Drake v. United States of America

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOSEPH F. DRAKE, : Civil No. 1:20-CV-0972

:

Plaintiff, :

:

v. :

:

UNITED STATES OF AMERICA, :

:

Defendant. : Judge Jennifer P. Wilson

MEMORANDUM

Before the court is a motion to dismiss for lack of jurisdiction and failure to

state a claim filed by the United States of America (“Government”). (Doc. 26.)

The Government argues Plaintiff Joseph Drake’s Federal Tort Claims Act

(“FTCA”) claim against the Bureau of Prisons (“BOP”) premised upon 18 U.S.C. §

4042 is barred by the discretionary function exception to the FTCA. (Doc. 27.)

Additionally, the Government argues that Plaintiff has failed to state a claim of

negligent infliction of emotional distress. (Id.) The motion is fully briefed and

ripe for disposition. For the reasons that follow, the court will grant the

Government’s motion to dismiss Drake’s FTCA claim premised upon 18 U.S.C. §

4042 as well as his state negligent infliction of emotional distress claim. Because

Defendant did not address Drake’s claim that BOP officials breached their legal

duty unto him as prescribed by the BOP’s standard of employee conduct, this

claim will not be dismissed. The Government will be required to file an answer to

this sole remaining claim.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On April 11, 2018, Joseph Drake (“Drake” or “Plaintiff”) was housed in cell

126, a double cell on the B2-unit at the Canaan United States Penitentiary (“USP

Canaan”), in Waymart, Pennsylvania.1 At the time, the upper bunk in Cell 126 was

unoccupied. (Doc. 1, pp.4–5.)2 Drake states that he and inmate Fordrick Kealoha,

who lived on the B1-unit, Cell 117, were compatible to cell together “because they

are both (Homeboys) from the island[s] (Hawaii and Guam).” (Id., p. 5.) Drake

and Kealoha were the only Pacific Islanders at USP Canaan at the time. (Id., p.

11.) Between April 11-13, 2018, both inmates told prison officials that Kealoha

faced an “emergency” situation in his housing unit due to “[inmate] prison

politics” that needed immediate resolution. They told staff that Kealoha was

experiencing problems on his housing unit due to the prison’s practice of housing

inmates of different national origins together. In writing, Kealoha asked for

“emergency assistance” in transferring to Drake’s cell because he was “trying to

avoid any problems” but does not wish “to further [elaborate] on the issue/subject

1 Drake is presently housed at USP Terre Haute, in Terre Haute, Indiana. See https://www.bop.

gov/inmateloc/ (search: 00886093; last visited August 22, 2021).

2 For ease of reference, the court utilizes the page numbers from the CM/ECF header.

matter at hand, and hoping that you understand and [read] between the line[s].”

(Id., pp. 25, 27.) Drake urged BOP officials to immediately allow Kealoha “to

move in the cell with plaintiff to resolve any an[d] all [inmate] prison politics[ ]

regarding cell situations” and stressed the urgency of the situation. (Id., pp. 5, 25–

28.)

On April 16, 2018, during breakfast, Drake was involved in a physical

altercation with several inmates “of [a] different race, over prison cell problem

Plaintiff[’s] Homeboy I/M (Kealoha) [wa]s having a few days back that extended

to Plaintiff.” (Doc. 1, p. 6; Doc. 35, p. 7.) Drake “was not the person [ ] or

individual that was having prison cell issues with other races, it was Plaintiff’s

homeboy [inmate] Kealoha.” (Doc. 35, p. 3.) He claims that, although he was an

“innocent bystander” who was trying to “defuse and resolve a problem before it

escalate[d] into a[n] interracial riot” between different races and gangs, he was

assaulted on April 16, 2018. (Id., pp. 4–5.) Following his assault, he was

medically assessed and then placed in the institution’s Special Housing Unit

(“SHU”). (Doc. 1, p. 23.) Kealoha was also assaulted after lunch later that same

day. (Id., p. 6; Doc. 35, p. 7.)

