Boles v. The United States of Amercia

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

BETTY BOLES,

as Administratrix of the

Estate of Khaalid Sharif Frederick,

Plaintiff,

v. CIVIL ACTION NO. 1:20CV41

(Judge Keeley)

THE UNITED STATES OF AMERICA,

Defendant.

MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT’S

MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]

AND DISMISSING CASE WITH PREJUDICE

On March 9, 2020, the Plaintiff, Betty Boles (“Boles”), as the

administratrix of the Estate of Khaalid Sharif Frederick

(“Frederick”), filed this wrongful death action against the United

States of America (“United States”) under the Federal Tort Claims

Act (“FTCA”), 28 U.S.C. §§ 1346, 2671, et seq. (Dkt. No. 1). At the

time of his death, Frederick was a prisoner in the custody of the

Federal Bureau of Prisons (“BOP”) at USP Hazelton. Boles, who is

Frederick’s sister, alleges that the BOP breached its duty to

reasonably ensure Frederick’s safety, and thereby caused his death.

Pending are several motions filed by the Government to dismiss

Boles’s claim for lack of subject matter jurisdiction under Federal

Rule of Civil Procedure 12(b)(1) (Dkt. Nos. 10, 29, 43). The

Government claims that it is immune from Bole’s suit because its

allegations fall within the discretionary function exception to the

FTCA.

BOLES V. USA 1:20CV41

MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT’S

MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]

AND DISMISSING CASE WITH PREJUDICE

Following four (4) months of discovery and several hearings on

this issue, the Court concludes that Boles’s claim is barred by the

discretionary function exception and that it lacks jurisdiction to

address her claim.

I. BACKGROUND

A. Factual History

On June 19, 2017, Frederick sustained puncture wounds to his

stomach and back during an altercation with another inmate in a

general population housing unit at USP Hazelton1 (Dkt. No. 1 at 5).

The BOP transported Frederick to Ruby Memorial Hospital (“Ruby”)

for treatment. At Ruby, the doctors ordered x-rays and CT scans of

his chest and pelvis. Id. These diagnostic tests revealed that

Frederick had two “superficial” puncture wounds involving “only

subcutaneous fat of the body wall.” Frederick remained overnight at

Ruby for observation and was discharged on June 20, 2017. Id. at 6.

On June 21, 2017, at approximately 9:30 A.M., while in his

cell in the Special Housing Unit (“SHU”) at USP Hazelton, Frederick

told a guard that he needed medical attention. Id. After the guard

placed him in hand restraints and transferred him to a holding

1 The facts are taken from the Complaint and are construed in the

light most favorable to the plaintiffs. See Kerns v. United States,

585 F.3d 187, 193 (4th Cir. 2009)

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AND DISMISSING CASE WITH PREJUDICE

cell, Frederick became unresponsive. Id. BOP staff moved Frederick

to the Health Services examination room, where he stopped

breathing. Id. At approximately 9:40 A.M., BOP staff initiated CPR,

transported Frederick to the Health Services trauma room, and

intubated him. Id. Paramedics arrived at 10:18 A.M., and pronounced

Frederick dead at 10:22 A.M. Id.

According to Boles, BOP records, which indicate Frederick

suffered from “cardiac arrest,” conflict with an autopsy performed

on June 22, 2017, that concluded his death was a homicide.2 The

autopsy report revealed that Frederick had sustained seven stab

wounds to his chest and back and died from a deep abdominal stab

wound that perforated his diaphragm and left lung.3 Id. at 7.

Based on this report, Boles contends that, on either June 20

or June 21, 2017, Frederick was attacked a second time and

consequently sustained the stab wound that caused his death. Id.

She further alleges that the second attacker was either the same

inmate who attacked Frederick on June 19, 2017, or an associate of

2 The BOP incident report, dated June 21, 2017, also lists

Frederick’s cause of death as homicide (Dkt. No. 11-1 at 20).

