Kevin Walker v. State of Iowa

IN THE SUPREME COURT OF IOWA
No. 09–0663
Filed August 12, 2011
KEVIN WALKER,
Appellee,
vs.
STATE OF IOWA,
Appellant.
Appeal from the Iowa District Court for Page County, Timothy
O’Grady, Judge.
The State appeals from an adverse ruling on its motion for
summary judgment. AFFIRMED AND CASE REMANDED.
Thomas J. Miller, Attorney General, and Forrest Guddall and
Anne E. Updegraff, Assistant Attorneys General, for appellant.
Nicholas W. Platt and Gregory T. Racette of Hopkins & Huebner,
P.C., Des Moines, for appellee.
2
WIGGINS, Justice.
While an inmate at the Clarinda Correctional Facility (CCF), the
plaintiff, Kevin Walker, was assaulted by another inmate and seriously
injured. Walker brought a tort claim against the State, a correctional
officer, and two activity specialists, claiming they negligently failed to
ensure his safety. The State sought summary judgment based upon the
discretionary function and intentional tort exceptions under Iowa Code
section 669.14 (2005). The district court denied the State’s motion, and
the State filed an application for interlocutory appeal, which we granted.
We now affirm the decision of the district court denying the State’s
motion for summary judgment.
I. Background Facts and Prior Proceedings.
The State acknowledges that some of the underlying facts in the
case are disputed, but it claims that it is entitled to summary judgment
as a matter of law. A reasonable fact finder viewing the summary
judgment record in the light most favorable to the plaintiff could find the
following facts.
CCF is a medium-security correctional prison of the Iowa
Department of Corrections (IDOC). On January 8, 2005, Kevin Walker,
an inmate at CCF, had a confrontation with inmate Darrell Humphrey,
during the breakfast turn out. 1 According to Walker, Humphrey, a
jailhouse lawyer, approached another inmate, Willie Evans, who was
involved in challenging a rules violation, and offered his services for a
small fee. When Walker advised Evans that he could handle the matter
on his own, Humphrey became angry with Walker and threatened to
assault him. Evans then became angry with Humphrey and an
1“Turn out” means designated times for inmates to move from their cells or other
locations to another in the institution such as the breakfast room or the gym.
3
argument between the two ensued. This argument continued as the
group made its way through the breakfast line.
After going through the line, Humphrey sat at a different table from
Walker, Evans, and another inmate, Edward Willingham. As they ate
their breakfast, Evans and Humphrey continued to argue, shouting and
threatening each other from their respective tables. According to Walker,
the argument was louder than any other conversation in the room
because the inmates had stopped talking and were listening to the
argument. Walker did not report the threats, but asserts Correctional
Officer Thomas Walston, who was staffing the breakfast turn out, could
hear the argument, including the threats of assault. Officer Walston
claims he could not hear the specifics of the conversation. However,
after Humphrey left the unit, Officer Walston talked to the remaining
inmates involved in the argument and asked them what the problem was
and was told everything was fine.
A short time later, Humphrey returned to the unit with David
Barnett. Barnett was in a different unit, and it was a rules violation for
him to return with Humphrey. Evans and Willingham continued to
argue with Barnett and Humphrey, with some pushing and shoving
going on. Barnett indicated the argument would be settled at the next
turn out, the exercise turn out. He indicated they could fight in the gym
because the yard was too cold that day. Walker alleges Officer Walston
overheard these statements.
At some point, Officer Walston approached the group and
instructed Barnett to return to his unit. He did not, however, instruct
Evans, who was on cell restriction, to return to his cell. When Barnett
did not leave immediately, Officer Walston escorted him out of the unit
4
during which time Barnett made comments about settling the argument
at the next turn out.
During the exercise turn out, Walker went to the gym and played
basketball with other inmates. On the other side of the gym, Evans,
Humphrey, and Barnett were fighting in a blind spot that could not be
seen from the office in the gym. 2 When the fight was over, Barnett
walked over to Walker, and stated something to the effect, “[T]his is what
happens when you shoot your mouth off.” Humphrey then approached
Walker and assaulted him. The assault knocked Walker unconscious
and broke his jaw.
At the time of the exercise turn out, two activity specialists, Noel
Bogdanski and Richard Stipe, were on duty in the gym. They did not see
the fight involving Evans, Barnett, and Humphrey, or the assault on
Walker. Bogdanski was in the office of the gym either handing out
equipment or filling out paperwork. Stipe was standing in the door of the
gym as the inmates entered and could not see the areas where the two
incidents occurred. Both Bogdanski and Stipe were aware of the blind
spot in the gym, but did not monitor the area. Officer Walston filled out
a disciplinary report regarding the breakfast incident, but not until after
Walker was assaulted.
On August 3, 2006, Walker filed a tort claim, pursuant to Iowa
Code chapter 669, against the State and the three correctional staff
members, claiming injury and damages due to the defendants’ negligence
in failing to exercise reasonable care to protect Walker from a violent
attack by another prisoner. On February 6, 2007, the State Appeal
Board denied Walker’s claim. Thereafter, Walker filed this petition.
2Officer Walston allowed inmate Evans to attend the turn out, even though he
was on cell restriction and was not supposed to be able to go to the gym.
5
In his petition, Walker contends that (1) Bogdanski and Stipe were
negligent in failing to properly supervise the exercise turn out, (2) Officer
Walston was negligent for failing to alert Bogdanski and Stipe about the
morning confrontations and the threats made about the fight, (3) all of
the defendants were negligent in failing to ensure the safety of Walker in
light of the dangerous situation that existed in the gym at the time
Walker was injured, and (4) all the defendants were negligent for allowing
a dangerous condition to exist in the gym. Pursuant to Iowa Code
section 669.5(2)(a), the district court ordered the State substituted for
the individually named defendants Walston, Bogdanski, and Stipe. See
Iowa Code § 669.5(2)(a) (2007) (substituting the state for defendant
where defendant in a suit was an employee of the state acting within the
scope of the employee’s employment at the time of the incident upon
which the claim is based). Thereafter, the State filed a motion for
summary judgment asserting the State was entitled to immunity
pursuant to the discretionary function and intentional tort exceptions
under Iowa Code section 669.14 (2005).
The State contended the policies of the IDOC permit prison staff to
use discretion in taking corrective action in the management of inmate
populations and in monitoring and supervising inmates, and therefore,
the correctional staffs’ actions are entitled to discretionary function
exception under Iowa Code section 669.14(1). The State also asserted it
is immune from any claim arising from an assault pursuant to Iowa Code
section 669.14(4).
The district court denied the State’s motion for summary
judgment, concluding a genuine issue of material fact existed as to
whether the prison staff involved had knowledge of hostility or a history
of prior trouble involving Walker. It did not explicitly address the State’s
6
contention that, as a matter of law, the discretionary function or
intentional tort exceptions applied. The State filed a motion to
reconsider, which the district court overruled. We granted the State’s
application for interlocutory appeal to determine whether the
discretionary function and intentional tort exceptions apply in this case.
II. Scope of Review.
We review the denial of a motion for summary judgment for
correction of errors at law. Doe v. Cedar Rapids Cmty. Sch. Dist., 652
N.W.2d 439, 442 (Iowa 2002). Summary judgment is appropriate
if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue of material fact and that the
moving party is entitled to a judgment as a matter of law.
