Jordan v. USA

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JOSEPH RAY JORDAN,

Plaintiff,

v. Case No. 18-cv-1100-NJR

UNITED STATES OF AMERICA,

Defendant.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Plaintiff Joseph Ray Jordan, an inmate of the Federal Bureau of Prisons (“BOP”)

who is currently incarcerated at the Federal Correctional Institution in Butner, North

Carolina (“FCI – Butner”), brings this action for alleged violations of his federal rights

while he was incarcerated at the United States Penitentiary in Marion, Illinois (“USP-

Marion”). Jordan was allowed to proceed on a single claim in his lawsuit against the

United States of America pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C.

§ 1346, et seq.

Jordan alleges staff at USP-Marion failed to protect him from an assault by another

inmate. He also alleges that staff were negligent in placing him in the Special Housing

Unit (“SHU”) after surgery on his jaw, which was broken in the assault. This matter is

now before the Court on a motion for summary judgment filed by the United States.

BACKGROUND

A. Procedural Background

The pending motion for summary judgment has a long, complicated procedural

history. After the United States filed its motion (Doc. 137), Jordan, through assigned

counsel, filed a response (Docs. 140, 141). The United States filed a reply brief (Doc. 142).

Jordan then filed a pro se affidavit in support of the response that was stricken

because he was represented by counsel (Docs. 143, 144). Jordan’s counsel then filed the

affidavit on behalf of Jordan (Doc. 145). Jordan next filed a supplemental affidavit

(Doc. 146) and a motion expressing concern with his assigned counsel’s response and

representation in the case (Doc. 147).

After a hearing on Jordan’s motion regarding his assigned counsel (Doc. 149), the

Court allowed assigned counsel to withdraw and granted Jordan leave to file a pro se

supplemental response (Id.). After several extensions of time and motions regarding

Jordan’s access to discovery, Jordan finally filed his pro se response in April 2023

(Doc. 192). Jordan also filed a submission of exhibits (Doc. 189), a notice (Doc. 191), a

supplemental affidavit (Doc. 194), a motion requesting the Court accept his “oversized”

filing (Doc. 190), a cross motion for summary judgment (Doc. 193), and a notice with

request for Court action (Doc. 195). To the extent Jordan requests the Court accept his

oversized response (Doc. 192) and exhibits (Doc. 189), the motion (Doc. 190) is

GRANTED.

The United States filed a reply to Jordan’s pro se response to its motion (Doc. 196).

Jordan sought leave to file a sur-reply to the United States’s reply brief, but the Court

denied his request (Doc. 200). Jordan subsequently filed a verified notice regarding, and

reply to, the United States’s reply brief (Doc. 203). Although not technically styled as a

sur-reply, the “notice” is clearly an attempt by Jordan to file the sur-reply previously

denied by the Court. To the extent Jordan seeks to file a sur-reply, the “notice” is stricken

(Doc. 203).1

1. Cross Motion for Summary Judgment (Doc. 193)

In addition to his responsive brief, Jordan filed a cross motion for summary

judgment (Doc. 193). The deadline for submitting a dispositive motion was April 15, 2022

(Doc. 136). As mentioned above, Jordan was granted leave to file a supplemental response

to Defendant’s motion for summary judgment (Doc. 149). At no point did the Court grant

Jordan leave to file a dispositive motion of his own (Docs. 155, 163, 166, 172, 179, 182,

185). Jordan did previously request an extension of time to file his own summary

judgment motion, but the Court denied the request—noting that the dispositive motion

deadline had long since passed (Doc. 180). The deadline to file a dispositive motion was

never extended, nor was Jordan granted leave to file a dispositive motion. Although

Jordan argues that he believed a cross motion would have been deemed timely when he

was granted an opportunity to remedy any shortcomings by his counsel (Doc. 203, p. 5),

he is mistaken. The Court was clear that Jordan was granted time to file a supplemental

response, not his own dispositive motion. Thus, his cross motion for summary judgment

is untimely. As a result, Jordan’s cross motion for summary judgment (Doc. 193) is

1 To the extent his “notice” argues that his cross motion for summary judgment should be

considered timely filed, the Court will consider the argument in reviewing the cross motion.

STRICKEN from the docket as improperly filed.

2. Notice and Request for Court Action (Doc. 195)

After submitting his responsive brief, Jordan filed another document, a “notice

and request for appropriate action.” His “notice” states his objection to the nondisclosure

of, and the lack of access to, admissible evidence that is in the possession and control of

the United States (Doc. 195). In essence, Jordan seeks to rehash previous discovery orders

in this case and to conduct additional discovery. He requests various BOP records that

were previously requested, as well as documents that Jordan alleges his previous counsel

neglected to seek despite requests from Jordan to do so (Id. at pp. 9-10). This includes

depositions of several employees, guards, and BOP experts that Jordan asked to depose,

but that assigned counsel chose not to depose—over Jordan’s objections (Id. at p. 10). In

a footnote in his motion, Jordan also seeks the reconsideration of all previous Orders the

Court issued related to his access to discovery (Doc. 195, p. 1).

Jordan, once again, requests that the Court re-open discovery and allow him to

seek additional documents that he believes are relevant to his claims. He also seeks to

rehash all discovery issues previously addressed by this Court. Discovery in this case has

long since closed. Further, the Court has addressed Jordan’s issues with discovery and

denied previous requests to reconsider those Orders (Docs. 172, 179, 180). The summary

judgment motion has now been fully briefed. The Court denies Jordan’s request to once

again re-open and allow for additional discovery.