3 The autopsy also disclosed Frederick’s other injuries,

including contusions, lacerations, hemorrhages, and abrasions on

his face, scalp, arms, fingers, wrist, knee, and shin (Dkt. No. 1

at 7).

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MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]

AND DISMISSING CASE WITH PREJUDICE

that inmate. Id. at 8.

Finally, Boles avers that, although she requested documents

pertaining to Frederick’s death from the BOP on May 9, 2018, it did

not respond until October 24, 2019. Id. And that response did not

reference a second altercation, contain any video footage of the

morning of June 21, 2017, or provide a statement from his SHU

cellmate. Id. It also did not indicate that the BOP had conducted

an investigation into Frederick’s death. Id. The BOP letter did

state, however, that “there is no evidence of BOP staff negligence,

and if there was negligence, it was not on behalf of the BOP.”4 Id.

Based on this history, Boles brings a single negligence claim

on behalf of Frederick’s estate. She contends the BOP breached its

duty to ensure Frederick’s reasonable safety by (1) failing to

protect him from the June 19, 2017 altercation, (2) failing to

adequately staff the facility and failing to train and supervise

its employees, (3) failing to separate him his June 19, 2017

attacker,5 or that inmates’s associates, upon his return from Ruby,

4 The Government maintains that there is no evidence a second attack

occurred (Dkt. No. 11 at 4). Instead, it contends that Ruby failed

to properly diagnose Frederick’s injuries on June 19, 2017.

5 The Government acknowledged that Frederick was not housed

separately from the inmate who stabbed him on June 19, 2017, until

after he returned from Ruby (Dkt. No. 11 at 3). Boles

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AND DISMISSING CASE WITH PREJUDICE

(4) failing to supervise and monitor him in the SHU, and (5)

failing to transfer him out of the SHU. Id. at 9-10.

B. Procedural History

i. Government’s Motion to Dismiss

On July 14 2020, the Government moved to dismiss Boles’s claim

for lack of jurisdiction pursuant to the discretionary function

exception to the FTCA (Dkt. No. 10). It contended that no statute,

regulation, or policy dictates how BOP employees must control

contraband weapons, intervene in inmate fights, investigate the

risk of inmate altercations, or decide where to confine inmates.

Id. at 5. Accordingly, the discretionary function exception to the

FTCA deprives the Court of jurisdiction over this case. Id. at 12.

The Government next asserted that its duty to protect its

inmates does not guarantee a risk-free environment. Id. at 9. And,

it is only liable for negligence when it knew, or reasonably should

have known, about a potential conflict between inmates, which it

did not in Frederick’s case. Id.

Boles responded that the Court should not dismiss her case

without first authorizing jurisdictional discovery to resolve

misinterpreted this statement to mean that these inmates were not

separated “once he returned to [USP] Hazelton” (Dkt. No. 15 at 7)

(adding her own language).

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AND DISMISSING CASE WITH PREJUDICE

factual disputes (Dkt. No. 15 at 7). She then contended that the

discretionary function exception is inapplicable to her case

because the BOP knew or should have known about the conflict

between Frederick and the inmate who stabbed him on June 20 or 21,

2017, and because BOP staff violated nondiscretionary policies

(Dkt. No. 15 at 10).

After hearing argument on July 30, 2020, the Court held the

Government’s motion in abeyance in order to resolve two factual

disputes essential to its jurisdictional inquiry (Dkt. No. 18, 19).

First, the parties disputed whether, after Frederick returned to

USP Hazelton, BOP staff failed to separate him from the inmate, or

a known associate of the inmate, who attacked him on June 19, 2017

(Dkt. No. 15 at 4). Although adamant that Frederick was housed

separately from his attacker in the SHU, the Government provided no

information as to the identity of his SHU cellmate or whether that

cellmate was affiliated with Frederick’s previous attacker (Dkt.

Nos. 11 at 3). Had the BOP housed Frederick with the inmate who

stabbed him on June 19, 2017, or a known associate of that inmate,

such arguably was the result of carelessness. See Rich v. United

States, 811 F.3d 140, 147 (4th Cir. 2015) (explaining, in dicta,

that the discretionary function exception may not apply to conduct

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AND DISMISSING CASE WITH PREJUDICE

marked by carelessness).