Drake maintains that the BOP breached its duty to protect him and keep him

safe as charged by 18 U.S.C. § 4042 and the Federal Bureau of Prison (“BOP”)

standards for employee conduct. (Doc. 1.) He faults BOP officials for failing to

act upon his and Kealoha’s emergency request to remove Kealoha from his cell

block and designate him as Drake’s cellmate. As a result of prison official’s

negligence and inattentiveness to their duty to protect him, Drake was assaulted

due to the prison’s policy housing inmates of different races to live together. (Id.,

pp. 8–9.) He seeks $5,000,000.00 in relief for his physical pain, emotional

suffering, and the negligent infliction of emotional distress. (Id., pp. 10–11.)

On August 23, 2019, the BOP denied Drake’s Administrative Claim, No.

TRT-NER-2019-02817 based on the BOP’s failure to protect him from harm on

April 16, 2018. (Id., p. 23.) The BOP denied there was any “indication staff were

aware of issues between [Drake] and the other inmates prior to [the] incident” and

claimed there was “no evidence [Drake] experienced a compensable loss as a result

of negligence on the party of a Bureau of Prisons employee.” (Id.) Drake filed a

timely FTCA complaint. (Doc. 1.)

Government filed a motion to dismiss the complaint on December 23, 2020.

(Docs. 26, 27.) Drake filed a timely opposition brief on March 25, 2021. (Doc.

35.) Defendant filed a reply brief on March 25, 2021. (Doc. 36.) The motion is

ripe for disposition.

JURISDICTION

A federal prisoner has the right to bring a cause of action in district court

under the FTCA for a breach of the duty prescribed by 18 U.S.C. § 4042. United

States v. Muniz, 374 U.S. 150, 154–55 (1963); 28 U.S.C. § 1346(b)(1).

STANDARDS OF REVIEW

A. Motion to Dismiss under 12(b)(1)

When a defendant seeks dismissal of the complaint pursuant to Federal Rule

of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, the court must

decide “whether the allegations on the face of the complaint, taken as true, allege

facts sufficient to invoke the jurisdiction of the district court.” Taliaferro v. Darby

Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006) (quoting Licata v. U.S. Postal

Serv., 33 F.3d 259, 260 (3d Cir. 1994)). Rule 12(b)(1) challenges may be “facial”

or “factual.” See Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891

(3d Cir. 1977). A facial attack challenges whether jurisdiction has been properly

pled and requires the court to “only consider the allegations of the complaint and

documents referenced therein and attached thereto, in the light most favorable to

the plaintiff.” Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000)

(citing Mortensen, 549 F.2d at 891.) Conversely, when a motion to dismiss attacks

the existence of subject matter jurisdiction in fact, “the court is free to weigh the

evidence and satisfy itself as to the existence of its power to hear the case, [and] no

presumptive truthfulness attaches to [the] plaintiff’s allegations …” Davis v. Wells

Fargo, 824 F.3d 333, 346 (3d Cir. 2016) (citing Mortensen, 549 F.2d at 891)

(internal citation and quotation marks omitted).

Where, as in this case, the Government asserts that Plaintiff’s claim falls

within the discretionary function exception to the FTCA, the court treats the

motion as a factual attack to the court’s subject matter jurisdiction. See S.R.P. ex

rel Abunabba v. United States, 676 F.3d 329, 332 (3d Cir. 2012). As such, the

court may weigh any evidence in the record to satisfy itself whether it has subject

matter jurisdiction and there is no presumed presumptive truthfulness of Plaintiff’s

allegations. Mortensen, 549 F.2d at 891. Additionally, “[a]lthough a plaintiff

bears the burden of establishing that his claims fall within the scope of the FTCA’s

waiver of the federal government’s sovereign immunity … the Government has the

burden of proving the applicability of the discretionary function exception.” See

S.R.P. ex rel. Abunabba, 676 F.3d at 333.

B. Motion to Dismiss under 12(b)(6)

In order “[t]o survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the

plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. (quoting

Twombly, 550 U.S. at 556). “Conclusory allegations of liability are insufficient” to

survive a motion to dismiss. Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir.

2019) (quoting Iqbal, 556 U.S. at 678–79). To determine whether a complaint

survives a motion to dismiss, a court identifies “the elements a plaintiff must plead

to state a claim for relief,” disregards the allegations “that are no more than

conclusions and thus not entitled to the assumption of truth,” and determines

whether the remaining factual allegations “plausibly give rise to an entitlement to

relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).

A complaint filed by a self-represented plaintiff must be liberally construed

and “held ‘to less stringent standards than formal pleadings drafted by lawyers.’”