B. Factual Background

1. The Communications Management Unit

At the time of the events in his lawsuit, Jordan was housed in the Communications

Management Unit (“CMU”) at USP-Marion (Doc. 137-1, p. 1). Kathy Hill, the Intelligence

Research Specialist (“IRS”) for the CMU at USP-Marion, attested in an affidavit that the

CMU is a self-contained general population housing unit that allows for more effective

monitoring of communications between inmates in the unit and the community (Id. at

p. 2). The unit was established “to house inmates who, due to their current offense of

conviction, offense conduct, or other verified information, require increased monitoring

of communications with persons in the community.” (Id. at p. 7). The unit itself has more

guards than a regular unit (Doc. 140-2, pp. 26-27). There are also different security level

inmates in the unit (Doc. 140-1, pp. 32-33).

Inmates are designated to the unit in accordance with BOP Program Statement

(“PS”) 5214.02, Communications Management Units (Doc. 137-1, pp. 6-19) The criteria by

which an inmate may be designated to the CMU is found in 28 C.F.R. § 540.201 and

PS 5214.02 (Id. at p. 2, 6). The BOP’s Counter Terrorism Unit (“CTU”) assesses the

information prescribed by PS 5214.02, reviewing the inmate’s current offense of

conviction, his likelihood of contacting victims, whether he committed prohibited activity

related to misuse of approved communication methods, and any protentional threat to

the safe, secure, and orderly operation of prison facilities as a result of communications

(Id. at p. 8-9). The referral is then sent to BOP’s Office of General Counsel who reviews

the referral and sends it back to the CTU to be forwarded to the Assistant Director,

Correctional Programs Division (Id.). The Assistant Director has the authority to approve

the designation to the CMU (Id. at pp. 2, 9). Jordan was designated to the CMU prior to

the promulgation of 28 C.F.R. § 540.200, et seq., but the designation criteria and process is

identical to the criteria used when Jordan was designated to the CMU, except that final

approval authority was given to the Regional Director of the North Central Regional

Office instead of the Assistant Director of the Correctional Programs Division (Id. at p. 2).

Jordan was designated, in part, because his conviction involved threatening

communications (Doc. 140-2, p. 23; Doc. 137-1, pp. 22).

2. The Assault

On December 10, 2014, Jordan was assaulted by Inmate Menter. Portions of the

assault were captured on surveillance video (Doc. 137, Exhibit H, submitted video

footage). Inmate Menter approached Jordan’s cell and stated, “I’m here to fight” and tried

to come into Jordan’s cell (Doc. 137-2, p. 26). Jordan struggled to keep Menter out of the

cell. Menter then walked away and went to the mop closet (Id. at pp. 26-27; Doc. 137-1,

p. 25). Menter returned to Jordan’s cell with a weapon, and the two inmates again

struggled inside the cell (Id. at p. 27; Doc. 137-1, p. 25; Exhibit H). During the struggle,

Jordan fell into a concrete shelf, breaking his jaw (Doc. 137-2, p. 28; Doc. 137-1, p. 25). The

two inmates fell to the ground, and Menter left the cell (Id.). During the assault, two other

inmates walked up and stood directly outside of Jordan’s cell (Doc. 137, Exhibit H).

Jordan testified that he did not know the catalyst for Menter’s assault (Doc. 137-2,

p. 33). Jordan testified that the Muslim inmates in the unit thought that he did not like

Muslims based on prior statements (Id. at pp. 32-40). He also had a son in the Army and

spoke about him to other inmates (Id. at p. 35). He recalled an earlier interaction with

Inmate Shnewer, one of the inmates Jordan testified was standing outside of the cell

during the attack, which occurred the year of—or a couple of years before—the assault

(Id. at pp. 36-39). He also recalled learning at some point that Shnewer had asked that

Jordan be removed from the unit (Id. at p. 36, 39). But Jordan did not recall any previous

interactions with Menter. Jordan testified, however, that he believed Shnewer directed

Menter in the assault (Id. at pp. 32-40). He acknowledged that no one told him Shnewer

directed the assault, and his beliefs were based on assumptions (Id. at p. 39-41). He

ultimately testified that he did not know the reason for the attack (Id. at p. 42).

Jordan previously wrote several copouts (complaints) prior to the assault about

Muslim inmates improperly taking non-Muslim, non-flesh eater’s meal trays (Doc. 137-

1, pp. 29-69). Jordan’s December 2013 copout stated that he was complaining “for the

umpteenth time” about there not being enough “no-flesh” meals for the unit because

inmates who were not on the diet were taking the meals (Id. at p. 54). Jordan indicated

that he believed the problem was “likely to boil over” because he had seen several fights

between inmates trying to pick another inmate’s tray (Id.). He often complained about

inmates taking items and trays from the “no-flesh” meals, noting that Muslim inmates

often took desirable items from the “no-flesh” trays (Id. at pp. 29-69, 52). On July 22, 2014,

he complained that an inmate was stealing trays (Id. at p. 60). Jordan indicated the inmate

stealing the trays threatened to stab inmates who complained about his actions. Jordan

did not state the name of the inmate stealing trays (Id. at pp. 60-61).

3. Investigation of the Assault

Jordan did not report the assault until the next day (Doc. 137-2, pp. 69-70). He

informed staff that he fell on the yard and injured his jaw (Id. at p. 70; 137-1, pp. 22, 69).

In addition to his injured jaw, Jordan had bruising to his chest, forearms, and upper back,

as well as scrapes on his arms (Doc. 137-2, p. 73; 137-3, p. 19). He was transferred to a

local hospital and then to Deaconness Hospital in Evansville, Indiana, for a fractured jaw

(Doc. 137-3, p. 16). Jordan underwent surgery to repair his jaw, which resulted in his jaw

being wired shut (Id. at p. 8). Staff later discovered a note from an anonymous source

indicating that Jordan was assaulted by Menter over the food tray issues (Doc. 141-2, p. 3).