Second, the parties disputed whether Frederick had been

attacked on either June 20 or 21, 2017. According to Boles, the

inconsistent injuries documented in the medical records from Ruby

and the autopsy report supported her theory that Frederick was

attacked a second time while housed in the SHU. (Dkt. Nos. 15 at 3,

14 at 73). In her view, this evidence refuted the Government’s

arguments that no second attack occurred, and that Ruby failed to

properly diagnose Frederick’s injuries in the first instance (Dkt.

No. 11 at 4).

Because of these factual disputes, the Court ordered limited

jurisdictional discovery (Dkt. No. 19). The Government agreed to

produce the full investigation report regarding Frederick’s death,

including all photos and information about Frederick’s SHU

cellmate, as well as any video evidence. The parties exchanged

initial discovery and the Government eventually disclosed documents

relevant to its investigation into Frederick’s death. Using this

discovery, it then supplemented its motion to dismiss on September

18, 2020 (Dkt. No. 29).

ii. Government’s Supplemental Motion to Dismiss

In its supplemental motion, the Government argued that, prior

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MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]

AND DISMISSING CASE WITH PREJUDICE

to placing any inmate in the SHU, BOP staff review relevant records

to determine the reason why an inmates is being housed in the SHU

and whether such placement poses any security threat. Id. at 2.

Regarding Frederick, it asserted that, on June 20, 2017, his

cellmate had been assigned to the SHU based on disciplinary

infractions unrelated to the June 19, 2017 altercation involving

Frederick.6 Id. at 2. And prior to reassigning that inmate, BOP

staff had reviewed his relevant records and determined his

placement posed no security threat. There was no separatee note in

his records, no identified gang affiliations, and no indication

that he was associated with the inmate who had stabbed Frederick.

Id.

In her response to the Government’s contention that the

discretionary function exception barred her claim, Boles maintained

that the BOP failed to separate Frederick from his attacker or his

associates (Dkt. No. 30 at 3). She next alleged, for the first

time, that the BOP failed to properly monitor Frederick in the SHU

and failed to adequately train its staff to search for contraband

in the SHU. Id. Boles then requested additional discovery as to

whether any BOP policy relevant to these two allegations existed,

6 Specifically, the inmate had been moved to the SHU for engaging

in a sexual act and refusing to obey an order (Dkt. No. 29 at 2).

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MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]

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and if so, to determine whether such policies mandated a course of

action. Id. at 4.

On October 2, 2020, the Court again heard argument on the

Government’s motions and extended the time for jurisdictional

discovery by an additional thirty (30) days (Dkt. Nos. 34, 36).

After the Government produced supplemental discovery, Boles did not

amend her complaint again (Dkt. No. 41, 42).

iii. Government’s Second Supplemental Motion to Dismiss

On November 9, 2020, the Government filed its Second

Supplement to Motion to Dismiss, to which Boles did not respond

(Dkt. No. 43). According to the Government, before inmates enter

the SHU at USP Hazelton, they are pat searched by BOP staff. Id. at

3. And once in the SHU, BOP staff search inmates with a hand-held

metal detector and a scanning machine. Id. Inmates then undergo

documented visual searches, which include searching all body

surfaces and cavities. Id. After being searched, inmates are often

assigned a cellmate. Id. at 4. BOP staff observe all inmates in the

SHU “at least once in the first 30-minute period of an hour

followed by another round in the second 30-minute period of the

same hour” and record their rounds. Id. As time permits during

their shifts, BOP staff also conduct at least five (5) common area

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MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]

AND DISMISSING CASE WITH PREJUDICE

or inmate cell searches and document any contraband found. Id.

The Government has averred that BOP staff visually searched

Frederick and his cellmate upon their entry into the SHU and

discovered no contraband or weapons. Id. at 4. Also, for the two

days that Frederick was housed in the SHU, his cell was observed at

least twice per hour. Id. BOP staff, however, were not required to

search Frederick’s cell during this time, and it was not searched.

