint pen,
personal papers, photos, dental floss, deodorant, hair oil,
soap, soap dish, a hairbrush/pick, Noxema, shampoo,
shave bag, eyeglasses, eyeglass case, a Sony radio, a cup,
a bowl, a laundry bag, and two address books) were not
included on the Dubbs Memo’s list of items prohibited at
Wallens Ridge. Though it seems Parrott did possess some
prohibited items (e.g., FILA tennis shoes, three pairs of
sweat pants, two sweat shirts, clippers) and a few
things that may or may not have passed Wallens Ridge’s
restrictions (three T-shirts, one pair of underwear), nearly
all of the items in his three boxes of possessions, which
contained all that he owned, were permissible under
the Dubbs Memo.
After Girton told Parrott (inaccurately) about how little
could be sent on to Wallens Ridge, Girton reported that
Parrott said “screw it, just send all my stuff to this ad-
dress.” The address, Girton stated, was that of Parrott’s
sister, who lives in the Virgin Islands. Interpreting this
as an instruction, Girton proceeded to ship all three
boxes of Parrott’s property—again, everything that he
owned—to the Virgin Islands.
Parrott recalls things differently: he denies instructing
Girton to send his belongings to his sister. While the
Government insists that Parrott provided her address on
the inventory forms and signed the receipts directing
No. 06-1489 9
his property to his sister’s address, he says that his per-
sonal copies of the forms do not include his sister’s name
or address. Moreover, he asserts that even if he did pro-
vide his sister’s address, that would not negate BOP’s
negligence in providing incorrect information about the
property restrictions at Wallens Ridge. Because of this
negligence, Parrott argues, he has been deprived forever
of his personal property, even though the boxes did
reach his sister in the Virgin Islands. Wallens Ridge
would have accepted the property in a direct transfer
from the federal prison, but (like many prisons) it tightly
restricts the sources from which inmates may receive new
items. Operating procedures at Wallens Ridge provide
that “[p]ersonal property may not be received by mail
or delivery service from any source other than an ap-
proved mail order vendor. Property may not be received
from visitors or any other source.” Va. Dep’t of Corrections
Division, Operating Procedure 856-7.7, quoted at
http://www.vadoc.virginia.gov/offenders/prison-life/
faqs.shtm (last visited July 1, 2008). Parrott’s sister is
obviously not on the approved list of senders. Thus, Parrott
cannot receive his property even if she tries to send it
to him. Because he is serving a life sentence, it is highly
unlikely that he will ever be able to receive it elsewhere
or to go and retrieve it.
II
Before moving to the merits, we must resolve a juris-
dictional question: whether the statutory exceptions to
the FTCA’s waiver of sovereign immunity found in 28
U.S.C. § 2680 limit the subject-matter jurisdiction of the
federal courts. See Palay v. United States, 349 F.3d 418,
424 (7th Cir. 2003) (citing Clark v. United States, 326 F.3d
10 No. 06-1489
911, 913 (7th Cir. 2003)). The issue arises because the
statute conferring jurisdiction over claims against the
United States, 28 U.S.C. § 1346, gives exclusive jurisdic-
tion to the federal courts in tort actions “[s]ubject to the
provisions of chapter 171 [Tort Claims Procedure],” and
§ 2680 is found in chapter 171. Two of the exceptions
noted in § 2680 are involved in this case: the discretionary
function exception, § 2680(a), and the detention of goods
exception, § 2680(c). In its Statement of Jurisdiction, the
Government seems to claim that these are exceptions to
the jurisdictional grant, not to the scope of the right to
recover. Although it does not develop this point in its brief,
we must reach it nonetheless, because it implicates the
court’s competence to rule on the case.
Section 1346(b) is subject to chapter 171 in its entirety,
not to § 2680 specifically. Chapter 171 covers a great deal
of ground: it defines various terms, § 2671; it establishes
rules for administrative adjustment of claims, § 2672; it
requires exhaustion of administrative remedies, § 2675; it
stipulates that the remedies it contains are exclusive,
§ 2679; and it carves out exceptions to its coverage, § 2680.
One could not find the exceptions of § 2680 to be juris-
dictional without at the same time giving jurisdictional
status to the remainder of these provisions, including the
exhaustion rule. This result, however, would be inconsis-
tent with the way that the Supreme Court has treated
filing rules in the analogous context of a lawsuit
claiming employment discrimination by a federal agency.
See Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 93-96
(1990); see also McNeil v. United States, 508 U.S. 106, 112
(1993) (discussing the Federal Tort Claims Act’s rules as
setting up prerequisites to suit, not jurisdictional barriers).
As we wrote in United States v. Cook County, 167 F.3d 381No. 06-1489 11
(7th Cir. 1999), “what sovereign immunity means is that
relief against the United States depends on a statute; the
question is not the competence of the court to render a
binding judgment, but the propriety of interpreting a
given statute to allow particular relief.” Id. at 389. That
principle resolves this jurisdictional debate, too. The
statutory exceptions enumerated in § 2680(a)-(n) to the
United States’s waiver of sovereign immunity (found in
§ 1346(b)) limit the breadth of the Government’s waiver
of sovereign immunity, but they do not accomplish this
task by withdrawing subject-matter jurisdiction from the
federal courts. Compare Frey v. EPA, 270 F.3d 1129, 1132-33
(7th Cir. 2001) (differentiating between provisions that
affect a federal court’s competence to adjudicate cases
under Article III, thereby limiting its subject-matter juris-
diction, from those that merely set limits on a plaintiff’s
ability to obtain relief). It is the Government’s burden to
assert these exceptions if and when it seeks to defeat a
claim because of them. We thus have jurisdiction to decide
whether Parrott is entitled to proceed with either or both of
his claims.
III
The FTCA waives the Government’s sovereign immunity
only “under circumstances where . . . a private person . . .
would be liable” under applicable state tort law. 28 U.S.C.
§ 1346(b)(1). Each of Parrott’s claims therefore requires him
to satisfy Indiana tort law by showing: (1) a duty owed
to the plaintiff by the defendant; (2) the defendant’s
breach of the duty by failing to meet the appropriate
standard of care; and (3) injury to the plaintiff caused by
the defendant’s failure to perform its duty. See Iglesias v.
Wells, 441 N.E.2d 1017, 1019 (Ind. App. Ct. 1982) (citing
Miller v. Griesel, 308 N.E.2d 701, 706 (Ind. 1974)).
12 No. 06-1489
A
We begin with Parrott’s claim that BOP officials negli-
gently mishandled his property. This claim is governed by
the Supreme Court’s recent decision in Ali v. Federal Bureau
of Prisons, 128 S.Ct. 831 (2008). Ali involved the interpreta-
tion of § 2680(c), which provides that the general waiver
of sovereign immunity found in the Federal Tort Claims
Act does not apply to claims arising from the detention of
property by “any officer of customs or excise or any
other law enforcement officer.” The question in Ali was
whether the quoted phrase applies only to law enforce-
ment officers enforcing customs or excise laws, or if it
applies literally to “all” law enforcement officers. The
Court found the latter interpretation more consistent
with the language of the statute and dismissed the claim
of a federal prisoner whose personal effects had been lost
by BOP. In so doing, it rejected the narrower reading
that this court had adopted in Ortloff v. United States,
335 F.3d 652, 658 (7th Cir. 2003), and reaffirmed in Dahler
v. United States, 473 F.3d 769, 772 (7th Cir. 2007).
On the surface, it would be hard to find a ruling from
the Supreme Court more directly on point. In a last-ditch
effort to avoid dismissal of his property claim on this
ground, Parrott suggests that we might hold that § 2680(c)
does not immunize the BOP officials in his case because
they did not “detain” the property at issue. Noting that
the exception applies only when a petitioner’s property
is “detained,” Parrott points out that Ali did not speak to
the issue of what counts as the “detention” of a prisoner’s
property for purposes of triggering this exception to the
abrogation of sovereign immunity. See Ali, 128 S.Ct. at 835
n.2 (assuming, “without deciding, that the BOP officers
‘detained’ Ali’s property and thus satisfy § 2680(c)’s
No. 06-1489 13
‘arising in respect of . . . detention’ requirement,” because
the “Court of Appeals held that the ‘detention’ clause
was satisfied,” and because Ali “expressly declined to
raise the issue on certiorari”).