Iowa R. Civ. P. 1.981(3); accord Doe, 652 N.W.2d at 442.
A genuine issue of fact exists if reasonable minds can differ on how
an issue should be resolved. Seneca Waste Solutions, Inc. v. Sheaffer
Mfg. Co., 791 N.W.2d 407, 411 (Iowa 2010). When a fact’s determination
might affect the outcome of the suit, it is material. Id.; see also Baratta
v. Polk County Health Servs., 588 N.W.2d 107, 109 (Iowa 1999).
III. Merits.
A. Iowa Tort Claims Act. The Iowa Tort Claims Act (ITCA)
permits an action by a prisoner “when the state negligently permits one
in its custody to be injured by the violent assault of another prisoner.”
Barnard v. State, 265 N.W.2d 620, 621 (Iowa 1978); cf. United States v.
Muniz, 374 U.S. 150, 165, 83 S. Ct. 1850, 1859, 10 L. Ed. 2d 805, 816
(1963) (noting the Federal Tort Claims Act allows for damages for
employee negligence in failing to protect federal prisoners). Although not
an insurer of a prisoner’s safety, the state must exercise reasonable care
to protect the prisoner from harm. Barnard, 265 N.W.2d at 621. For an
7
inmate to recover for injuries incurred in an attack by another inmate,
the inmate must establish: “(1) the state institution knew or should have
known that a specific inmate suffered a risk of harm, and (2) the
institution failed to use reasonable care to prevent the attack on the
inmate.” Speller v. State, 528 N.W.2d 678, 679 (Iowa Ct. App. 1995)
(citing Mosby v. Mabry, 697 F.2d 213, 215 (8th Cir. 1982)); accord
Barnard, 265 N.W.2d at 621–22 (noting that while not an exclusive list of
circumstances, liability has been imposed when threats, incidents of
prior violence, and other reasonable cause to fear physical harm have
been brought to the attention of authorities; when there has been a
failure to provide adequate supervision; and when authorities have
placed known hostile persons where they have access to each other).
The question raised is whether the discretionary function and intentional
tort exception provisions of the Act provide the State with immunity from
liability.
B. Discretionary Function Exception. A governmental entity is
entitled to immunity only to the extent permitted by statute. Doe, 652
N.W.2d at 443. “[L]iability is the rule and immunity the exception.” Id.
Thus, we narrowly construe the discretionary function exception.
Madden v. City of Eldridge, 661 N.W.2d 134, 138 (Iowa 2003). The
government has the burden of establishing entitlement to the statute’s
protection. Ette ex rel. Ette v. Linn-Mar Cmty. Sch. Dist., 656 N.W.2d 62,
68 (Iowa 2002).
The Iowa Code provides the State shall be immune from tort
liability for
[a]ny claim . . . based upon the exercise or performance or
the failure to exercise or perform a discretionary function or
duty on the part of a state agency or an employee of the
state, whether or not the discretion be abused.
8
Iowa Code § 669.14(1).
In Goodman v. City of LeClaire, 587 N.W.2d 232 (Iowa 1998), we
abandoned the planning/operational bright-line test and adopted the
two-prong analysis advocated in Berkovitz v. United States, 486 U.S. 531,
108 S. Ct. 1954, 100 L. Ed. 2d 531 (1988), to determine whether the
discretionary function exception was applicable in a negligent excavation
claim brought against a city under the Municipal Tort Claims Act. 587
N.W.2d at 238 (adopting the Berkovitz two-step analysis). We
subsequently concluded this analysis was equally applicable under the
ITCA. See Schmitz v. City of Dubuque, 682 N.W.2d 70, 72 (Iowa 2004);
accord Anderson v. State, 692 N.W.2d 360, 364 (Iowa 2005).
Under the Berkovitz test, the court must initially determine
whether the act in question was a matter of choice for the acting
employee. Berkovitz, 486 U.S. at 536, 108 S. Ct. at 1958, 100 L. Ed. 2d
at 540. The discretionary function exception is inapplicable when a
statute, regulation, or policy requires a course of action for an employee
to follow. Id. Next, if the action involved discretion on the part of the
employee, the court must consider whether the judgment was of the kind
the exception was designed to protect. Id.; accord Anderson, 692 N.W.2d
at 364. We have adopted the Supreme Court view that the discretionary
function exception “ ‘protects only governmental actions and decisions
based on considerations of public policy.’ ” Anderson, 692 N.W.2d at 364
(quoting Berkovitz, 486 U.S. at 536–37, 108 S. Ct. at 1959, 100 L. Ed. 2d
at 541). The basis for the discretionary function exception is to “ ‘prevent
judicial “second guessing” of . . . administrative decisions grounded in
social, economic, and political policy’ through tort litigation, thereby
protecting [states] ‘from liability that would seriously handicap efficient
9
government operations.’ ” Ette, 656 N.W.2d at 67 (quoting Goodman, 587
N.W.2d at 237).
[T]he primary factor in determining whether a particular
activity qualifies as a discretionary function is whether the
decision to act involves the evaluation of broad policy
factors. If so, the decision is more likely to be characterized
as a discretionary function.
Keystone Elec. Mfg. v. City of Des Moines, 586 N.W.2d 340, 348 (Iowa
1998) (citation omitted).
The appropriate analytical framework has thus been summarized
as follows:
An inquiring court first must identify the conduct that
allegedly caused the harm. . . . The issue, then, is whether
this conduct is of the nature and quality that [the
government], in crafting the discretionary function exception,
sought to shelter from tort liability. That issue encompasses
two questions: Is the conduct itself discretionary? If so, is
the discretion susceptible to policy-related judgments?
Shansky v. United States, 164 F.3d 688, 690–91 (1st Cir. 1999); accord
Ette, 656 N.W.2d at 67.
1. Conduct at issue. The first step in our analysis is to determine
the exact conduct that is at issue. Ette, 656 N.W.2d at 67. As previously
noted, the State must exercise reasonable care to protect prisoners from
harm. Barnard, 265 N.W.2d at 621. Walker generally contends the
State was liable under Iowa Code chapter 669 for the negligent
supervision of inmates, negligently failing to ensure his safety, and
negligently allowing a dangerous condition to exist in the gym.
2. Did the correctional staffs’ actions involve discretion? With
regards to Officer Walston, Walker alleged he failed to use reasonable
care because he failed to (1) alert staff and security of what was going to
happen in the gym, (2) write disciplinary notices on the involved inmates
for minor and/or major rule violations, (3) request an investigation and
10
segregation of the involved inmates, (4) prevent inmate Barnett from
being out of placement, (5) prevent inmate Evans from leaving his unit in
violation of his cell restriction, and (6) engage in further discussions with
the inmates about the breakfast turn out argument. Walker asserts the
State is not immune under the discretionary function exception because
prison policies and procedures mandated Officer Walston take specific
actions in light of the escalating verbal and physical confrontation
between the inmates. Walker further contends Activity Specialists
Bogdanski and Stipe were negligent because they failed to maintain
direct supervision over the inmates participating in recreational activities
in the gym in violation of a mandatory policy. We begin our analysis by
considering the policies Walker contends were violated by the activity
specialists.