Id. However, BOP staff did routinely search common areas and inmate

cells during this time frame, but found no weapons. Id.

The Government also provided a timeline of events on June 21,

2017. At 7:40 A.M., BOP staff held a Unit Disciplinary Committee

meeting in Frederick’s cell. BOP staff recalled that Frederick

displayed no signs of distress and there was no apparent hostility

between the cellmates. At 9:24 A.M., a BOP guard observed

Frederick’s cell. At 9:25 A.M., the BOP guard returned to the cell

after hearing an inmate yell “[C]ome back to 150, I need a nurse,”

and observed Frederick sitting on the bottom bunk and his cellmate

lying on the top bunk. Frederick appeared lethargic and requested

medical attention, while grabbing his already bandaged abdomen. At

9:26 A.M., BOP staff placed Frederick and his cellmate in hand

restraints. BOP staff then administered the medical treatment

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MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]

AND DISMISSING CASE WITH PREJUDICE

described in Boles’s complaint. At 10:22 A.M., Frederick was

pronounced dead. At 10:24 A.M., an evidence recovery team was

activated, and from 11:35 A.M. to 1:05 P.M. the recovery team

searched and documented all evidence found in the cell. No weapons

were recovered from the cell or the person of Frederick’s cellmate.

Based on this discovery and the parties’ extensive briefings,

the issue of whether the discretionary function exception deprives

the Court of jurisdiction over Boles’s claim is ripe for review.

II. STANDARD OF REVIEW

A party may assert the defense of lack of subject matter

jurisdiction by motion. Fed. R. Civ. Pro. 12(b)(1). While the

burden of proving jurisdiction is on the plaintiff, if the Court

determines “at any time that it lacks subject matter jurisdiction,

the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3); Adams

v. Bain, 997 F.2d 1213, 1219 (4th Cir. 1982). “When a defendant

asserts that the complaint fails to allege sufficient facts to

support subject matter jurisdiction, the trial court must apply a

standard patterned on Rule 12(b)(6) and assume the truthfulness of

the facts alleged.” Kerns, 585 F.3d at 193. Alternatively, where,

as here, the defendant challenges the veracity of the facts

underpinning subject matter jurisdiction, the trial court may go

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beyond the complaint, conduct evidentiary proceedings, and resolve

the disputed jurisdictional facts.” Id. And when the jurisdictional

facts are inextricably intertwined with those central to the

merits, the court should resolve the relevant factual disputes only

after appropriate discovery, unless the jurisdictional allegations

are clearly immaterial or wholly unsubstantial and frivolous. Id.

(citing Bell v. Hood, 327 U.S. at 682, 682 (1946)).

III. DISCUSSION

It is well established that the United States, as sovereign,

is immune from suit unless it consents to be sued. The terms of its

consent define the Court’s jurisdiction to entertain suit against

the Government. Gould v. U.S. Dep't of Health & Human Servs., 905

F.2d 738, 741 (4th Cir. 1990) (citing United States v. Sherwood,

312 U.S. 584, 586 (1941)). The FTCA waives the sovereign immunity

of the United States and allows suits against it for personal

injuries caused by government employees acting within the scope of

their employment. See 28 U.S.C. § 1346(b), § 2671 et seq.

Therefore, in the present case, only if the United States has

waived sovereign immunity under the FTCA does this Court have

jurisdiction to address Boles’s claim.

A. Administrative Exhaustion

Before filing suit under the FTCA, Boles was required to

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exhaust her administrative remedies. 28 U.S.C. § 2675(a). Under the

FTCA, a tort claim against the United States must be presented to

the appropriate agency within two years of its accrual by

submitting a Form 95 and a sum certain claim for money damages for

the injury or death alleged to have occurred.7 28 C.F.R. § 14.2. If

the agency denies the claim, the claimant may file suit within six

(6) months. 28 U.S.C. § 2401(b).