Mark Deloia, a shift lieutenant and investigator, was assigned to investigate the

incident (Doc. 140-1, p. 17). During the subsequent investigation, Menter refused to be

interviewed, but photos documented abrasions to his hands and wrists (Doc. 140-1,

pp. 24; Doc. 137-1, p. 25). Video footage of portions of the assault were reviewed as part

of the investigation (Doc. 137-1, p. 27). Deloia testified that monitors for the video feed

were housed in the lieutenant’s office and the control room (Doc. 140-1, pp. 36-37). He

testified that it was not possible to watch every camera in the institution 24/7, and there

were no guards designated to watch videos (Id. at pp. 37-38). Christopher Davis, a captain

at USP-Marion, stated that there were not enough personnel to always monitor cameras

(Doc. 137-4, p. 2). Nor did a BOP regulation, program statement, or other directive require

staff to be present in all areas of the prison or monitor all surveillance cameras (Id.).

Similarly, Hill stated in her affidavit that due to the “distribution of resources in the form

of manpower, officers cannot be in every location within the facility at all times.”

(Doc. 137-1, p. 3). She testified at her deposition that the monitors also record incidents,

which can be retrieved and reviewed (Doc. 140-2, pp. 53-54). But no staff were solely

responsible for monitoring cameras because “[t]hat’s not a job assignment with the

Bureau of Prisons.” (Id. at p. 62). Nor did the prison have the manpower to always

monitor every camera (Doc. 137-7, p. 17).

Because officers cannot be in all areas at once, they conduct irregular rounds

throughout the unit and conduct searches of cells, common areas, and inmates (Doc. 137-

4, p. 2; 137-7, pp. 13-14). Officers move throughout the unit frequently but cannot always

oversee all activities in the unit (Doc. 137-4, p. 2). Davis testified that each officer is tasked

with conducting five cell searches and five common area searches during a shift

(Doc. 137-7, p. 17). But there is no written requirement that a specific common area or cell

be searched at any given time (Id. at p. 18; 137-4, pp. 2-3).

4. Surgery and After-Care

After his surgery, Jordan testified that the surgeon informed him and the BOP that

there was a risk he might throw up, which could cause Jordan to choke due to his jaw

being wired shut (Doc. 137-2, p. 46). The hospital issued Jordan a pair of wire clippers in

the event he had to release the wires in an emergency (Id.; Doc. 137-3, p. 8).

Jordan was placed in a cell in the SHU due to the lack of a long-term medical

observation unit at Marion (Id.; Doc. 137-4, p. 3). Davis stated in his affidavit that although

the medical unit has a place for inmates to be kept for short term observation, the unit

lacks a location for an extended stay (Doc. 137-4, p. 3). Instead, inmates requiring long

term observation are often placed in the SHU because it allows for more frequent contact

with officers (Id. at p. 4; Doc. 137-5, pp. 12-13). Davis stated that officers made rounds in

the SHU twice per hour (Doc. 137-4, p. 4). Jordan testified that officers in the SHU made

checks on the cells once an hour, and Jordan saw medical staff two or three times a day

(Doc. 137-2, p. 47). Jordan also acknowledged that he received access to the clippers,

which were chained to the bars of his cell (Id. at p. 46; Doc. 137-3, p. 8). Jordan feared that

he would vomit if he took his medication and refused pain medication (Id. at p. 46;

Doc. 137-3, p. 3). He testified that he believed he should have been placed under medical

observation in a medical unit (Doc. 137-2, p. 46). Jordan remained in the SHU on medical

observation for seven weeks (Id. at p. 47).

5. Jordan’s First Amended Complaint

On August 22, 2017, Jordan filed his Complaint (Doc. 1). He filed his First

Amended Complaint in October 2018 (Doc. 16). Jordan’s First Amended Complaint, as

construed by District Judge J. Phil Gilbert, alleged that his assault was the result of his

conditions of confinement, due to the housing of inmates of varying levels of aggression

in the same unit without adequate security staff (Doc. 19, p. 2). Jordan further alleged

after his injury and surgery, he was improperly placed in the unit’s Special Housing Unit

(“SHU”) instead of the healthcare unit (Id.). After a merit review of the First Amended

Complaint pursuant to 28 U.S.C. § 1915A, Jordan was allowed to proceed on the

following claim:

Count 1: Defendant United States, by and through the negligence or

deliberate indifference of the BOP Director and Unknown

Staff at USP-Marion, CMU Officers, and USP-Marion

Administrators is liable for Jordan’s 2014 assault and

resulting injuries under the FTCA.

(Id. at p. 3).

Jordan identifies seven ways in which officials and staff at USP-Marion failed in

their duty to protect him:

(1) Housing him in an open unit with higher security inmates, including an

inordinate amount of Muslim gang members;

(2) Failing to provide reasonable measures to guarantee his safety;

(3) Failing to investigate and otherwise take action regarding his complaints

about the Muslim gang members, their complaints about him, dangers in

the unit, and issues with security;

(4) Failing to provide any level or means of protection just before and at the

time of the incident;

(5) Failing to supervise inmate activity, enforce rules, and follow safety and

security protocol;

(6) Housing mentally unstable, dangerous inmates in a general population

unit; and

(7) Placing him in solitary confinement with his jaw wired closed without

adequate supervision or any means to summon staff in an emergency.

(Doc. 192, p. 3)

LEGAL STANDARDS

A. Summary Judgment Standard

Federal Rule of Civil Procedure 56 governs motions for summary judgment.

Summary judgment is appropriate if the movant shows that there is no genuine dispute

as to any material fact and that the movant is entitled to judgment as a matter of law.