Walker relies on CCF policy IO-SC-10 which provides that “[s]taff
must stay out of office areas to the greatest extent their duties allow and
remain in personal contact with the offenders in their units,” and that
“[o]ffenders involved in recreation activity . . . shall be subject to direct
staff supervision at all times when they are engaged in such activity.”
Walker claims this policy required the activity specialists to provide
“direct supervision [of inmates] at all times” and that their failure to do
so subjected him to injury. Walker asserts the activity specialists were
aware of a blind spot in the gym where inmates could not easily be
observed and that neither activity specialist was specifically supervising
the inmates or observing the blind spot, which resulted in their failure to
discover a fight between inmates that lasted up to fifteen minutes.
Upon our review, we disagree with Walker’s conclusion this policy
imposed a nondiscretionary duty on the activity specialists in their
supervision of the inmates during their recreational period. Although the
11
policy directs staff to stay out of office areas and remain in personal
contact with offenders, the requirement is not absolute. The policy is
conditioned by the additional language “to the greatest extent their
duties allow.” The policy clearly anticipates the need for prison staff to
use their discretion in the provision of supervision and acknowledges
that there are times when the job will require staff to be in an office area.
Cf. Calderon v. United States, 123 F.3d 947, 950 (7th Cir. 1997) (holding
the Bureau of Prison’s policy provides a mandatory duty of safekeeping,
but did not direct the manner by which it must be fulfilled, thereby
providing for discretion on the part of prison personnel); accord Parrott v.
United States, 536 F.3d 629, 637 (7th Cir. 2008). We also do not find the
provision providing that offenders engaged in recreational activity “shall
be subject to direct staff supervision at all times” placed a
nondiscretionary duty on the activity specialists. Although the policy
places a duty on the staff, it did not define “subject to direct staff
supervision,” leaving the means and method of carrying out the duty
subject to discretion. Cf. Cohen v. United States, 151 F.3d 1338, 1343
(11th Cir. 1998) (noting that “even though a statute or regulation
imposes a general duty on a government agency the discretionary
function exception may still apply if the agency retains sufficient
discretion in fulfilling that duty”); Ochran v. United States, 117 F.3d 495,
500 (11th Cir. 1997) (holding the use of the language “shall . . . protect”
did not mean that the regulation “left no room for the [U.S. Attorney] to
exercise judgment or choice” about how to protect witnesses). Walker
has failed to identify any prison policy or procedure that required a
specific course of action for the activity specialists to follow in their
supervision of inmates during the exercise turn out. Therefore, we
12
conclude the supervision of inmates during the exercise turn out
involved discretionary conduct on the part of the activity specialists.
Walker asserts CCF policies IN-VI-21, IS-CL-04, IO-SM-02, and
PO-V-17 required Officer Walston to take specific actions and did not
allow him to use his discretion under the circumstances. IDOC policy
IS-CL-04 is entitled “Keep Separates.” It provides: “Staff who become[]
aware of an event or situation between two offenders that may potentially
pose a risk to the offenders while housed in an institution or residential
facility shall report that information to the . . . Shift Supervisor.” While
policy IS-CL-04 required the reporting of events or situations that may
constitute a danger to inmates, the policy does not expressly provide
what constitutes a potential risk to the offender and, therefore, such a
determination must rely on the judgment or discretion of the staff.
Moreover, the policy does not require the report be prepared immediately.
The policy provides discretion to staff in the handling of the reporting
function.
Policy IO-SM-02, A-2a is entitled “Administrative Segregation.” It
provides: “An offender may be placed in (Administrative Segregation)
AS3 at any time the Shift Supervisor determines there is credible
evidence that the offender may be in physical danger.” Policy IO-SM-02
is also discretionary. It allows the shift supervisor to use his or her
discretion to determine whether an offender needs to be placed in
administrative segregation for their protection. Cf. Cohen, 151 F.3d at
1343 (holding the statutory provision did not mandate a specific,
nondiscretionary course of conduct for the bureau of prisons to follow in
classifying prisoners). This policy did not mandate any specific action on
the part of Officer Walston.
13
Under policy PO-V-17, a unit officer was required to “[m]aintain
security of [the unit] and control of the offenders at all times.” Like the
policies already addressed, this policy imposes a general duty without
prescribing any specific mandatory action by staff and allows for staff
discretion in maintaining security and control of offenders.
Policy IN-VI-21 was the correctional facility disciplinary policy in
effect at the time of the incident occurring prior to Walker’s assault.3
Part IV of the policy provides for the disciplinary procedures to be used
for major offenses. The policy defines major offenses to include assault,
fighting, threats and intimidation, out of placement of assignment, and
obstructive or disruptive conduct. 4 Walker relies on the following portion
of this policy to assert Officer Walston violated institutional policy in his
handling of the situation at the breakfast turn out.
A. Preparing The Disciplinary Report
1. Whenever an employee observes or discovers
misconduct or a threatening situation, the employee
will, if possible, direct the offender to take corrective
action. If the corrective action is insufficient or
circumstances warrant, a disciplinary form may be
completed. In either event, all incidents shall be
documented.
Any offender behavior which constitutes criminal
behavior or a serious threat to the safety and order of
the employees, offenders, or property of an institution
shall be reported by the employee observing the
incident or to whom the situation has been reported if
observed by a non-employee.
2. Violations shall be reported on the Disciplinary Report
Form IN-V-36 F-1 and forwarded to the shift
supervisor for further review.
3IN-VI-21was replaced by IO-RD-01 effective April 2008. We do not consider
whether our analysis would be the same under the current policy.
4The disciplinary policy defines each of these offenses. However, for summary
judgment purposes, we assume, without deciding, that during the breakfast turn out
one or more of these offenses occurred.
14
....
4. Disciplinary reports are to be promptly forwarded to the
shift supervisor or designate official . . . .
5. Shift supervisor . . . shall make an initial determination of
the status of the offender pending disciplinary
procedures. If necessary for the safety and security of
staff and other offenders, the offender may be assigned to
administrative segregation.
(Emphasis added.)
Walker acknowledges the policy provides that if an officer
encounters misconduct or a threatening situation, the officer may
attempt to resolve the issue by directing the inmate to take corrective
action, and that, if the corrective action is insufficient or circumstances
warrant, the officer may complete a disciplinary report. Such language
requires no mandatory action on the part of the officer and clearly allows
for an officer to use his or her discretion. See Dykstra v. U.S. Bureau of
Prisons, 140 F.3d 791, 795 (8th Cir. 1998) (holding prison policy did not
require prison counselor to warn inmate that his youthful appearance
made him vulnerable to attack prior to obtaining waiver of protective
custody); Calderon, 123 F.3d at 949 (finding prison disciplinary
regulation, which allowed staff to consider informal resolution of an
incident gave prison personnel room for judgment in determining
whether to sanction an inmate). Officer Walston did, in fact, take
corrective action by talking to the inmates and inquiring what the
problem was. At various points, he instructed inmates to return to their
cells or units.
Walker asserts however, that the subsequent language in the
regulation required Officer Walston to take further action under the
circumstances presented. The regulation required Officer Walston to
report all incidents. Moreover, it required criminal behavior or serious
15
threats to safety to be reported on a disciplinary form and promptly
forwarded to the shift supervisor. The shift supervisor would then
determine whether it was necessary for the safety and security of staff
and other offenders that the offender be assigned to administrative
segregation. Walker alleges Officer Walston was aware, after overhearing
the threats of assault and confronting Humphrey and Barnett, that the
inmates were anticipating a fight. Walker argues, under these
circumstances, the regulation required Officer Walston to make a prompt
report to his supervisor, who would then make the determination
whether there was credible evidence that an inmate may be in physical
danger and impose administrative segregation.