Here, Boles has summarily contended that she exhausted her

administrative remedies (Dkt. No. 1 at 1). The BOP denied her claim

on September 10, 2019, giving her until March 10, 2020 to assert

her FTCA claim in court. Id. at 1-2. Boles filed her complaint

within six months of the alleged denial date, but did not include

the date on which she had presented her claim to the BOP or a copy

of her Form 95.8 Boles’s counsel, however, has represented that

7 An FTCA claim accrues when a plaintiff is aware of the existence

of the injury and its cause such that she is “sufficiently armed”

with “critical facts” to investigate the claim. Gould, 905 F.2d at

743; see e.g., Amburgey v. United States, 733 F.3d 633, 638 (6th

Cir. 2013)(holding that the plaintiff’s wrongful death FTCA claim

accrued after she received the autopsy report, not on the date of

her husband’s death). Here, the date of accrual is unclear because

it is unknown when Boles received notice of Frederick’s death or

learned that the autopsy report ruled his death a homicide.

8 Additionally, under West Virginia law, a wrongful death action

shall be brought by the appointed personal representative of the

deceased. See W. Va. Code § 55-7-6(a). Boles alleges that she has

authority to bring this claim on Frederick’s behalf in this

capacity, but has offered no proof of her appointment. The

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Boles presented her executed Form 95 requesting two million dollars

in damages for Frederick’s death to the BOP within two years of the

accrual of her claim. As the Government has not challenged Boles’s

satisfaction of this administrative requirement, for the purpose of

resolving these motions the Court assumes that Boles’s claim has

been finally denied by the BOP and that she has exhausted her

administrative remedies.

B. Discretionary Function Exception

“The FTCA creates a limited waiver of the United States’

sovereign immunity by authorizing damages actions for injuries

caused by the tortious conduct of federal employees acting within

the scope of their employment, when a private person would be

liable for such conduct under state law.” Suter v. United States,

441 F.3d 306, 310 (2006)(citing 28 U.S.C. § 1346(b)(1)).9 This

waiver is subject to various exceptions, including one for the

performance of discretionary functions. Sanders v. United States,

Government did not contest her authority and the Court assumes that

Boles has standing to bring this case for the purpose of resolving

the pending motions.

9 West Virginia Code § 55-7-5 authorizes a decedent’s personal

representative to recover damages from a person or entity who

negligently caused the decedent’s death. Accordingly, Boles may

assert this wrongful death FTCA claim because a private person

would be liable under West Virginia law for negligence causing

Frederick’s death.

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937 F.3d 316, 327 (4th Cir. 2019). This “discretionary function

exception” immunizes the Government from “[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 federal

agency or an employee of the Government, whether or not the

discretion involved be abused.” 28 U.S.C. § 2680(a).

“FTCA plaintiffs have the burden of showing that the

discretionary function exception does not foreclose their claim.”

Seaside Farm, Inc. v. United States, 842 F.3d 853, 857 (4th Cir.

2016). But “unduly generous interpretations” of the FTCA exceptions

“run the risk of defeating the central purpose of the statute,

which waives the Government’s immunity from suit in sweeping

language.” Sanders, 937 F.3d at 327 (citing Dolan v. U.S. Postal

Serv., 546 U.S. 481, 491–92 (2006)).

Courts conduct a two-step analysis to determine if the

discretionary function exception applies. First, courts must

determine if the conduct at issue “involves an element of judgment

or choice.” Wood v. United States, 845 F.3d 123, 128 (2017)(citing

Berkovitz v. United States, 486 U.S. 531, 536 (1988). When a

statute, regulation, or policy prescribes the employee’s conduct,

such conduct cannot be discretionary and is therefore unprotected

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by the discretionary function exception. Wood, 845 F.3d at 128.

Second, courts must determine whether the challenged conduct is

based on considerations of public policy. Id. (quoting Berkovitz,

486 U.S. at 537). This step “prevent[]s judicial second-guessing of

legislative and administrative decisions grounded in social,

economic, and political policy....” Sanders, 937 F.3d at 328.