Archdiocese of Milwaukee v. Doe, 743 F.3d 1101, 1105 (7th Cir. 2014), citing FED. R. CIV. P.

56(a). Accord Anderson v. Donahoe, 699 F.3d 989, 994 (7th Cir. 2012). A genuine issue of

material fact remains “if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Accord

Bunn v. Khoury Enter., Inc., 753 F.3d 676, 681-82 (7th Cir. 2014).

In assessing a summary judgment motion, the district court views the facts in the

light most favorable to, and draws all reasonable inferences in favor of, the nonmoving

party. Anderson, 699 F.3d at 994; Delapaz v. Richardson, 634 F.3d 895, 900 (7th Cir. 2011).

As the Seventh Circuit has explained, as required by Rule 56(a), “we set forth the facts by

examining the evidence in the light reasonably most favorable to the non-moving party,

giving [him] the benefit of reasonable, favorable inferences and resolving conflicts in the

evidence in [his] favor.” Spaine v. Community Contacts, Inc., 756 F.3d 542, 544 (7th Cir.

2014).

B. Federal Tort Claims Act

The FTCA permits suits against the United States for personal injuries caused by

the “negligent or wrongful act or omission of any employee of the Government while

acting within the scope of his office of employment.” Arroyo v. United States, 656 F.3d 663,

668 (7th Cir. 2011) (citing 28 U.S.C. § 1346(b)(1)). See also Reynolds v. United States, 549 F.3d

1108, 1112 (7th Cir. 2008) (FTCA allows claims for “personal injuries caused by the

wrongful acts of federal employees acting within the scope of their employment under

circumstances in which a private person would be liable to the plaintiff.”); Augutis v.

United States, 732 F.3d 749, 752 (7th Cir. 2013). The FTCA is a limited waiver of the

Government’s sovereign immunity that generally gives federal courts exclusive

jurisdiction of civil actions on negligence claims against the United States. 28 U.S.C.

§ 1346(b)(1).

C. Discretionary Function Exception

The United States moves for summary judgment, arguing, in part, that the acts

complained of fall within the discretionary function exception to the FTCA. The FTCA is

a limited waiver of the Government’s sovereign immunity. But Congress crafted several

exceptions to Section 1346(b)(1)’s waiver of immunity. 28 U.S.C § 2680(a); see also Rothrock

v. United States, 62 F.3d 196, 198 (7th Cir. 1995) (no jurisdiction over cases involving

discretionary function). One such exception is for claims arising from government acts

and decisions that are based on considerations of public policy. See United States v.

Gaubert, 499 U.S. 315, 322-23 (1991). This “discretionary function exception” provides that

the Court has no jurisdiction over:

[a]ny claim based upon an act or omission of an employee of the

Government, exercising due care, in the execution of a statute or regulation,

whether or not such statute or regulation be valid, or based upon the

exercise or performance or the failure to exercise or perform a discretionary

function or duty on the part of a federal agency or an employee of the

Government, whether or not the discretion involved be abused.

28 U.S.C. § 2680(a).

“The discretionary function exception is an affirmative defense to liability under

the FTCA that the government must plead and prove.” Keller v. United States, 771 F.3d

1021, 1023 (7th Cir. 2014) (collecting cases). To fall within the discretionary function

exception, the acts giving rise to the suit must meet two requirements: (1) the acts

complained of must be discretionary in nature in that they involve an element of

judgment or choice, and (2) the judgment exercised in the act must be the type of

judgment that the discretionary function exception was designed to shield. Gaubert, 499

U.S. at 322-23; Keller, 771 F.3d at 1023.

To determine whether an act is discretionary because it involves an element of

judgment or choice, the Court must examine the nature of the act, not the status of the

actor. Gaubert, 499 U.S. at 322. A government employee does not exercise discretion when

statutes, regulations, or policies dictate his or her conduct. In that situation, the employee

has no rightful option but to conform his or her conduct to the rule, and there is no room

for judgment or choice. Gaubert, 499 U.S. at 322. Thus, when an employee “deviates from

a course of action prescribed by federal statute, regulation or policy, the employee’s acts

are not immune from suit.” Keller, 771 F.3d at 1023. Second, the government also must

show that the act was based on considerations of public policy. Palay v. United States,

349 F.3d 418, 428 (7th Cir. 2003). “With respect to the policy requirement, applicability of

the exception depends not on the intent of the government actor but on the nature of the

actions taken and on whether they are susceptible to policy analysis.” Id.

ANALYSIS

The United States argues that it is entitled to summary judgment because Jordan’s

claims are barred by the discretionary function exception to the FTCA. In the alternative,

the United States argues that there is no evidence of negligence in protecting Jordan from

and investigating the assault, nor is there evidence of negligence in the care provided to

Jordan after the assault.

A. Discretionary Function Exception

The United States first argues that Jordan’s claims are barred by the discretionary

function exception. Specifically, the government argues that decisions regarding security

and the protection of inmates falls within the discretionary function exception, thus

barring all of Jordan’s claims regarding the failure to protect him from Menter. The

Government bears the burden of offering “evidence that shows beyond reasonable

dispute that its conduct was shielded by the exception.” Keller, 771 F.3d at 1023. The

government is not always protected from liability for inmate violence; if “prison

personnel violate a mandatory regulation, the exception does not apply because there is

no room for choice and the action will be contrary to policy.” Id. at 1024 (quotations and

citations omitted).

1. Jordan’s Issues 1, 2, & 6

Jordan first takes issue with his placement in the CMU with other inmates, which

he argues were of a higher security classification for violent crimes and mostly Muslim

gang members. He further argues that Menter was mentally ill, dangerous, and should

not have been placed in the CMU with other, non-violent inmates like Jordan.