The State disputes Walker’s interpretation of the regulation.
Although the regulation requires documentation of misconduct or a
threatening situation, the State asserts the policy does not mandate the
type, timing, or manner of documentation. Those matters, the State
contends, are subject to staff discretion. Moreover, assuming Officer
Walston was required to document the verbal altercation, he did so later
in the day. Similarly, while the regulation also requires that criminal
behavior or a serious threat to the safety and order of an institution shall
be reported, the State contends there is no policy or rule for determining
when conduct rises to the level of criminal behavior or a serious threat,
and therefore, it was a judgment call best left to the discretion of the
prison staff. In support, the State relies on the affidavit of Associate
Warden/Security at CCF, Jim Payne. In addressing the policies and
procedures regarding inmate violations, Associate Warden Payne stated:
3. There is no written policy or procedure mandating
that when a correctional officer or other staff member
observes an inmate violating a minor or major rule that an
inmate disciplinary report be completed or that the inmate
be referred to the shift captain for segregation and lock up.
16
4. To the contrary the Correctional Officer or the staff
member is encouraged by written policy and procedure and
also through training, to attempt other less drastic corrective
action when possible.
5. The Correctional Officer or staff member must
make a decision based on judgment on what corrective
action is appropriate for the situation or event. Proper
corrective action can include anything from making your
presence known, to talking with the inmate, to a verbal
warning, to referring the matter to a shift manager to
consider segregation or lock up, or sending the inmates to
their cells.
The State also argues that there was no criminal behavior or serious
threat to the safety and order of the institution after Officer Walston
spoke with the inmates. The State asserts the regulation requires the
exercise of judgment and discretion similar to that found in Calderon.
In Calderon, a federal prison inmate informed prison personnel of
threats he had received from another inmate, Perez. 123 F.3d at 948.
Federal prison disciplinary regulations provided that “ ‘[s]taff shall take
disciplinary action at such times and to the degree necessary to regulate
an inmate’s behavior within the Bureau rules and institution guidelines
and to promote a safe and orderly institution environment.’ ” Id. at 949
(quoting 28 C.F.R. § 541.10(b)(2)). The regulations further defined
“ ‘[t]hreatening another with bodily harm or any other offense’ ” as a
prohibited act for which disciplinary action must be taken. Id. (quoting
28 C.F.R. § 541.13). The same regulations also required that
“when [the] staff witnesses or has reasonable belief that a
violation of [prison] regulations has been committed by an
inmate, and when staff considers informal resolution of the
incident inappropriate or unsuccessful, staff shall prepare
an Incident Report and promptly forward it to the
appropriate [supervisor].”
Id. (quoting 28 C.F.R. § 541.14(a)). Prison personnel took no steps to
protect Calderon or to discipline Perez, who eventually attacked and
17
seriously injured Calderon. Id. at 948. The government claimed the
decision not to separate Calderon and Perez involved a discretionary act
and therefore liability was barred under the Federal Tort Claims Act
(FTCA). Id.
In reviewing the federal regulations for addressing inmate
misconduct, the court found that none of the cited regulations set forth
any mandatory, nondiscretionary disciplinary action that required prison
personnel to take specific action against Perez prior to his attack on
Calderon. Id. at 949–50. First, the regulations did not specify any
particular type of action personnel are required to take with respect to
inmate discipline. Second, while section 541.14 may require an incident
report, which might ultimately lead to the imposition of a sanction, the
court noted that such action was only required when (1) prison personnel
witness or have a reasonable belief that a violation has occurred, and
(2) when staff considers informal resolution inappropriate. Calderon
presented no evidence that prison personnel witnessed any violation of
prison regulations or made any formal finding that Perez had actually
committed any prohibited acts. Id. at 950. The court, therefore, found
the regulations clearly gave the prison personnel discretion in
determining whether to sanction Perez. 5 Id. The court also rejected
5The Seventh Circuit also rejected the defendant’s argument that the
“reasonable belief” standard should be interpreted as “when a reasonable staff person
would have had a belief that a violation occurred.” Calderon, 123 F.3d at 950 n.1. It
concluded that if the discretionary function exception could be pierced by a showing of
negligence, then it was no shield at all. Id. In Parrott v. United States, 536 F.3d 629,
637 (7th Cir. 2008), the Seventh Circuit held that while 18 U.S.C. § 4042 provided a
mandatory duty of care, it did not provide the manner by which that duty was to be
fulfilled. However, it continued, an inmate was only required to show that the prison
staff knew or reasonably should have known of a potential problem between two
inmates, seemingly a step away from Calderon. Parrott, 536 F.3d at 637. The appellate
court concluded that the district court made no findings about what the prison official
should have known about the risks of placing Parrott in the same work detail as
another inmate and that this might be enough to warrant a remand on Parrott’s failure-
to-protect claim. In the end, however, the decision to remand was due to disputed
18
Calderon’s argument that 18 U.S.C. § 4042, which provides the Bureau
of Prisons “shall . . . provide for the safekeeping, care, and subsistence of
all persons charged with or convicted of offenses against the United
States,” required any mandatory action of the prison personnel. Id. at
950.
The State’s reliance on Calderon is misplaced. In Calderon, the
statute required action and a report when (1) a violation was witnessed
or when a reasonable belief that a regulation violation had occurred and
(2) prison personnel determined informal resolution was inappropriate or
unsuccessful. Id. at 949. In Calderon, the court found there was no
evidence that prison personnel witnessed any violation of prison
regulations or made any formal finding that Perez had actually
committed any of the prohibited acts. Id. at 950. Here, however, the
regulations required
[a]ny offender behavior which constitutes criminal behavior
or a serious threat to the safety and order of the employees,
offenders, or property of an institution shall be reported . . .
on the Disciplinary Report Form IN-V-36 F-1 and [promptly]
forwarded to the shift supervisor . . . [who] shall make an
initial determination of the status of the offender pending
disciplinary procedures . . . [and] if necessary for the safety
and security of staff and other offenders, the offender may be
assigned to administrative segregation.
We agree with the State that while the regulation provides
discretion as to the reporting and handling of “misconduct or a
threatening situation,” with respect to “criminal behavior or a serious
threat,” the regulation requires the officer to promptly report to the shift
supervisor. Pursuant to Policy IN-VI-21, assault is defined as
“intentionally caus[ing] or threaten[ing] to cause injury to another
__________________________
issues of material fact as to whether the contents of a previously entered separation
order left prison personnel without discretion to keep Parrott and the other inmate
separate. Id. at 637–38.
19
person,” and is categorized as a major offense under the disciplinary
regulations. “Promptly” means “immediately” or “quickly”. Webster’s
Third New International Dictionary 1816 (unabr. ed. 2002) [hereinafter
Webster’s]. However, because at this stage the material facts are
disputed, we are unable to determine whether, for example, an assault,
which by definition constitutes criminal behavior, occurred and would,
under the circumstances, constitute a serious threat. Because material
facts are at issue, i.e., whether Officer Walston overheard threats of
assault and preparation for a fight during the exercise turn out, it is not
possible to determine whether the regulation required Officer Walston to
prepare a report, which must then be promptly forwarded to the shift
supervisor for review and consideration of any potential additional safety
measures. See Ashford v. United States, 511 F.3d 501, 505 (5th Cir.