Fantone v. Latini, 780 F.3d 184, 193 (3d Cir. 2015) (citing Haines v. Kerner, 404

U.S. 519, 520–21 (1972)); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007).

Yet even a self–represented plaintiff “must allege sufficient facts in their

complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239,

245 (3d Cir. 2013) (citation omitted). Self-represented plaintiffs are to be granted

leave to file a curative amended complaint even when a plaintiff does not seek

leave to amend, unless such an amendment would be inequitable or futile. See

Estate of Lagano v. Bergen Cnty. Prosecutor’s Office, 769 F.3d 850, 861 (3d Cir.

2014). A complaint that sets forth facts which affirmatively demonstrate that the

plaintiff has no right to recover is properly dismissed without leave to amend.

Grayson v. Mayview State Hosp., 293 F.3d 103, 106 (3d Cir. 2002).

DISCUSSION

Drake’s claim that the Government breached its duty of care to keep him

safe is threefold: (1) BOP prison officials were negligent in failing to provide for

his safekeeping under 18 U.S.C. § 4042 when not heeding his emergency request

to have Kealoha assigned as his cellmate; (2) prison officials violated mandatory

standards of care set forth in the BOP Program Statement 3420.11, Standards of

Employee Conduct based on their inattentiveness and failure to respond to the

emergency situation presented by Kealoha and Drake foretelling of a conflict

between inmates of different races which led to his assault; and (3) a state claim of

negligent infliction of emotional distress. See Doc. 1.

The Government contends that the court lacks subject matter jurisdiction

over Drake’s FTCA claim based on 18 U.S.C. § 4042, as the discretionary function

exception to sovereign immunity applies to decisions concerning the safe housing

of inmates and because Drake fails to state a claim of negligent infliction of

emotional distress. (Doc. 27.) In his opposition brief, Drake agrees that the

discretionary function exception applies to his FTCA claim concerning the BOP’s

failure to “relocate his homeboy to another cell upon request the (D.F.E.) shields

the (U.S.) and its employees (U.S. DOJ/FBOP/USP Tucson) from liability under

the FTCA.” (Id., p. 12; see also pp. 11–14.) However, Drake notes that the

discretionary function exception does not apply to his claim that prison officials

failed to follow their mandatory duty of care to protect him from harm as

established in the Department of Justice’s Standards of Employee Conduct,

Program Statement 3420.11. 3 (Id., pp. 16–17.) Finally, Drake counters he has

stated a valid negligent infliction of emotional distress claim as he observed a

tortious injury to a close relative, himself and “his Homeboy I/M (Kealoha).” (Id.,

p. 18.) Defendant’s reply brief highlights Drake’s failure to provide any legal

authority that the discretionary function exception is inapplicable to his 18 U.S.C.

§ 4042 claim or that he has properly alleged a claim of intentional infliction of

emotional distress as he admits only Kealoha was experiencing problems with

inmates of another race prior to April 16, 2018. (Doc. 36.)

A. Drake’s Assault Claim Based Upon 18 U.S.C. § 4042

and Prison Official’s Failure to Transfer Kealoha to

Drake’s Cell is Barred by the Discretionary Function

Exception to the FTCA

As a sovereign, the United States of America is immune from suit unless it

consents to be sued. Merando v. United States, 517 F.3d 160, 164 (3d Cir. 2008).

3 The Government’s motion to dismiss does not address Drake’s FTCA claim based on the BOP

standards of employee conduct. See Doc. 1, ¶¶ 31–32; see also Doc. 27. As such, this claim will

not be addressed and will survive.

The FTCA provides a limited waiver of sovereign immunity whereby the United

States government submits itself to be sued, in limited circumstances, for the

negligent acts of its employees, in which private individuals under similar

circumstances would be liable under state law. See 28 U.S.C. § 1346(b) and

§ 2671, et seq.; see also Baer v. United States, 722 F.3d 168, 172 (3d Cir. 2013)

(“The FTCA waives the federal government’s sovereign immunity with respect to

tort claims for money damages.”). The United States’ liability under the FTCA,

however, is subject to several exceptions, one being the “discretionary function

exception.” See 28 U.S.C. § 2680(a). The FTCA’s discretionary function

exception withdraws the United States’ waiver of sovereign immunity for claims

“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 employee of the

Government, whether or not the discretion involved be abused.” 28 U.S.C. §

2680(a).