When established governmental policy, as expressed or implied

by statute, regulation, or agency guidelines, allows a Government

agent to exercise discretion, it must be presumed that the agent's

acts are grounded in policy when exercising that discretion.

Gaubert, 499 U.S. at 324. “In short, the discretionary function

exception ... shield[s] decisions of a government entity made

within the scope of any regulatory policy expressed in statute,

regulation, or policy guidance, even when made negligently.” Wood,

845 F.3d at 128. Therefore, to survive a motion to dismiss, a

complaint must allege facts supporting 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 regime. Id. at 24-25.

C. Analysis

The discretionary function exception immunizes the Government

from Boles’s claim if the challenged BOP conduct “involve[d] an

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element of judgment or choice” and was based on considerations of

public policy. Wood, 845 F.3d at 128 (2017). Pursuant to this

construct, the Court turns to address each of Boles’s allegations

of negligent conduct.

i. Element of Judgment or Choice

1. Failure to Protect

Boles first alleges that the BOP failed to protect Frederick

before the incidents, on June 19, 2017, and June 20 or 21, 2017

(Dkt. Nos. 1 at 9, 30 at 2-3). The BOP has a duty to provide for

the “protection,” “safekeeping,” and “care” of “all persons charged

with or convicted of offenses against the United States.” 18 U.S.C.

§ 4042(a)(2), (3). But under the statute’s broad directives, the

BOP retains discretion to implement that mandate. Rich, 811 F.3d at

145.

Courts in this District have uniformly held that decisions

regarding separating inmates from one another, preventing inmate

attacks, and controlling contraband weapons, the very decisions at

issue here, are discretionary, policy-based functions. Crawford v.

United States, 2019 WL 2366017, at *1, 7 (N.D.W. Va. June 4, 2019);

Evans v. United States, 2016 WL 4581339, at *1-2 (N.D.W. Va. Sept.

2, 2016). And, “a federal prisoner’s claims under the FTCA for

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injuries caused by a fellow inmate are uniformly held to be barred

by the discretionary function exception.” Little v. United States,

2014 WL 4102377, at *1, 5-7 (N.D.W. Va. Aug. 18, 2014).

It is beyond dispute that the discretionary function exception

applies to Boles’s failure to protect claim. The BOP clearly

retained discretion to discharge its duty to protect Frederick from

other inmates and to control contraband weapons before and after

the June 19, 2017 altercation.

Nevertheless, if Boles can establish that BOP staff failed to

follow a specific mandatory directive intended to protect an inmate

like Frederick, her claim would not be barred by the discretionary

function exception. A directive is mandatory if "the employee has

no rightful option but to adhere to the directive." Berkovitz, 486

U.S. at 536. Boles argued, for the first time in her response to

the Government's supplemental motion to dismiss, that BOP staff had

failed to protect Frederick because they did not search his

cellmate for weapons when that inmate entered the SHU (Dkt. No. 30

at 4).

Although Boles conducted discovery into the existence of BOP

policies related to the search of SHU inmates and cells, and the

Government identified three such practices for maintaining SHU

security, she has neither amended her complaint nor responded to

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the motion. Nor has she alleged that these practices are mandatory

or even formally established through duty post orders, Program

Statements, Institutional Supplements, or the Correctional Service

Manual, all of which describe various security measures to be

implemented by BOP officials.

Nor is there any indication in the Government's pleading that

these practices are mandatory or formally implemented. The SHU

security practices were identified by Joshua Brawley, the executive

assistant at USP Hazelton, who stated that, prior to entering the

SHU, inmates undergo pat, electronic, and visual searches (Dkt. No.

43 at 3-4). He does not state, however, that this directive is a

formal policy at USP Hazelton or that any other procedure exists

that BOP staff must follow to properly conduct these searches.

According to Brawley, as time permits, BOP staff conduct at least

five (5) searches of common areas and cells per shift. Id. at 4.

This practice allows BOP staff to rely on their observations and

experience to determine which areas should be searched and how

frequently searches are needed.