2007) (holding summary judgment improper where inmate claimed he
raised safety concerns during intake interview which would, under
prison policy, have required him to be put in solitary confinement until
an investigation could be conducted); see also Schneider v. State, 789
N.W.2d 138, 146–47 (Iowa 2010) (holding the discretionary function
doctrine had no application because the State had no discretion in
determining whether the bridge could be designed and built to encroach
on a floodway).
3. Was the discretion susceptible to policy-related judgments?
Nevertheless, even if we conclude none of the policy provisions discussed
required mandatory action by prison personnel, we conclude the
discretionary function exception is not applicable in this case because
the decisions by prison staff in the supervision of the inmates did not
involve the evaluation of broad public policy factors. Individual
judgments protected by the discretionary function exception must be
20
based on considerations of public policy. Anderson, 692 N.W.2d at 364.
The record must show
the governmental entity based its actions on the required
policy considerations, as distinguished from an action
arising out of the day-to-day activities of the business of
government. Unless a governmental entity can demonstrate
that when it exercised its judgment, it genuinely could have
considered and balanced factors supported by social,
economic, or political policies, we will not recognize the
discretionary function immunity.
Id. at 366.
In other words, an immune governmental action is one that
weighs competing ideals in order to promote those concerns
of paramount importance over the less essential, opposing
values. Whether or not the [governmental actor] actually
made its decision with policy considerations in mind is not
determinative. Instead, the [governmental entity’s] actions
. . . must be amenable to a policy-based analysis. The
circumstances must show the [entity] legitimately could have
considered social, economic, or political policies when
making judgments as to [the supervision of prison inmates].
Graber v. City of Ankeny, 656 N.W.2d 157, 165 (Iowa 2003).
The State argues the evidence supports the conclusion correctional
staff, in supervising the inmates and addressing inmate behavior, could
have considered social and economic policies. Specifically, the State
notes the legislature has granted the IDOC statutory authority to create
disciplinary procedures and adopt rules pertaining to the internal
management of penal institutions within the state. See Iowa Code
§§ 904.108(1)(a), (k); .205. Under these rules, staff is given discretion in
the application of corrective action and the reporting of rule violations.
In his affidavit, Associate Warden Payne maintained such discretion is
necessary because rule violation is very common in prison. If every rule
violation resulted in a disciplinary report or segregation, he asserted, the
correctional staff would be unable to perform their job, which would
result in the deterioration of the safe and efficient operation of the
21
facility. It would require more staff to be hired, an economic
consideration. Moreover, the increased disciplinary action and lock ups
would produce inmate dissatisfaction and frustration, resulting in
threats to the safe and efficient operation of the facility. The State argues
this case is similar to and governed by our analysis in Anderson.
In Anderson, the plaintiff brought a premise liability claim,
asserting the State was negligent for failing to close the university library
due to inclement weather. 692 N.W.2d at 361. The evidence established
the university had a written policy concerning operations during adverse
weather. Id. at 362. In deciding whether the discretionary function
exception applied to the dean’s decision not to close the library early, we
considered our application of the discretionary function exception in
other cases. In cases where we held the exception inapplicable, the
record showed the governmental entity did not base its action on
required policy considerations, but rather the action arose out of the day-
to-day activities of the business of government. Id. at 364–66 (citing
Madden, 661 N.W.2d at 139–40 (holding building inspector’s decision not
to inspect dry wall was ad hoc and there was no evidence to suggest
engagement in policy analysis); Ette, 656 N.W.2d at 69 (holding school’s
decision to send student home alone on bus was not a judgment call
driven by social, economic, or political concerns); Messerschmidt v. City
of Sioux City, 654 N.W.2d 879, 881 (Iowa 2002) (holding decision to
remove a road barricade did not involve policy-making decisions and city
had “not met its burden to prove considerations based on social,
economic, or political policy were involved in its decision”); Doe, 652
N.W.2d at 444–45 (holding school failed to show any social, political, or
economic factors as basis for decision to hire, retain, and supervise a
particular teacher); Bellman v. City of Cedar Falls, 617 N.W.2d 11, 19
(Iowa 2000) (holding teacher’s decision in supervising children was not
22
based upon policy considerations)). We held that “[u]nless a
governmental entity can demonstrate that when it exercised its
judgment, it genuinely could have considered and balanced factors
supported by social, economic, or political policies, we will not recognize
the discretionary function immunity.” Id. at 366 (citing Graber, 656
N.W.2d at 165).
Applying this test to the facts, in Anderson we found the dean
considered and balanced the same factors used by the university when it
formulated the policy: providing the maximum opportunity for students
and staff to utilize the library, thus furthering the public policy of
providing the best college education at a reasonable cost, against the
adequacy of the staff and the number of persons using the library
facilities. Id. Because the dean could balance these policy
considerations in making her determination, we concluded the
discretionary function exception applied.
Here, we conclude the discretionary function exception is not
applicable because the decisions made by the correctional staff in the
supervision of the inmates did not involve the evaluation of broad public
policy factors. The correctional staffs’ handling of the confrontation
during the breakfast turn out and their supervision of the inmates
during the exercise turn out was not the product of a judgment call
driven by legitimate social, economic, or political concerns. As we held in
Madden,
While most governmental actions involve some degree
of discretion, only those choices based upon the “meaningful
exercise of discretion” are immune from liability. The critical
distinction “is the one between a judgment that embodies a
professional assessment undertaken pursuant to a policy of
settled priorities and a fully discretionary judgment that
balances incommensurable values in order to establish those
priorities.” An immune government function is “one that
weighs competing ideals in order to promote those concerns
23
of paramount importance over the less essential, opposing
values.”
661 N.W.2d at 139 (quoting Graber, 656 N.W.2d at 164–65). There is no
evidence that, in their supervision of the inmates, the correctional staff
could have or did weigh competing ideals or balance incommensurable
values to promote those concerns of paramount importance. Rather, as
in Madden, the actions of the correctional staff “embod[ied] a professional
assessment undertaken pursuant to a policy of settled priorities.” Id.
The decisions made by Officer Walston in handling the situation
that unfolded during the breakfast turn out and the activity specialists’
supervision of the inmates in the gym during the exercise turn out were
ad hoc decisions. See Webster’s at 26 (defining “ad hoc” as “made,
established, acting, or concerned with a particular end or purpose” and
“without reference to wider application”). There is nothing in the record
to suggest that in performing their duties, the correctional staff could
have weighed competing ideals in order to determine how to supervise
the inmates.