The United States Supreme Court has developed a two-part test for

determining whether agency conduct qualifies as a discretionary function or duty.

Berkovitz v. United States, 486 U.S. 531, 536 (1988). First, the court must

consider the nature of the employee’s conduct at issue and determine whether it

involves “an element of judgment or choice.” United States v. Gaubert, 499 U.S.

315, 322 (1991) (citing Berkovitz, 486 U.S. at 536); see also Merando, 517 F.3d at

164–65. The conduct is not discretionary if the employee’s actions are “controlled

by mandatory statutes or regulations.” Gaubert, 499 U.S. at 329 (internal citation

omitted). Where an employee “violates [a] mandatory regulation, there will be no

shelter from liability because there is no room for choice and the action will be

contrary to policy.” Id., 499 U.S. at 325. Conversely, if a statute, regulation, or

policy leaves it to the federal employee or agency to determine when and how to

act, the employee or agency is not bound to act in a particular manner and the

exercise of its authority is discretionary. Id. 499 U.S. at 329. If the first prong of

the test is satisfied, the court must then consider “whether the judgment exercised

‘is of the kind that the discretionary function exception was designed to shield.’”

Baer, 772 F.3d at 172 (quoting Berkovitz, 486 U.S. at 536). In making this

determination, a court must keep in mind “the purpose of the exception is to

prevent judicial ‘second-guessing’ of legislative and administrative decisions

grounded in social, economic, and political policy through the medium of an action

in tort ... when properly construed, the exception protects only governmental

actions and decisions based on considerations of public policy.” Gaubert, 499 U.S.

at 323 (internal quotation marks and citation omitted).

A “crucial” first step for the court is to “determine exactly what conduct is at

issue.” Centenaro v. United States, 211 F.3d 749, 753 (3d Cir. 2000) (internal

quotation omitted). After the conduct is identified, the court must determine

whether the conduct is “susceptible to policy analysis.” Gaubert, 499 U.S. at 325.

Drake claims 18 U.S.C. § 4042 requires the Government to keep him safe from

assault. He relied upon this statute when notifying prison officials of the

emergency facing Kealoha, the immediate need to remove him from his housing

unit, and assign Kealoha – the only other Pacific Islander at the institution – as his

cellmate. He claims prison official’s negligent acts and omissions of their duties to

address their housing request caused him, an “innocent bystander,” to be assaulted

when the same issues Kealoha’s experienced reached him. (Doc. 35.)

The Government alleges that any alleged improper decision or action by

BOP prison employees was a discretionary act; therefore, subject to dismissal

based on the application of the discretionary function exception to the FTCA.

(Doc. 27.) The Government agrees that the BOP is required to provide for the

safekeeping, care, and subsistence of all federal prisoners pursuant to 18 U.S.C. §

4042, but Section 4042 does not indicate the way this duty is to be fulfilled and

BOP officials generally have broad discretion in fulfilling this statutory obligation.

See Thrower v. United States, 528 F. App’x 108, 111 (3d Cir. 2013). The

Government also acknowledges the BOP’s obligation to “provide suitable quarters

and provide for the safekeeping, care, and subsistence” and “provide for the

protection, instruction, and discipline” of those in its charge, including Drake. See

18 U.S.C. § 4042(a)(2), (3). Defendants correctly note that all such decisions

involve an element of discretion. See Donaldson v. United States, 281 F. App’x

75, 77 (3d Cir. 2008) (While 18 U.S.C. § 4042(a)(2) and (3) requires BOP to

protect and keep safe inmates in its care, “this statute leaves the implementation of

these duties to the discretion of BOP officials”); see also Rinaldi v. United States,

460 F. App’x 80, 81 (3d Cir. 2012) (“[T]here is no federal statute, regulation or

policy which requires the BOP to take a particular course of action to ensure an

inmate’s safety from attacks by other inmates.”).

In his opposition brief, Drake “respectfully agrees” to the extent his FTCA

claim is premised on prison official’s failure to relocate Kealoha to his cell. He

agrees “housing and cellmate assignments” are discretionary and “the kind that the

[discretionary function exception] was designed to shield.” (Doc. 35, ¶¶ 30–36.)