As Parrott sees it, there is a difference between “deten-
tion” of property and “loss” of property, and while there
may be an exception to the Tort Claims Act for the
former, there is not for the latter. Apart from making a
waiver argument that we find ill-founded, given the fact
that Ali overruled this circuit’s position, and it was not
decided until after the briefs were filed in this court, the
Government suggests that the district court has already
resolved this issue in its favor, by finding on the record
that Parrott’s property was “detained” within the meaning
of § 2680(c). It is correct. In the district court’s Entry
Discussing Motion for Summary Judgment, it expressly
stated that “the forwarding of personal property such as
that which occurred in this case was a ‘detention’ of goods
or other property.” While the court provided no explana-
tion for its conclusion, we find it consistent with the normal
meaning of “detention.” The BOP officials took all of
Parrott’s property, inventoried it, and erroneously told him
that he would not be permitted to have it shipped to the
new prison. They then forwarded his belongings to his
sister in the Virgin Islands, who now is unable to send
them back to Parrott. At no time has Parrott’s property
been lost; it was instead detained first (that is, kept by
BOP officials) and then shipped to the custody of a differ-
ent person.
This court has not previously had occasion to tackle the
question what constitutes a “detention” for purposes of
§ 2680(c). Our sister circuits, however, have looked at
problems similar to Parrott’s. The Tenth Circuit, for
14 No. 06-1489
example, has held that Ҥ 2680(c) applies where a
prisoner alleges that defendant prison officials detained
his personal property and mailed it outside the prison.”
Hatten v. White, 275 F.3d 1208, 1210 (10th Cir. 2002). That
is precisely what happened to Parrott. In Hatten, as in
this case, prison officials relied on a new policy that
reduced the amount of personal property that inmates
could retain. Id. at 1209-10. The only difference between
Hatten and Parrott’s case is that in Hatten the “new” policy
was implemented at Hatten’s current prison, while in
this case the shift to a new institution brought a new
policy into play. The result was the same: prison officials
in each case mailed the respective inmate’s “excess” (that
is to say, prohibited) belongings outside the prison. In
each case, the inmate lost access to his property. But lost
access to property is not the same as lost property.
We agree with the Tenth Circuit that confiscation fol-
lowed by sending property to a known recipient is a
“detention” for purposes of the exception set forth in
§ 2680(c). Indeed, a number of other circuits have held
that even where the negligent actions of law enforce-
ment officers lead to the complete destruction of the
property, § 2680(c) applies to bar the suit. See United States
v. Bein, 214 F.3d 408, 415-16 (3d Cir. 2000); Cheney v. United
States, 972 F.2d 247, 248-49 (8th Cir. 1992); Attallah v. United
States, 955 F.2d 776, 786 n.16 (1st Cir. 1992); Schlaebitz v.
U.S. Dep’t of Justice, 924 F.2d 193, 194 (11th Cir. 1991) (per
curiam). Similarly, some circuits have held that officers’
actions of “seizing” property falls within the scope of
the exception. See, e.g., Jeanmarie v. United States, 242
F.3d 600, 604 (5th Cir. 2001); Gasho v. United States, 39 F.3d
1420, 1433 (9th Cir. 1994).
Parrott’s property claim is therefore barred by the
exception to tort liability found in § 2680(c) for claims
No. 06-1489 15
arising out of “the detention of any goods, merchandise,
or other property by . . . any other law enforcement
officer.”
B
We turn now to Parrott’s claim that prison staff negli-
gently failed to protect him from Gregory’s assault. Parrott
first must establish that the defendants had such a duty
in the circumstances that arose. The parties agree that a
duty was owed to Parrott in this case, and that 18 U.S.C.
§ 4042 accurately states that duty. See United States v.
Muniz, 374 U.S. 150, 164-65 (1963) (holding that “the duty
of care owed by the Bureau of Prisons to federal prisoners
is fixed by 18 U.S.C. § 4042”). Section 4042 reads, in perti-
nent part, as follows:
The Bureau of Prisons . . . shall—
(1) have charge of the management and regulation of
all Federal penal and correctional institutions;
(2) provide suitable quarters and provide for the
safekeeping, care, and subsistence of all persons
charged with or convicted of offenses against the
United States, or held as witnesses or otherwise;
(3) provide for the protection, instruction, and disci-
pline of all persons charged with or convicted of
offenses against the United States . . . .
§ 4042(a)(1)-(3). Under Muniz and subsequent cases that
have interpreted it, § 4042 describes a duty of care for
persons in federal custody. (To the extent that the FTCA
requires us to assess the Government’s duty under
Indiana law, we note that there is no hint that Indiana law
would differ on this point.) That duty includes the “safe-
16 No. 06-1489
keeping” and “protection” of all such persons. Applicable
state tort law (here, the law of Indiana) governs whether
the duty was breached and whether the breach was the
proximate cause of the plaintiff’s injuries. See Molzof v.