But placement in the CMU is at the discretion of BOP officials, and inmates may

be designated to the CMU based on a number of criteria and considerations including:

whether the current offense of conviction (1) includes association or communication

related to international or domestic terrorism, (2) indicates a substantial likelihood that

the inmate will act in furtherance of illegal activity by communicating with those outside

the prison, (3) indicates a likelihood that the inmate will contact a victim or (4) the inmate

misused approved communication methods while incarcerated or (5) there is evidence of

a substantial threat to the prison or public as a result of inmate communication with

persons in the community. 28 C.F.R. § 540.201(a)-(e). “Inherent in such placement …

decisions are considerations of public policy such as concerns with security, cost,

overcrowding, medical care, and the suitability of each facility to meet the needs of the

prisoner.” Lipsey v. United States, 879 F.3d 249, 255 (7th Cir. 2018).

Although Jordan argues that Section 540.201 was not promulgated when he was

assigned to the CMU, Kathy Hill attested that the criteria and process were the same prior

to the promulgation of the regulation (Doc. 137-1, p. 2). Further, Hill testified that both

Jordan and Menter were designated through this process (Id.). See also United States v.

Jordan, 591 F. Supp.2d 686, 700-04 (S.D.N.Y. Dec. 29, 2008) (Jordan was charged and

convicted on counts of threatening interstate or foreign communications to kidnap or

injure, threatening an internationally protected person, and interstate stalking, among

other things). And, as the United States points out, there are no identified directives or

regulations prohibiting the placement of differing security classifications in the same

CMU (Doc. 137-1, p. 3). Deloia also testified that different security levels could be housed

together (Doc. 140-1, pp. 32-33). Inmates could have different charges, sentences, and

classifications and all be housed together in the same CMU (Id. at p. 35). Thus, the

evidence demonstrates that officials exercised their discretion in placing both inmates in

the CMU. Jordan’s claims regarding his placement in the CMU and the placement of his

attacker into the CMU are barred by the discretionary function exception. See Sebolt v.

United States, 769 F. App’x 381, 382-83 (7th Cir. 2019) (placement of plaintiff into the

special housing unit was barred by the discretionary function exception); Gaubert, 499

U.S. at 324 (When policy, statute, regulation, or guidelines allow government “to exercise

discretion, it must be presumed that the agent’s acts are grounded in policy when

exercising that discretion.”).

2. Issues 3, 4, and 5

The United States also argues that Jordan’s claims regarding the investigation of

complaints and failure to properly protect inmates in the CMU are also barred by the

discretionary function exception. Jordan argues that staff at the prison failed to

investigate his complaints and rising tensions in the unit, to properly monitor the unit

through searches and watching video surveillance, and to properly staff the unit.

The United States meets the first element of the discretionary function exception,

pointing out that there are no statutes, directives, or regulations regarding the number of

officers required in the CMU, the monitoring of video camera footage, or the

investigation of complaints about other inmates. See McCoy v. United States, 731 F. App’x

524, 526-27 (7th Cir. 2018) (discretionary function exception applied to decision to deny

protective custody after investigation); Hill v. United States, Case No. 13-cv-307-JPG-RJD,

2017 WL 3124736, at *3 (S.D. Ill. Jul. 24, 2017) (“Housing, lighting, security, and staffing

all fall within the broad discretion of prison administrators as they all involve an element

of judgment or choice…”).

In his supplemental response, Jordan points to 18 U.S.C. § 4042 and PS 3420.11,

arguing that guards in the unit failed to properly monitor or staff the unit, and failed to

investigate “tensions” in the unit (Doc. 192, pp. 19-20, 26). But while Section 4042 provides

that the BOP “shall … provide for the safekeeping, care, and subsistence of all persons

charged with or convicted of offenses,” the statute does not “direct the manner by which

the BOP must fulfill this duty.” See 18 U.S.C. § 4042(a)(2); Calderon v. United States,

123 F.3d 947, 950 (7th Cir. 1997). Jordan also points to PS 3420.11, which provides that

employees “remain fully alert and attentive during duty hours.” But the program

statement does not provide any requirements for monitoring inmates either in person or

by video footage, nor does it stipulate any requirements regarding investigations.2 Thus,

the United States has shown that decisions regarding staffing, monitoring inmates, and

investigating complaints were discretionary acts.

But the United States also must meet the second element of the discretionary

function exception, which requires the United States to demonstrate that the judgment

exercised was based on considerations of public policy. Gaubert, 499 U.S. at 323. The

exception is designed to “prevent judicial second-guessing of legislative and

administrative decisions grounded in social, economic, and political policy through the

2 In his pro se supplemental response and affidavit, Jordan argues for the first time that officers

on duty later informed him that they were aware of the attack at the time of the incident but were

unable to respond either due to inattentiveness or apathy (See Doc. 192-1, pp. 17-19; 189-2, p. 21).