The court agrees with the position of both parties as to this claim. While the BOP

has a general duty to provide Drake with suitable housing pursuant to 18 U.S.C. §

4042(a)(2), BOP officials have discretion in how they carry out this directive. The

Third Circuit Court of Appeals has held that “housing and cellmate assignments

are ‘of the kind that the discretionary function exception was designed to shield.’”

Rinaldi, 904 F.3d at 274 (quoting Mitchell v. United States, 225 F.3d 361, 363 (3d

Cir. 2000). Thus, the BOP’s failure to promptly assign Kealoha and Drake as

cellmates was discretionary. Accordingly, the court finds that both prongs of the

discretionary function test are satisfied, and this claim should be dismissed for lack

of subject matter jurisdiction.

B. Drake Fails to State a Prima Facie Claim of Negligent

Infliction of Emotional Distress

Negligent infliction of emotion distress claims address “mental or emotional

harm (such as fright or anxiety) that is caused by the negligence of another[.]”

Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 544 (1994). To set forth a

claim for negligent infliction of emotional distress in Pennsylvania, a plaintiff must

also establish at least one of the following factual scenarios:

(1) impact liability where emotional distress is accompanied by

physical injury or impact; (2) zone of danger liability where

emotional distress is inflicted on a plaintiff who was in close

proximity of physical impact and thereby reasonably

experienced a fear of physical injury; (3) bystander liability for

emotional distress experienced by a plaintiff who personally

witnessed an impact upon a close relative; and (4) special

relationship liability premised on the breach of a preexisting

contractual or fiduciary relationship that foreseeably resulted in

emotional harm so extreme that a reasonable person should not

be expected to endure the resulting distress.

Humphries v. Pennsylvania State Univ., 492 F. Supp.3d 393, 409 (M.D. Pa. 2020)

(citing Doe v. Phila. Cmty. Health Alts. AIDS Task Force, 745 A.3d 25, 27–28 (Pa.

Super. 2000)); see also Goodson v. Kardashian, 413 F. App’x 417, 418 (3d Cir.

2011) (describing the elements of a claim for negligent infliction of emotional

distress in Pennsylvania); see also Taylor v. Albert Einstein Med. Ctr., 754 A.2d

650, 652 (Pa. 2000) (citing § 46 of the Restatement (Second) of Torts “as setting

forth the minimum elements necessary to sustain such a cause of action.”); but see

LaLoup v. United States, 92 F. Supp. 3d 340, 348 (E.D. Pa. 2015) (noting that the

Pennsylvania Supreme Court has not definitively recognized a negligent infliction

of emotional distress claim based on a contractual or fiduciary duty).

Where a plaintiff alleges negligent infliction of emotional distress due to

observing a close relative’s injury due to the negligent acts of another, he must

demonstrate that he was: (1) located near the accident/incident; (2) that the “shock

resulted from a direct emotional impact upon plaintiff from the sensory and

contemporaneous observance of the accident”; and (3) that the plaintiff and the

victim are closely related. Sinn v. Burd, 404 A.2d 672, 684–85 (1979). To assert a

zone of danger theory of liability, a plaintiff must plead a direct emotional impact

based on their sensory and contemporaneous observance of defendant’s negligent

act on the closely related victim. Id., 404 A.2d at 685–86; Mazzagatti v.

Everingham, 516 A.2d 672, 673 (1986).

Contrary to Drake’s assertions, his negligent infliction of emotional distress

claim cannot be founded on either a bystander or zone of danger theory of liability

due to his friend Kealoha’s assault. This is primarily due Drake’s failure to plead

any form of qualifying close relationship with Kealoha as required by Sinn. At

best, Drake pleads that he and Kealoha are friends or “homeboys” because of their

Pacific Island origins. See Doc. 1, p. 69 (Drake refers to Kealoha as “a fellow

[inmate] (Islander Homeboy)”). Without questioning the strength of the bond

between these men, their non-familial relationship is insufficient to demonstrate

the requisite “closely related” relationship for either theory of liability. See

Caserta v. GEICO General Ins. Co., 507 F. App’x 104, 107 (3d Cir. 2012)

(boyfriend and girlfriend relationship insufficient to satisfy “closely related”

requirement of bystander claim.); see also Blanyar v. Pagnotti Enterprises, Inc.,

679 A.2d 790 (1996) (recovery in emotional distress cases limited to members of

injured person’s “immediate family” and does not extend to minor plaintiff who

witnessed drowning death of his cousin, a close friend).