United States, 502 U.S. 301, 305 (1992) (“[T]he extent of the
United States’ liability under the FTCA is generally deter-
mined by reference to state law.”); Midwest Knitting Mills,
Inc. v. United States, 950 F.2d 1295, 1297 (7th Cir. 1991)
(“[T]he FTCA incorporates the substantive law of the state
where the tortious act or omission occurred . . . .”).
At the first stage of this analysis, we confront the prob-
lem that § 4042 is written in very general terms. As
we noted in Calderon v. United States, 123 F.3d 947 (7th
Cir. 1997), although “this statute sets forth a mandatory
duty of care, it does not, however, direct the manner by
which the BOP must fulfill this duty. The statute sets
forth no particular conduct the BOP personnel should
engage in or avoid while attempting to fulfill their duty
to protect inmates.” Id. at 950. The district court took the
position that Parrott had to show that the correctional
officers “knew of a potential problem between the two
inmates prior to the assault.” In fact, the standard is
broader: as Parrott argues and the Government concedes,
Parrott must show only that BOP staff knew or rea-
sonably should have known of a potential problem between
the two inmates. See Brown v. United States, 486 F.2d 284,
288-89 (8th Cir. 1973) (analyzing United States’s liability
under the FTCA, in a federal prisoner’s failure-to-protect
suit, in terms of what “the federal government knew or
reasonably should have known”); Restatement (2d) of
Torts § 314A cmt. e.
The fact that the district court made no findings about
what the prison officials should have known about the
No. 06-1489 17
risks of placing Parrott on the same work detail as Gregory
on the day of the stabbing incident may be enough on
its own to warrant a remand for further proceedings.
Beyond that, however, we find that Parrott succeeded in
demonstrating that there were disputed issues of material
fact. As we noted earlier, the Incident Report of June 7,
2000, reflected the fact that Parrott’s CIMS Category on that
date was “Separation.” Though the identity of the individ-
ual from whom Parrott was separated has been redacted
on the versions of the Report in the record, Parrott
argues persuasively that the evidence that does exist
supports an inference that it was Gregory. The Govern-
ment’s unsupported statement that it was not Gregory is
not enough to resolve this dispute conclusively in its
favor. Furthermore, if a formal separation order was
in effect between Parrott and Gregory prior to Gregory’s
July 11, 2001, assault on Parrott, then a trier of fact could
reasonably infer that BOP staff knew or should have
known of a potential problem between Parrott and Greg-
ory. BOP’s own regulations require its employees to
“prevent any physical contact” between specified sepa-
rated individuals, 28 C.F.R. § 524.72(f), and so the ex-
istence (or absence) of such an order is of central impor-
tance. Nothing in the record suggests that Parrott’s separa-
tion status was modified between the June 7, 2000, report
and the stabbing incident on July 11, 2001. Quite the
contrary: an investigatory report filed on August 2, 2001
(detailing the July 11, 2001, attack), confirms that Parrott’s
Central Inmate File continued to reflect a CIMS classifica-
tion of “Separation” at the time Gregory assaulted Parrott
in the prison kitchen.
We are sympathetic to the Government’s point that BOP
regulations prohibit officials from telling inmates the
identity of others from whom they are separated. This
18 No. 06-1489
concern could have been accommodated, however,
either by an examination of the unredacted materials in
camera, or by a grant of one of Parrott’s three motions
for appointment of counsel, so that counsel could have
examined the record. If it turns out that BOP failed to
enforce its own classification decision, Parrott would be
able to escape the force of the “discretionary function”
exception to tort liability found in § 2680(a). Under
that provision, the FTCA’s general waiver of sovereign
immunity does not apply where the challenged act in-
volves “an element of judgment or choice” and is “suscep-
tible to policy analysis.” United States v. Gaubert, 499 U.S.
315, 322, 325 (1991). As long as a valid separation order
is in effect, there is no discretion left to operate on that
narrow question. Compare Calderon, 123 F.3d at 949-50(holding that BOP officials’ decision whether to separate
inmates is discretionary), with Cohen v. United States, 151
F.3d 1338, 1344-45 (11th Cir. 1998) (finding that even
though the decision whether to classify inmates is dis-
cretionary, the violation of a mandatory guideline imple-
menting discretionary policies “ ’will be no shelter from
liability because there is no room for choice and the action
will be contrary to policy’ ” (quoting Gaubert, 499 U.S. at
324)); see also Palay, 349 F.3d at 431 (concluding that the
discretionary-function exception does not apply where
prison officials have “acted in direct contravention of
BOP regulations”). The discretionary-function argument
is one that the Government did not raise until its opening
brief on appeal, and thus we could, if we wished, treat it
as forfeited. Given the importance of sovereign im-
munity, however, we have chosen to address the merits.