This is the first time that Jordan has raised this issue as a claim. These allegations were not raised

in his First Amended Complaint (Doc. 16, pp. 6-7, 9-11; Doc. 19, p. 2), nor did Jordan raise the

claim regarding inattentive guards as an issue in his deposition (Doc. 137-2, pp. 50-52). Jordan

testified that he had not spoken to a guard who said they were watching the monitors, nor did he

believe they were watching the monitors or saw the assault (Id. at pp. 51-52). He further testified

at his deposition that guards told him they were waiting for backup (Id. at p. 51). His response

and affidavit now state that one guard later told him he was aware “something was up” but the

guard thought that Jordan could take care of himself, and another guard informed Jordan he was

dozing (Doc. 192-1, pp. 17-18; Doc. 192, fn. at p. 19). This is contradictory to his prior testimony,

and the Court disregards these statements from Jordan’s affidavit. See James v. Hale, 959 F.3d 307,

316 (7th Cir. 2020) (“[S]ham-affidavit rule prohibits a party from submitting an affidavit that

contradicts a party’s prior deposition or other sworn testimony”).

medium of an action in tort.” Id. (citations and quotations omitted). See also Palay v. United

States, 349 F.3d 418, 432 (7th Cir. 2003) (An act of “carelessness would not be covered by

the discretionary function exception, as it involves no element of choice or judgment

grounded in public policy considerations.”). “[I]f the record does not support a

presumption that the officials exercised judgment, then the United States has not shown

the applicability of the discretionary function exception.” Holmes v. United States, Case

No. 18-cv-00487-JMS-MJD, 2021 WL 2139078, at *4 (S.D. Ind. May 26, 2021) (citing Palay,

349 F.3d at 432).

Jordan argues, both in his pro se response and his former counsel’s response, that

officials at USP-Marion failed to exercise their discretion when they failed to investigate

tensions in the unit, failed to adequately staff the unit, and failed to adequately monitor

the video feed. According to Jordan, officials simply failed to act, making the

discretionary function exception inapplicable.

a. Staffing and Monitoring

The United States has offered evidence that the decisions regarding staffing of the

unit and monitoring of the video surveillance were an exercise of USP-Marion officials’

judgment. As to staffing and physical monitoring, Kathy Hill stated that due to

manpower, officers cannot always be in every area of the prison (Doc. 137-1, p. 3). Instead,

staff make rounds of the unit. (Id. at p. 4). In Hill’s experience, assaults or fights are often

discovered after the fact because inmates wait until staff move to another part of the unit

for rounds (Id.). Similarly, Captain Davis stated in his affidavit that the prison does not

have the capability to see every part of the prison at the same time, and each officer is

assigned “post orders” for each shift, requiring them to move throughout the unit

(Doc. 137-4, p. 2). Those duties include making irregular rounds throughout the unit,

conducting searches of cells and common areas, and supervising inmate mealtimes and

group activities (Id.). Officers move frequently throughout the unit and are not able to

observe all activities (Id.). The video footage of the assault shows that no officers were in

the area when the assault occurred, and there is no indication in the investigative report

that officers were aware of the altercation (Doc. 137-1, pp. 3, 22-28).

Although Jordan makes much of the fact that Davis stated officers are expected to

perform five cell searches and five common area searches during his or her shift, there is

no written requirement that the officer perform a set number of searches (Doc. 137-4,

pp. 2-3). Deloia testified that all areas of the unit, including the closet where Menter

retrieved his weapon, were subject to random searches (Doc. 140-1, p. 47). Further,

TRUScope records of common area searches show that common areas of the prison were

being searched during the relevant time period (Doc. 137-4 at pp. 3, 5). The fact that two,

as opposed to five, searches were conducted on the date of the assault does not negate

the fact that officials utilized their discretion in determining what areas of the prison to

search that date. Further, the mop closet where Menter retrieved his weapon had

previously been searched by officers days before the attack (Id. at p. 5). The testimony

and records demonstrate that officials were using their discretion to determine what

areas of the prison to search on any given date (Id. at p. 5). The evidence further

demonstrates that officials used their discretion in determining how to patrol the unit in

order to best utilize their manpower.

Further, as to video surveillance, Captain Davis testified that video was for

supplemental observation, to rerun or view something that happened earlier (Doc. 137-

7, p. 5). Deloia similarly testified that video cameras had recording capability so that

officials could go back and review the footage if an incident was reported (Doc. 140-1,

p. 38). Video monitoring was not a requirement of the guards because video did not

capture inside the cells and could not take the place of physical rounds (Doc. 137-7, pp. 4-

6). There was never a requirement that the guards monitor the video feeds (Id. at p. 6).

Captain Davis further stated in his affidavit that the video did not have the ability to see

every assault or fight and there were not enough personnel to allow staff to monitor the

cameras at all times (Doc. 137-4, p. 2). The evidence in the record makes clear that the

decision not to monitor the video surveillance at the time of the assault was a

discretionary decision which the prison exercised based on policy considerations.

b. Investigating Complaints

The United States also maintains that its decisions regarding investigations of

issues within the unit are subject to the discretionary function exception. The United

States argues that decisions such as security fall within the discretion of the BOP, but in

order to avail itself of the discretionary function exception, the United States must

demonstrate that the officials exercised judgment. See Palay v. United States, 349 F.3d 418,

432 (7th Cir. 2003); Pronin v. United States, Case No. 2:15-cv-00183-JMS-DKL, 2017 WL

1021395, at * 4-5 (S.D. Ind. Mar. 16, 2017) (summary judgment denied when plaintiff

informed officials about the threats and they failed to investigate); Holmes, 2021 WL

2139078, at * 5 (denying summary judgment when plaintiff asked not to be placed with a

certain inmate and there was no evidence officials exercised judgment in placing plaintiff

over his objections). The United States cites to Calderon to support its position, but in that

case, the Seventh Circuit determined from the pleadings that there was “no hint … that

prison officials simply ignored the reported threats, or forgot about them.” Paley, 349 F.3d

at 432.