We acknowledge the State’s reliance on several federal cases in
which the federal courts found the discretionary function exception
applicable against claims prison officials were negligent in failing to
protect inmates. See, e.g., Santana-Rosa v. United States, 335 F.3d 39,
43–44 (1st Cir. 2003) (finding prison’s decisions regarding maintenance
of cleaning supplies and inmate work assignments are susceptible to
policy-related analysis and therefore inmate’s FTCA claim for failure to
protect him from other inmate was held to fall within the discretionary
function exception); Cohan, 151 F.3d at 1344 (holding discretionary
function exception shielded federal prisoner’s claim asserting Bureau of
Prisons negligently assigned his attacker to a minimum security prison
on the basis that “[d]eciding how to classify prisoners and choosing the
24
institution in which to place them are part and parcel of the inherently
policy-laden endeavor of maintaining order and preserving security
within our nation’s prisons”); Calderon, 123 F.3d at 950 (holding that
when the inmate has presented no evidence the prison officials witnessed
any violation of prison regulations the actions are presumed grounded in
public policy and the discretionary function exception applies); Dykstra,
140 F.3d at 795–96 (holding “[w]hen established policy allows
governmental agents to exercise discretion, ‘it must be presumed that the
agent’s acts are grounded in policy when exercising that discretion’ ” to
dismiss inmate’s claim prison staff was negligent in failing to warn him
his youthful appearance put him at risk of harm before he waived his
option to be placed in protective custody (quoting United States v.
Gaubert, 499 U.S. 315, 324, 111 S. Ct. 1267, 1274, 113 L. Ed. 2d 335,
348 (1991))); Buchanan v. United States, 915 F.2d 969, 972 (5th Cir.
1990) (where prison officials and staff considered the potential for
violence in response to the announcement of the Cuban repatriation
agreement before deciding transferring the American prisoners would
heighten the tension and create greater fear among Cuban detainees and
that a lock-down would be extremely difficult and possibly counter-
productive, discretionary function exception applicable because prison
officials could and did consider and balance factors supported by social,
economic, or political policies); see also Feltes v. State, 385 N.W.2d 544,
547 (Iowa 1986) (noting ITCA was modeled after the FTCA and we give
great weight to relevant federal decisions). Most of these cases rely upon
the United States Supreme Court’s holding in Gaubert. See Santana-
Rosa, 335 F.3d at 43–44; Cohen, 151 F.3d at 1344; Calderon, 123 F.3d
at 950; Dykstra, 140 F.3d at 795. But see Buchanan, 915 F.2d at 972
25
(decided prior to Gaubert). Therefore, we find it helpful to consider
Gaubert and its analysis.
In Gaubert, a shareholder of an insolvent savings and loan
association brought an action against the United States under the FTCA.
499 U.S. at 320, 111 S. Ct. at 1272, 113 L. Ed. 2d at 345. After the
savings and loan went into receivership, the shareholder alleged
negligence of federal officers and directors in selecting the new officers
and directors and in participating in the day-to-day management of the
savings and loan. Id. The district court granted the government’s
motion to dismiss, holding all of the challenged actions fell within the
discretionary function exception to the FTCA. Id. The Supreme Court
granted certiorari.
In applying the second prong of the Berkovitz test, the Court noted:
Where Congress has delegated the authority to an
independent agency or to the Executive Branch to implement
the general provisions of a regulatory statute and to issue
regulations to that end, there is no doubt that planning-level
decision establishing programs are protected by the
discretionary function exception, as is the promulgation of
regulations by which the agencies are to carry out the
programs. . . . [T]he actions of Government agents involving
the necessary element of choice and grounded in the social,
economic, or political goals of the statute and regulations are
protected.
Id. at 323, 111 S. Ct. at 1274, 113 L. Ed. 2d at 347. Summarizing the
application of the test, the Court held:
[I]f a regulation mandates particular conduct, and the
employee obeys the direction, the Government will be
protected because the action will be deemed in furtherance
of the policies which led to the promulgation of the
regulation. If the employee violates the mandatory
regulation, there will be no shelter from liability because
there is no room for choice and the action will be contrary to
policy. On the other hand, if a regulation allows the employee
discretion, the very existence of the regulation creates a strong
presumption that a discretionary act authorized by the
26
regulation involves consideration of the same policies which
led to the promulgation of the regulations.
Id. at 324, 111 S. Ct. at 1274, 113 L. Ed. 2d at 347 (emphasis added)
(citation omitted). Thus, Gaubert held that
[w]hen established governmental policy . . . allows a
Government agent to exercise discretion, it must be
presumed that the agent’s acts are grounded in policy when
exercising that discretion. For a complaint to survive a
motion to dismiss, it must allege facts which would support
a finding that the challenged actions are not the kind of
conduct that can be said to be grounded in the policy of the
regulatory scheme.
Id. at 324–25, 111 S. Ct. at 1274–75, 113 L. Ed. 2d at 348. The Court
held that the focus was not on the subjective intent of the agent
exercising the discretion conferred by the regulation, but rather on the
nature of the actions taken and their susceptibility to policy analysis.
Thus, there is a presumption that discretionary acts performed pursuant
to relevant policies, including those performed in the day-to-day
operations, are entitled to the exemption. Id. at 332–33, 111 S. Ct. at
1278–79, 113 L. Ed. 2d at 352–53.
Although concurring in the judgment, Justice Scalia wrote
separately to voice his disagreement with the analysis employed by the
majority. Id. at 334, 111 S. Ct. at 1280, 113 L. Ed. 2d at 354 (Scalia, J.,
concurring in part and concurring in judgment). In his concurrence,
Justice Scalia examines the oft times confusing application of the second
portion of the two-prong Berkovitz test. Noting that the discretionary
function exception to the FTCA does not protect all governmental
activities involving choice, Justice Scalia observed that the choice “must
represent a ‘policy judgment.’ ” Id. at 335, 111 S. Ct. at 1280, 113
L. Ed. 2d at 354. While acknowledging that the planning/operational
dichotomy is wrong, Justice Scalia nevertheless argued “that the level at
27
which the decision is made is often relevant to the discretionary function
inquiry, since the answer to that inquiry turns on both the subject
matter and the office of the decisionmaker.” Id. at 335, 111 S. Ct. at
1280, 113 L. Ed. 2d at 355. In his view, a discretionary choice was
shielded from liability only “if the choice is, under the particular
circumstances, one that ought to be informed by considerations of social,
economic, or political policy and is made by an officer whose official
responsibilities include assessment of those considerations.” Id.
(emphasis added) (noting, as an example, the dock foreman’s decision to
compactly store bags of fertilizer would not be protected, even if he
calculated cost versus safety, because it was not his responsibility to
ponder such things).