Part of the problem here is the fact that Parrott was pro se
in the district court, and his efforts to pursue discovery
No. 06-1489 19
were thwarted at every turn. Parrott handwrote all of his
pleadings, meticulously setting forth his arguments (even
Bluebooking his citations with a skill that many law students
would envy). But when he had to move beyond writing to
the pursuit of evidence, he was stymied. The Government
objected to nearly all of Parrott’s discovery motions by
asserting that the information he requested was either
privileged, or irrelevant, or both. Whether or not those
conclusions were accurate, they turned out to be immate-
rial. In denying Parrott’s motions, the district court relied
(inappropriately) on rules of admissibility and generalized
concerns about privacy and confidentiality, rather than on
the basis of discoverability. Once again, a more targeted
consideration of the requested materials would have been
preferable. Because so much of this case hinges on whether
a formal separation order existed between Parrott and
Gregory, we find that the district court abused its discre-
tion in its handling of Parrott’s discovery motions, and that
Parrott suffered substantial prejudice as a result.
IV
For these reasons, we AFFIRM the district court’s judg-
ment in favor of the United States on Parrott’s property
claim. We VACATE the summary judgment order on
Parrott’s failure-to-protect claim and REMAND the case
for further proceedings consistent with this opinion. Each
side must bear its own costs on appeal.
20 No. 06-1489
BAUER, Circuit Judge, concurring in part and dissenting
in part. I join the excellent opinion of the majority as to the
property claims; I respectfully dissent from that portion
of the opinion that remands the issue of the “separation”
order and its implications.
As the district court held, Parrott has failed to demon-
strate any basis for concluding that prison officials acted
in negligent disregard of such risks when they released him
into the general prison population. Parrott was released
from the Special Housing Unit on July 5, 2001, at his
request, over a year after a minor altercation that he had
instigated with Gregory in which no one was injured. See
RE 99-9 at 2, SA 35; RE 99-10 at 2, SA 37; RE 107-3 at 6, SA
83. Parrott has pointed to no threats or other reasons that
the BOP would reasonably have suspected that releasing
him into the general population would result in his harm
at the hands of Gregory. Rather, as the district court held,
“[t]he evidentiary record here contains no feature or fact
suggesting that BOP staff knew of a potential problem
between Parrott and Gregory on July 11, 2001” such that
Parrott could not be released into the general population.
RE 117 at 3, SA 118.
Indeed, Parrott signed a statement indicating that he
had no concerns regarding his return to the general
population and did not fear for his safety. RE 99-9 at 2,
SA 35; RE 99-10 at 2; SA 37 (requesting “to remain housed
in General Population as there is no need for staff to
protect me at this time” and agreeing to notify BOP staff
if threats arise). Although Parrott suggests that he did not
sign this statement, see BR. 36, nothing in the record
provides the basis for a genuine factual dispute and
Parrott cannot resist summary judgment on the basis of
“mere allegations or denials.” Moreover, the records
No. 06-1489 21
before the district court contain statements by two BOP
officials that no order existed that required the separa-
tion of Parrott and Gregory.
Without any basis that I can see in the record, Parrott
insists that the redacted file (which the Court properly
held was not available as discovery material) showed
otherwise. The majority opinion, while professing sympa-
thy for the BOPs regulations that prevent them from
disclosing the contents of the file, says the concern could
have been accommodated by either the court (or a
court appointed counsel) reviewing the redacted mate-
rial to see if the BOP officials were lying. Leaving out
the fact that I knew of no requirement that the court
should appoint an attorney in a case that raises the
issues we face, the trial court concluded that such a
study was unnecessary; that the record shows that
nothing Parrott raised produced enough of a question
that required further discovery.
Nothing in the record shows that the BOP was aware
of any reason to separate Parrott and Gregory. There was
a minor altercation between the two; in a prison popula-
tion such altercations are frequent, not unexpected and
virtually impossible to prevent. If they all led to Separa-
tion orders, the prisons would occupy half the state.
I think Judge Young had it right; the defendants were
entitled to summary judgment on both facets of the case.
USCA-02-C-0072—7-30-08