Here, there is evidence that Jordan and others raised complaints about tensions

between Muslim inmates and other inmates in the unit, and there is no evidence to

suggest that officials investigated those claims prior to the assault. Jordan testified that

“there was always tension between the Muslim inmates and the white inmates” in the

CMU (Doc. 137-2, p. 9). He also testified that the Muslim inmates took offense to prior

statements he made about terrorists and the fact that he had a son in the military (Id. at

pp. 34-35). And some Muslim inmates had requested that Jordan be moved out of the

unit because they believed he did not like Muslims (Id. at p. 36). Jordan also wrote

numerous copouts about various issues with Muslim inmates in the months leading up

to the assault (Doc. 140-4, p. 27; Doc. 137-1, pp. 37, 47, 49, 52, 54, 62). Jordan complained

about special privileges for Muslim inmates and issues with Muslim inmates taking food

trays (Id.).

The United States argues that Jordan testified that he did not know why Menter

attacked him, and any evidence to the contrary should be barred as contradicted by

Jordan’s sworn deposition testimony. Although Jordan testified that he did not know

why Menter attacked him that day, he also testified that he believed another Muslim

inmate put him up to it (Doc. 137-2, pp. 30-31, 33-34). Further, another inmate interviewed

during the investigation also indicated that another Muslim inmate encouraged the

attack and that the attack was “Muslims up to no good.” (Doc. 137-1, p. 26). An

anonymous note found during the investigation also indicated that the assault was over

issues with the Muslim inmates in the unit, specifically the issues with the food trays

(Doc. 141-2). Thus, there is evidence beyond Jordan’s sworn testimony that there were

issues between Jordan and Muslim inmates in the unit.

And there is simply no evidence to suggest that any official at USP-Marion

investigated those issues or made a decision to not investigate. Hill, the Intelligence

Research Specialist (“IRS”) at USP-Marion, testified as to the job of the IRS at the prison.

Her job is to collect and analyze operational intelligence and conduct investigations of

incidents (Doc. 140-2, pp. 11-12). She also reviewed copouts made by inmates (Id. at p. 14).

She testified that it was the job of the IRS to investigate complaints, such as Jordan’s

complaints about Muslim inmates in the unit (Id. at pp. 14-15). Although acting as the

current IRS, Hill testified that Henry Rivas was the IRS official before she took the

position (Id. at p. 15). She further testified that if there were documented issues between

groups of inmates, then the official would keep track of the issue and contact officers to

further monitor the situation (Id. at pp. 16-17). But there is simply no evidence that Henry

Rivas, the IRS prior to the assault, reviewed the complaints about issues in the unit,

investigated the complaints, or decided to not investigate. Rivas retired in either October

or November 2014, and there was no acting IRS just prior to, and at the time of, the assault

on Jordan in December 2014 (Id. at p. 31). Further, Mark Deloia, the investigator who took

over some of Rivas’s investigative duties after his retirement, testified that he was not

aware of any problems with Muslim inmates harassing other inmates or stealing food

trays (Doc. 140-1, pp. 53-54). And the United States has failed to offer any evidence that

any official made determinations about whether to investigate the tensions in the unit, or

whether they simply chose to ignore the issues. See Pronin, 2017 WL 1021395, at *5;

Holmes, 2021 WL 2139078, at *5. Thus, the United States has failed to meet its burden of

showing that the discretionary function exception applies to Jordan’s claim that officials

at USP-Marion failed to investigate growing tensions in the unit prior to the assault.

3. Issue 7

The United States also argues that Jordan’s claim of negligence for placing him in

the SHU while his jaw was wired is barred by the discretionary function exception.

Jordan argues that he should have been held in medical observation where he would

have had more supervision and the ability to contact staff in an emergency. The

Government points to PS 6031.04, Patient Care, which provides that institutions “may

provide limited observation bed space.” (Doc. 137-8, p. 10). The observation beds are only

for “limited outpatient services for short stay inmates” and only for 72 hours (Id. at pp. 10,

12). There are no other statutes, regulations, or program statements regarding the

placement of inmates for long-term observation, and Jordan has not identified any other

requirements that he be housed in the healthcare unit.3 (Doc. 189, p. 29).

3 Although Jordan points to PS 1600.13 and argues that the SHU was required to have a duress

alarm, Jordan fails to attach the Program Statement or direct the Court to the document in the

record (Doc. 192, p. 27). He merely points to his affidavit, which states that his cell lacked a duress

alarm (Doc. 189-1, p. 21). A review of PS 1600.13 does not reveal any requirement that Jordan be

housed in the healthcare unit after his surgery.

Further, Davis acknowledged in his affidavit that there were no locations for long-

term medical care (Doc. 137-4, pp. 3-4). Instead, inmates needing long term observation

were frequently placed in the SHU to allow for frequent contact with staff (Id.). Thus,

USP-Marion’s officials’ decision to place Jordan in the SHU after his surgery was within

the discretion of officials, and Jordan’s claim is barred by the discretionary function

exception.

Even if the decisions regarding placement and observation of Jordan after his

surgery were not subject to the discretionary function exception, there is simply no

evidence from which a jury could find that officials’ placement of Jordan in the SHU

amounted to negligence.

Under Illinois law, in order to recover for medical negligence, a plaintiff must

demonstrate: (i) the applicable standard of care; (ii) that the medical providers deviated

from that standard of care; and (iii) that the deviation from the standard of care was a

proximate cause of the injury. See Johnson v. Ingalls Memorial Hosp., 931 N.E.2d 835, 847

(5th Dist. 2010). A plaintiff must present expert testimony in order to establish these

elements, as laypersons are generally not qualified to evaluate medical professional

conduct. See Addison v. Whittenberg, 124 Ill.2d 287, 297 (1988).