We note Gaubert involved a motion to dismiss and the presumption
that when there is an established governmental policy that allows for
discretion, “it must be presumed that the agent’s acts are grounded in
policy when exercising that discretion.” Gaubert, 499 U.S. at 324, 111
S. Ct. at 1274, 113 L. Ed. 2d at 348. Although we have previously cited
Gaubert, see Goodman, 587 N.W.2d at 238; Schneider, 789 N.W.2d at
147, it does not appear that we have adopted this presumption, but
rather our analysis in our prior discretionary function cases are more in
line with Justice Scalia’s analysis in determining whether the
discretionary function exception is applicable. See Anderson, 692
N.W.2d at 366 (finding dean’s decision not to close library during
inclement weather could be and was based upon a balancing of public
policy factors); Madden, 661 N.W.2d at 140 (during performance of a
routine duty “public official did not weigh any broad-sweeping policies
before he decided not to perform a required inspection”); Ette, 656
N.W.2d at 69 (holding supervision of students “is not . . . driven by
28
public policy implications uniquely within the purview of school officials
and employees”); Messerschmidt, 654 N.W.2d at 883 (“Matters such as
when to lift a temporary road barricade do not require evaluation of
policies but instead involved implementation of everyday decisions
routinely made by the city.”); Doe, 652 N.W.2d at 445 (noting that it is
possible to articulate some notion of policy considerations involved in
any decision but that the administrative act of hiring, retaining, and
supervising an individual teacher does not involve the careful balancing
of competing interests, risks, and advantages, and does not elevate such
decision to the level of economic, political, or social policymaking);
Bellman, 617 N.W.2d at 19 (holding while a teacher’s supervisory duties
involve matters of judgment, policy considerations are not involved in the
decisions made by a teacher in supervising her class); see also Butler ex
rel. Biller v. Bayer, 168 P.3d 1055, 1067 (Nev. 2007) (holding decision to
parole inmate requires analysis of multiple social, economic, efficiency,
and planning concerns, but the actions of effectuating inmate’s
postparole placement, while it may have required the exercise of some
judgment or choice, were not actions based on the consideration of any
social, economic, or political policy); Martinez v. Maruszczak, 168 P.3d
720, 729 (Nev. 2007) (applying Berkovitz-Gaubert test in medical
malpractice case and clarifying that decisions at all levels of government,
including frequent or routine decisions, may be protected by the
discretionary act exception, but only if the decisions require analysis of
government policy concerns).
Because we have concluded the decisions made by the correctional
staff in the supervision of the inmates, in this instance, did not involve
the evaluation of broad public policy factors, we necessarily conclude the
State is not entitled to the discretionary function exception and the
29
district court did not err in denying the State’s motion for summary
judgment.
C. Intentional Tort Exception. The State also claims another
section of the ITCA bars Walker’s claim. The section provides:
The provisions of this chapter shall not apply with
respect to any claim against the state, to:
4. Any claim arising out of assault, battery, false
imprisonment, false arrest, malicious prosecution, abuse of
process, libel, slander, misrepresentation, deceit, or
interference with contract rights.
Iowa Code § 669.14(4). The legislature intended the ITCA to have the
same effect as the FTCA. Feltes, 385 N.W.2d at 547. Thus, we give great
weight to relevant federal decisions interpreting the Federal Act. Id.
The FTCA provides:
The provisions of this chapter and section 1346(b) of
this title shall not apply to—
....
(h) Any claim arising out of assault, battery, false
imprisonment, false arrest, malicious prosecution, abuse of
process, libel, slander, misrepresentation, deceit, or
interference with contract rights: Provided, That, with regard
to acts or omissions of investigative or law enforcement
officers of the United States Government, the provisions of
this chapter and section 1346(b) of this title shall apply to
any claim arising, on or after the date of the enactment of
this proviso, out of assault, battery, false imprisonment,
false arrest, abuse of process, or malicious prosecution.
28 U.S.C. § 2680 (2006). These provisions are commonly referred to as
the intentional tort exceptions to the Act. Sheridan v. United States, 487
U.S. 392, 394, 108 S. Ct. 2449, 2451, 101 L. Ed. 2d 352, 358 (1988).
The Supreme Court has examined this issue in two cases involving
negligence claims against government when an assault caused the
injuries to the claimant. See Sheridan, 487 U.S. at 393–94, 108 S. Ct. at
30
2451, 101 L. Ed. 2d at 358 (involving an assault on a civilian by an off-
duty serviceman); Muniz, 374 U.S. at 152, 83 S. Ct. at 1852, 10 L. Ed. 2d
at 809 (involving an assault on a prisoner by other prisoners). In Muniz,
the Supreme Court relied on Panella v. United States, 216 F.2d 622 (2d
Cir. 1954). In Panella, the court narrowly construed the FTCA and
limited its application to claims arising from intentional torts by
government employees. Id. at 624–25. The Panella decision is founded
on the principle that the essence of the claim against the government is
the negligence of their employees, not the assault. Id. at 624. To hold
otherwise would exonerate the government from all liability where the
injuries to the claimant were caused by an assault. Id.
Adopting the analysis in Panella and citing the holding in Muniz,
the Supreme Court limited the intentional tort exception to cases arising
out of assaults by federal employees. Sheridan, 487 U.S. at 398–400,
108 S. Ct. at 2454–55, 101 L. Ed. 2d at 360–62. Although we have not
decided this issue under the ITCA, we find Panella, Muniz, and Sheridan
are persuasive.
The basis of Walker’s claim is not that an employee of the State
inflicted an intentional tort, but rather the State was negligent in failing
to protect him from an assault by another prisoner. The whole purpose
of the ITCA is to waive sovereign immunity for the negligent acts of the
State. To limit the State’s liability whenever an assault causes the
claimant’s damages would relieve the State of its liability for its negligent
acts. This construction of the intentional tort exception is contrary to
the intent of the legislature when it enacted the ITCA. In construing
statutes, we are required to determine legislative intent. Auen v.
Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004). As long as
the claimant can show the State is negligent in performing a duty to
31
protect a person from an assault, the intentional tort exception is not
applicable. Accordingly, we affirm the district court’s ruling on the
intentional tort exception.
IV. Disposition.
We find discretionary function and intentional tort exceptions to
the ITCA do not apply under the facts of this case. Therefore, we hold
the district court was correct in denying the State’s motion for summary
judgment. Thus, we affirm the judgment of the district court and
remand this case for trial.
AFFIRMED AND CASE REMANDED.
All justices concur except Waterman and Mansfield, JJ., who
concur in part and dissent in part.
32
#09–0663, Walker v. State
MANSFIELD, Justice (concurring in part and dissenting in part).
I concur in part and dissent in part. I would find that Officer
Walston’s response to the “verbal altercation” involved an exercise of
discretion for which the State is immune from suit under Iowa Code
section 669.14(1) (2005).
First, I believe the facts are clear that prison regulations gave
Officer Walston discretion in responding to the prisoner argument that
occurred during the breakfast turnout. As noted by the majority, Kevin
Walker criticizes Officer Walston’s job performance in six different ways.
However, the majority can point to only one area in which Walker
conceivably did not have discretion, that is, the requirement that “a
serious threat to the safety and order of the employees, offenders, or
property of an institution shall be reported by the employee observing the
incident.” But even here, the majority notes that Walker did file a report,
and the regulations do not state how promptly a report has to be filed.
Unsurprisingly, in this instance, the report concerning the incident did
not get filed before Walker was struck in the gym around 8:15 a.m. the
same morning. In short, this part of the litigation involved an effort to
second-guess a correctional officer’s exercise of judgment.
Having found that Officer Walston was exercising discretion in how
he managed this inmate-to-inmate confrontation, I would find the State
immune from suit relating to his acts or omissions. I see no reason why
Iowa’s discretionary function exception cannot apply to “decisions made
by the correctional staff in the supervision of inmates.” Iowa Code
section 669.14(1) is generally worded. It provides the State shall be
immune from tort liability “based upon the exercise or performance or
the failure to exercise or perform a discretionary function or duty on the
33
part of a state agency or an employee of the state, whether or not the
discretion be abused.” Iowa Code § 669.14(1). Thus, under the statute,
the individual exercising discretion can be any state “employee,”
including someone performing the difficult and demanding job of a
correctional officer.