Alternatively, even if Drake and Keahola were deemed to be “closely

related,” Drake’s bystander and zone of danger theories of liability would fail

because he does not allege that he was present or otherwise contemporaneously

observed Kealoha being assaulted. See Doc. 1, ¶ 23 (“[P]etitioner and [inmate]

Kealoha [got] into physical altercation[s] --- same day different time event --- with

other [inmates]”.) Drake was assaulted in the early morning of April 16, 2018. He

was then placed in the institution’s SHU. (Doc. 1, p. 23.) Kealoha was assaulted

“the same day after lunch.” (Doc. 35, p. 7.) By his own admission, Drake was in

the SHU when Kealoha was assaulted. As such, Drake cannot base his negligent

infliction of emotional distress claim on Kealoha’s assault.

To state a cause of action for negligent infliction of emotional distress, a

plaintiff must establish the traditional elements of a negligence claim, “i.e., that the

defendant owed a duty of care to the plaintiff, the defendant breached that duty, the

breach resulted in injury to the plaintiff, and the plaintiff suffered an actual loss or

damage.” Toney v. Chester Cnty. Hosp., 961 A.2d 192, 198 (Pa. Super. 2008).

Plaintiff must also aver he suffered an immediate and substantial physical harm

because of defendant’s negligence. Doe, 745 A.2d at 28. To satisfy this

requirement, it is sufficient that a plaintiff suffer from “physical manifestations of

emotional suffering, i.e. depression, nightmares, stress, and anxiety.” Love v.

Cramer, 606 A.2D 1175, 1179 (Pa. Super. Ct. 1992). Finally, the plaintiff must

also demonstrate that he was a “foreseeable plaintiff and that [he] suffered a

physical injury as a result of defendant’s negligence.” Toney, 961 A.2d at 199

(citing Armstrong v. Paoli Memorial Hosp., 633 A.2d 605, 615 (Pa. Super. 1993)).

Here, Drake’s claim fails because the complaint merely recites the bare

elements of a claim for negligent infliction of emotional distress following his

assault by another prisoner. Drake’s complaint, and its exhibits, do not

demonstrate that the information both he and Kealoha provided prison officials

would suggest that Drake was at risk of harm. In his opposition brief, Drake

repeatedly describes himself as not being caught up in the same fray Kealoha faced

on his housing unit. Drake describes his involvement in Kealoha’s problem as “an

innocent bystander” who “was not the person/or individual that was having

(prison) cell issues with other races, it was plaintiff’s homeboy [inmate]

(Kealoha).” Doc. 35, pp. 3, 4, 7. Based on Drake’s own statements, as well as his

admission, he has not properly plead a claim of negligent infliction of emotional

distress as he fails to allege prison officials knew of a risk to his safety and ignored

it. Accordingly, the court will grant the Government’s motion to dismiss this

claim.

CONCLUSION

Drake’s FTCA claim that BOP officials breached their statutory duty

pursuant to 18 U.S.C. § 4042 to provide him suitable housing and his safekeeping

is barred by the discretionary function exception. Accordingly, the court lacks

jurisdiction over this claim. Plaintiff’s state law claim of negligent infliction of

emotional distress can only be based on his personal assault claim and not inmate

Kealoha who is not “closely related” to him. Due to Drake’s failure to plead any

facts to suggest that prison officials should have foreseen that he too was at risk

due to the problems faced by Kealoha from inmates of a different race, his state

claim for negligent infliction of emotional distress will be denied. Further, because

of Drake’s position that he was an “innocent bystander” and was not experiencing

prison cell issues with inmates of other races, Doc. 35, pp. 3–4, 7, he will not be

granted leave to amend this claim. Drake’s claim that BOP officials breached their

legal duty unto him as prescribed by the BOP’s standard of employee conduct is

the sole claim that remains. An appropriate order will follow.

s/ Jennifer P. Wilson

JENNIFER P. WILSON

United States District Court Judge

Dated: September 30, 2021 Middle District of Pennsylvania