Jordan maintains that he lacked the means in the SHU to contact staff in an

emergency (Doc. 192, p. 25). He also argues that he was at risk of choking with a wired

jaw but was placed in an “unstaffed” SHU behind two locked gates. But Jordan fails to

offer evidence that these actions, even if true, amounted to medical negligence. Instead,

he offers only his own opinions and fears that he had while housed in the SHU. And

Jordan fails to offer any expert testimony to state the applicable standard of care for

individuals with wired jaws, and he has not offered testimony to suggest that staff at

USP-Marion deviated from that standard of care. See Addison, 124 Ill.2d at 297. Jordan

also fails to offer an affidavit from a health professional as required by statute. See 754

ILCS §5/2-622(a)(1); Young v. United States, 942 F.3d 349, 351 (7th Cir. 2019).

There is simply no evidence from which a jury could find that staff at USP-Marion

were negligent in Jordan’s care. Although placed in the SHU, there were frequent checks

on his status by staff members. Captain Davis attested that officers in the SHU conducted

rounds and checks on the inmates twice per hour (Doc. 137-4, p. 4). Benjamin Cullers, a

registered nurse at USP-Marion at the time of Jordan’s injury, also testified that

individuals needing a higher level of monitoring were placed in the SHU because rounds

were made more often in that unit (Doc. 137-5, pp. 12-13). Jordan testified that guards

made rounds once an hour and he was seen by medical personnel two or three times a

day (Doc. 137-2, p. 47). Jordan also acknowledged that he received a pair of wire clippers

in case of an emergency (Id. at p. 46).

Although not housed in the medical unit, there is no evidence from which a jury

could find that housing Jordan in the SHU amounted to negligence. Jordan argues that

he should have been housed in a medical observation unit, but he offers no evidence that

housing him in the medical unit was the applicable standard of care for his condition or

that staff in any way breached that standard of care. Further, Jordan received monitoring

and had access to emergency equipment while in the SHU. There is simply no evidence

of negligence in Jordan’s care after his surgery. Accordingly, the United States is entitled

to summary judgment on Jordan’s claims regarding his medical care.

For the reasons stated, Jordan’s claims regarding placement in the CMU, staffing

and monitoring in the CMU, and his care in the SHU are barred by the discretionary

function exception; his claims concerning the investigation of complaints in the CMU are

not.

B. Failure to Investigate

In the alternative, the United States also argues that Jordan’s negligence claim for

failure to protect him from assault fails on the merits. The Government argues that Jordan

cannot demonstrate that officials at USP-Marion breached any duty or that any of their

actions were the proximate cause of Jordan’s injuries. The FTCA “incorporates the

substantive law of the state where the tortious act or omission occurred.” Augutis v.

United States, 732 F.3d 749, 752 (7th Cir. 2013).

In Illinois, in order to prove an “action for negligence, the plaintiff must prove that

the defendant owed a duty, that defendant breached that duty, and the defendant’s

breach was the proximate cause of injury to the plaintiff.” Am. Nat. Bank & Trust Co. of

Chicago v. Natl. Advert. Co., 149 Ill.2d 14, 25 (1992). “Among the factors which [the] court

has considered relevant to the existence of a duty are reasonable foreseeability, the

likelihood of injury, and the extent of the burden placed upon the defendant in guarding

against an injury.” Id. at 26. “Foreseeability means that which it is objectively reasonable to

expect, not merely what might conceivably occur.” Id. at 29 (citations omitted). In a failure

to protect case like the one raised by Jordan, the plaintiff “must show only that BOP staff

knew or reasonably should have known of a potential problem between the two inmates.”

Parrott v. United States, 536 F.3d 629, 637 (7th Cir. 2008) (citing Brown v. United States,

486 F.2d 284, 288–89 (8th Cir.1973) (analyzing United States’s liability under the FTCA,

in a federal inmate’s failure-to-protect suit, in terms of what “the federal government

knew or reasonably should have known”)).

Simply put, like the analysis above with respect to the discretionary function

exception as to the investigation of complaints in the CMU, there are issues of fact that

prevent summary judgment on Jordan’s failure to investigate claim. Although there is no

evidence that Jordan specifically complained about Menter, construing the facts in the

light most favorable to Jordan, there is evidence from which a jury could find that officials

were made aware of tensions between Muslim inmates and Jordan. There is evidence that

Jordan submitted copouts about issues with Muslim inmates, that Muslim inmates

complained about Jordan, and that there were tensions in the unit between Muslim

inmates and non-Muslim inmates. There is also evidence that the position in charge of

investigating such complaints, the IRS, was vacant at the time of the assault. And

Lieutenant Deloia, who took over some investigations in the IRS’s absence, was unaware

of conflicts in the unit.

Finally, there is evidence from which a jury could find that an assault was

reasonably foreseeable. Viewing the evidence in the light most favorable to Jordan, there

is evidence that the assault by Menter was a result of those uninvestigated tensions. There

also is evidence in the investigation report from which a jury could find that the assault

was the result of Jordan’s complaints about food and other tensions with Muslim inmates

in the unit (See Doc. 141-2, p. 3; 137-1, p. 26). As there are disputes of fact over whether

staff at USP-Marion were aware of and failed to investigate complaints in the unit, the

Court finds that summary judgment is not appropriate on the merits of Jordan’s claim

regarding failure to investigate.

CONCLUSION

For the reasons set forth above, Jordan’s motion to accept admissions (Doc. 190) is

GRANTED; Jordan’s cross-motion for summary judgment (Doc. 193) is STRICKEN; the

United States’s motion for summary judgment (Doc. 137) is GRANTED in part and

DENIED in part. Summary judgment is DENIED as to Jordan’s claim that officials were

negligent in failing to investigate or otherwise act regarding his complaints about Muslim

inmates prior to the assault. The United States is GRANTED summary judgment on all

other claims raised by Jordan related to his assault and care after the assault.

A status conference will be set by separate order to discuss the next steps to bring

this case to resolution.

IT IS SO ORDERED.

DATED: September 29, 2023

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

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