Iowa Code section 669.14(1) is directly modeled after the
discretionary function exception in the Federal Tort Claims Act. See 28
U.S.C.A. § 2680(a) (West, Westlaw through P.L. 112–24 approved July
26, 2011). As noted by the majority, there are many federal precedents
applying the federal discretionary function exception to claims brought
by prison inmates against prison staff.
The great weight of the case law suggests that if a
decision regarding the protection, safety, and classification of
prisoners is discretionary (i.e., there are no mandatory
directives), then such a decision is grounded in public policy
and the discretionary function exception applies.
Sledge v. United States, 723 F. Supp. 2d 87, 96–97 (D. D.C. 2010) (citing
numerous cases).
This outcome follows from the United States Supreme Court’s
decision in United States v. Gaubert, 499 U.S. 315, 111 S. Ct. 1267, 113
L. Ed. 2d 335 (1991). There, the Supreme Court held that, if a regulatory
scheme affords discretion and the challenged actions can be said to be
grounded in the policy of the regulatory scheme, the discretionary
function exception applies. Gaubert, 499 U.S. at 324–25, 111 S. Ct. at
1274–75, 113 L. Ed. 2d at 347–48. The nature of the conduct, rather
than the status of the actor, governs whether the exception applies. Id.
at 322, 111 S. Ct. at 1273, 113 L. Ed. 2d at 346. Thus, for example, if a
regulation allows for discretion in responding to a specific prison
situation and the prison official’s response can be said to be related to
34
legitimate prison policy considerations, the discretionary exception
function applies and the government is immune from suit. If this case
were in federal court concerning an incident that occurred in federal
prison, I have little doubt that Walker would be unable to sue over
Officer Walston’s alleged acts and omissions.
Today’s decision, however, limits the availability of the
discretionary function exception to situations in which the decision
involved the actual “evaluation of broad public policy factors” or the
“weigh[ing of] competing ideals.” This approach effectively transforms
the discretionary function exception into an elites-only exemption.
Correctional officers are not such an elite. They perform a dangerous,
stressful, but nonetheless discretion-filled job that does not allow them
the luxury of pondering broad public policy implications or weighing
competing ideals.
I think Gaubert is a sensible construction of the statutory language
and ought to be the rule in Iowa. In Goodman v. City of Le Claire, 587
N.W.2d 232, 238 (Iowa 1998), our court endorsed the Gaubert standard.
We expressly disavowed earlier case law “holding that the discretionary
function exception does not reach any decisions made at the operational
level,” such as prison guards. Goodman, 587 N.W.2d at 238.
Just last year, we reiterated the importance of federal precedent in
this area. We said, “As the immunity for discretionary functions in our
statute has its genesis in the federal tort claims act, we have been guided
by federal decisions applying the doctrine.” Schneider v. State, 789
N.W.2d 138, 146 (Iowa 2010). We have made similar statements before
many times. See, e.g., Ette ex rel. Ette v. Linn-Mar Cmty. Sch. Dist., 656
N.W.2d 62, 67 (Iowa 2002) (“Because the discretionary function
exception has its genesis in the federal tort claims act, we have been
35
guided by federal decisions applying its mandate.”); Shelton v. State, 644
N.W.2d 27, 30 (Iowa 2002) (“The Tort Claims Act is especially appropriate
for applying the sometimes criticized but familiar rule that we are guided
by federal decisions interpreting federal statutes on which our own
statutes are modeled.”); Goodman, 587 N.W.2d at 236 (“We have
recognized that the legislature intended the Iowa State Tort Claims Act to
have the same effect as the Federal Tort Claims Act because the Iowa act
is modeled after the federal act. For this reason, we have given great
weight to relevant federal decisions interpreting the federal act.”
(Citation omitted.)); Butler v. State, 336 N.W.2d 416, 419 (Iowa 1983)
(The state discretionary function exception is “identical to the
discretionary function exception of the Federal Tort Claims Act, and we
are aided by federal interpretations of that provision.” (Citation
omitted.)); see also Adam v. Mount Pleasant Bank & Trust Co., 340
N.W.2d 251, 252 (Iowa 1983) (“Because our statute is based on the
federal Tort Claims Act, we assume our legislature intended it to have the
same meaning as the federal statute.”); Hubbard v. State, 163 N.W.2d
904, 911 (Iowa 1969) (same).
I agree that in some decisions since Goodman we seem to have
followed a non-Gaubertian approach to the discretionary function
exception. That approach, as the majority accurately explains, bears
more of a resemblance to Justice Scalia’s separate opinion in Gaubert.
See Anderson v. State, 692 N.W.2d 360, 366–67 (Iowa 2005); Madden v.
City of Eldridge, 661 N.W.2d 134, 139–40 (Iowa 2003); Graber v. City of
Ankeny, 656 N.W.2d 157, 165–66 (Iowa 2003); Messerschmidt v. City of
Sioux City, 654 N.W.2d 879, 882–83 (Iowa 2002). That approach also
arguably revives the concept that decisions made at the operational level
36
cannot be subject to the discretionary function exception—a principle we
said we were discarding in Goodman. 587 N.W.2d at 238.
Yet, in none of our prior cases have we said we were departing
from Gaubert or overruling Goodman. I would not take that step today.
Rather, I would continue to follow Gaubert and Goodman and apply them
to the prison conditions at issue in this case.
Accordingly, I would find that Officer Walston was exercising
prison-related discretion when he allegedly did not take sufficient steps
to protect Walker from a threat. Officer Walston’s testimony describes
the prison policy considerations that entered into his decisions:
[M]ost people, when they get loud in the middle of the day
room so it draws your attention to the problem, most
people—not all, as you say—are looking for an out. They’re
looking for the CO to become involved so they don’t have to
come to blows. That—that’s the way it works around here a
lot of times.
....
They want you to get involved to say, hey, you need to
knock that off. There ain’t going to be any fighting here. I
got my eyes on you. I’m watching you. Don’t—don’t keep
going on. And that gives everybody an easy out. So they
don’t have to lose face to their peers inside here. . . .
....
. . . [T]hat’s the first continuum of how you deal with
it. You approach them. It’s your presence. You talk to
them. You tell them. You see how it’s going to work out.
That’s how it progresses.
It doesn’t always start from one and go to like one,
two, three, four on a policy order in the way it’s presented.
Sometimes you have to skip over if it’s—if it’s turned about,
you have to go to a higher degree right off the bat, but on a
normal progression, it’s just like minor reports. You’d go
with them. You tell them not to do it. You give them a
verbal warning. You give them the written. Make them do a
responsibility report.
37
It all goes up the line unless they just don’t listen and
you have to go to a higher degree. You don’t want to start at
the top. You have to have somewhere to go.
Of course, even under my colleagues’ approach, the fact finder may
well decide that Officer Walston acted reasonably and thus reject
Walker’s claim. However, in adopting section 669.14(1), I believe the
legislature intended to provide an immunity for these kinds of judgment
calls by a correctional officer.
I agree with my colleagues’ conclusion that the discretionary
function exception does not apply to Walker’s allegation that Activity
Specialists Bogdanski and Stipe failed to properly supervise the exercise
turnout at which Walker was actually struck and injured. This
allegation appears to involve garden-variety negligence rather than an
exercise of prison-related discretion. I also agree that the intentional tort
exception does not apply here and thus join part III. C. of the majority
opinion.
For the foregoing reasons, I concur in part and dissent in part.
Waterman, J., joins this concurrence in part and dissent in part.