Joshua Rich v. United States, 4th Cir. (2015)
Joshua Rich v. United States, 4th Cir. (2015)
Joshua Rich v. United States, 4th Cir. (2015)
No. 14-7204
JOSHUA RICH,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg.
Gina M. Groh,
District Judge. (3:13-cv-00137-GMG-RWT)
Argued:
Decided:
Penitentiary
in
Bruceton
Mills,
West
Virginia
(USP
several
recovered
at
including
liver
times.
the
nine-inch-long
scene.
Rich
laceration,
which
homemade
suffered
required
knife
serious
numerous
was
injuries,
invasive
surgeries.
Rich sued the United States under the Federal Tort Claims
Act (FTCA), 28 U.S.C. 1346(b), alleging that prison officials
had been negligent in failing to protect him from the attack.
The district court granted the governments motion to dismiss
for lack of subject matter jurisdiction, concluding that the
discretionary function exception to the FTCA applied both to the
prison
officials
attackers,
as
well
decision
as
to
not
the
to
manner
separate
in
which
Rich
the
from
his
officials
the
prison
officials
discretionary
decision
not
to
prison
officials
did
not
perform
the
searches
properly,
we
I.
In 2008, the United States District Court for the District
of Utah sentenced Rich to fifty-seven years imprisonment for
armed bank robbery, in violation of 18 U.S.C. 2113(a) and (d),
and for using and carrying a firearm in relation to a crime of
violence, in violation of 18 U.S.C. 924(c).
white
supremacist
group,
the
Aryan
Brotherhood,
for
his
penitentiaries,
continually
by
the
Aryan
contends
Brotherhood
that
and
he
was
required
targeted
separation
Rich suffered
of
failed
negligence
to
protect
asserting
him
from
that
the
harm.
prison
Rich
officials
alleged
that
had
the
officials should have kept him separated from his attackers, and
that
the
officials
failed
to
screen,
wand,
or
search
the
kinds
of
discretionary
conduct,
applied
both
to
the
and
to
the
manner
in
which
the
prison
officials
Post
Orders
relating
to
the
SHU
require
that
an
that inmates will be pat searched and screened with the handheld
metal
detector
recreation cages.
before
entering
and
upon
exiting
the
Moreover, according to
reviewing
with
the
these
attachments,
government
that
the
the
district
discretionary
court
function
also
officials
is
concluded
consistent
that
with
the
discretion
the
public
afforded
policy
of
The
prison
granting
district
to
any
court
further
discovery
concluded
regarding
that
Rich
whether
was
not
additional
and
searches.
governments
jurisdiction.
Accordingly,
motion
to
the
dismiss
district
for
lack
court
of
granted
subject
the
matter
II.
On appeal, Rich challenges the district courts conclusion
that the discretionary function exception applies to the prison
officials conduct.
Rich also
argues that the Post Orders and other policies imposed mandatory
directives that the prison officials search and patdown inmates
prior to placing them in the recreation cage, thereby precluding
application
of
the
discretionary
function
exception.
Rich
that
there
are
no
directives
governing
the
separation
of
that
function exception.
justify
application
of
the
discretionary
that
would
establish
the
district
courts
jurisdiction.
A.
We review a district courts decision dismissing a case for
lack of subject matter jurisdiction de novo.
Taylor v. Kellogg
Brown & Root Servs., Inc., 658 F.3d 402, 408 (4th Cir. 2011).
We
review
discretion.
denial
of
jurisdictional
discovery
for
abuse
of
Cir. 2013).
Although the United States typically is immune from suit,
the FTCA provides a waiver of this sovereign immunity when the
federal
government
would
be
liable
to
the
claimant
in
accordance with the law of the place where the act or omission
occurred for certain torts, such as negligence, committed by
federal employees acting within the scope of their employment.
28
U.S.C.
1346(b)(1).
However,
8
under
the
FTCA,
the
situations
involving
the
exercise
or
performance
or
the
28
U.S.C. 2680(a).
To
determine
discretionary
test.
whether
function
First,
conduct
exception,
court
qualifies
courts
considers
apply
whether
for
the
two-pronged
the
challenged
When a
Id. at 322-
23.
A
defendants
assertion
that
the
discretionary
function
569
F.3d
subject
matter
175,
180
jurisdiction,
(4th
a
Cir.
2009).
defendant
may
In
challenging
raise
facial
challenge that, even if all the alleged facts are true, the
complaint
nonetheless
fails
to
establish
jurisdiction.
See
that
could
establish
subject
matter
jurisdiction.
Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009).
In
Id.
Under
Id.
If, however,
attach
to
the
plaintiffs
allegations.
Id.
at
193.
And, most relevant here, the court should resolve the relevant
factual disputes only after appropriate discovery.
In re KBR,
Inc.,
Cir.
Burn
Pit
Litig.,
744
F.3d
326,
334
(4th
2014)
(citation omitted).
B.
We
first
address
whether
the
discretionary
function
To do so, we consider
32223.
The
BOP
is
safekeeping,
required
to
provide
care
of
all
and
for
the
persons
protection,
charged
Cir.
or
18 U.S.C.
discretion
mandates.
with
regarding
the
implementation
of
those
1998).
This
discretion
is
evident
in
the
regulations
524.7076.
Although
28
C.F.R.
524.72(d)
See 28 C.F.R.
provides
that
as
prison
gang]
(emphasis
added),
nothing
in
this
prison
officials.
Instead,
prison
officials
must
whether
524.72(f).
inmates
may
Given
require
this
11
separation.
general
language
See
in
28
the
exception,
are
namely,
implicated
in
whether
the
considerations
discretion
given
of
public
to
prison
policy-laden
endeavor
of
maintaining
order
and
Cohen, 151
F.3d at 1344; see also Alfrey v. United States, 276 F.3d 557,
563-65 (9th Cir. 2002); Calderon v. United States, 123 F.3d 947,
951
(7th
Cir.
1997).
proper
classification
levels
are
inherently
economic policy.
Factors
of
such
inmates,
grounded
as
and
in
available
resources,
appropriate
social,
security
political,
and
791, 796 (8th Cir. 1998); cf. Bell v. Wolfish, 441 U.S. 520,
547-48 (1979) (Prison administrators . . . should be accorded
wide-ranging deference in the adoption and execution of policies
and
practices
that
in
their
judgment
12
are
needed
to
preserve
internal
order
and
discipline
and
to
maintain
institutional
security.).
We agree with the reasoning of our sister circuits.
Prison
and
separated
several
whether
from
policy
one
to
keep
another.
considerations
certain
Because
for
individuals
these
prison
or
decisions
gangs
invoke
administrators,
they
the
discretionary
function
We therefore hold
exception
shields
the
prison
history
discretionary
decisions
of
with
the
function
the
Aryan
Brotherhood
exception
officials
still
regarding
Rich
could
uncover
in
as
would
true,
apply
prisoner
to
the
the
placement,
discovery
would
establish
jurisdiction, we hold that the district court did not abuse its
discretion in refusing Rich discovery regarding the officials
decision to not separate Rich from his attackers.
736 F.3d at 307-08.
13
See Durden,
C.
We reach a different conclusion regarding the availability
of discovery with respect to Richs allegations that the prison
officials did not search his attackers properly before placing
them in the recreation cage.
with
the
merits
example,
in
of
Richs
claim
regarding
the
support
of
the
governments
motion
to
allege
that
the
prison
officials
completely
failed
to
fairly to allege both that the officials did not perform the
searches properly, and that the officials failed to perform the
searches
in
any
manner.
Rich
maintained
this
position
if
we
accept
the
prison
officials
uncontested
the
question
whether
the
officials
performed
those
patdowns properly.
[a]ny
shall
pat
search
be
conducted
as
outlined
in
the
more
specific
directives
exist
concerning
the
performance of patdowns. 7
Such an
we
observe
even
if,
that
Rich
under
may
be
typical
able
to
establish
circumstances,
the
officials
perform
patdowns.
The
Second
Circuit
has
decision
when
that
conduct
is
marked
by
individual
carelessness or laziness.
F.3d
2000)
(concluding
would
not
106
function
(2d
Cir.
exception
apply
that
to
the
discretionary
prison
officials
if
that
inspection
was
performed
in
carelessly
inattentive manner).
at
least
inattention.
shielded
by
suggests
the
possibility
of
careless
discretionary
function
exception
because
no
when
consideration
of
provides
inquiry
evidence.
procedural
would
require
See
Kerns,
585
safeguard
the
F.3d
at
193.
This
In
Accordingly,
discovery
on
the
issue
whether
and
how
the
prison
officials
existed
regarding
the
manner
of
performing
the
III.
For these reasons, we affirm the district courts decision
that the discretionary function exception applies to the prison
officials decision not to separate Rich from his attackers.
However, we vacate the district courts judgment with respect to
the issue of the prison officials performance of the patdowns
and searches, and remand for additional proceedings consistent
with this opinion.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
18