The record in this case establishes that the BOP adopted these

discretionary practices to fulfill its duty to protect inmates.

Without a mandatory directive prescribing a course of conduct,

decisions involving the control of contraband and protection of

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inmates from one another constitute discretionary, policy-based

functions. Crawford, 2019 WL 2366017, at *1. Therefore, as Boles

has not identified any policy which mandates BOP conduct, she

cannot avoid the discretionary function exception. Seaside Farm,

842 F.3d at 857.

Additionally, the Government has produced evidence

establishing that BOP staff were not careless in carrying out these

protocols in this case. BOP staff reviewed the inmate records for

both Frederick and his SHU cellmate prior to their assignments to

the SHU and discovered no reason to separate them (Dkt. No. 29 at

2). Both inmates were visually searched for weapons upon entering

the SHU (Dkt. No. 43 at 2-4). Moreover, although BOP staff searched

common areas and inmate cells throughout their shifts, they found

no weapons or any other reason to search Frederick’s shared cell.

Id.

Based on this record, Boles has failed to allege any mandatory

policy depriving BOP staff of their discretion to protect

Frederick.

2. Failure to Staff, Supervise, and Train

Boles next contends that the BOP failed to adequately staff

the facility and failed to train and supervise its employees (Dkt.

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AND DISMISSING CASE WITH PREJUDICE

No. 1 at 9-10). She later expanded on this theory by asserting the

BOP failed to train its staff to discover weapons in the SHU (Dkt.

No. 30 at 4).

Decisions of hiring, supervising, and training employees

essentially involve judgment and policy considerations, and are

“precisely the types of decisions that are protected under the

discretionary function exception.” LeRose v. United States, 285 F.

App’x 93, 96-97 (4th Cir. 2008). For example, BOP officials must

evaluate applicant qualifications, consider staffing requirements,

assess training needs as well as budgetary considerations, and, on

a daily basis, make numerous decisions regarding supervision of

employees. Id.; Dorsey v. Relf, 2013 WL 781604, at *5 (N.D. Tx.

Mar. 4, 2013). These multi-faceted choices require the balancing of

competing objectives, and are of the nature and quality that

Congress intended to shield from tort liability. LeRose, 285

F.App’x at 96. Therefore, BOP decisions regarding staffing at USP

Hazelton, as well as the supervision and training of employees,

involve an element of judgment or choice.

iii. Failure to Separate

Boles has alleged that the BOP failed to separate Frederick

from the person who stabbed him, or his known associate, before or

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after the June 19, 2017 incident (Dkt. No. 1 at 9-10). 28 C.F.R. §

524.72 permits, but does not require, the BOP to separate certain

inmates based on past behavior. “[P]rison officials must consider

several factors and exercise independent judgment in determining

whether inmates may require separation.” Rich, 811 F.3d at 145

(barring an FTCA claim based on allegations that the BOP should

have housed an inmate separately from gang members affiliated with

the inmate who previously had attacked him). Accordingly, BOP staff

retain discretion to determine where to house inmates and whether

to separate certain inmates from one another, and such separation

decisions are outside the scope of the FTCA. Id.

Here, BOP staff retained discretion to determine whether

Frederick should have been separated from any other inmate before

and after the June 19, 2017 altercation. Had the BOP’s housing

decisions been careless, or had Frederick’s SHU cellmate been the

same inmate with whom he had had an altercation on June 19, 2017,

or one of that inmate’s known associates, those decisions would not

be protected by the discretionary function exception. Rich, 811

F.3d at 147. But this is not the case here, where there is

undisputed evidence that, upon his return from Ruby to USP

Hazelton, Frederick was housed separately from the inmate who

stabbed him on June 19, 2017. The Government has also established

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AND DISMISSING CASE WITH PREJUDICE

that Frederick’s SHU cellmate had no known association with the

inmate involved in the June 19, 2017 altercation, and that there

was no security risk in placing him with Frederick. Thus, the BOP’s

decisions as to where to house Frederick, whether to place him in

a shared cell, and who his cellmate should be either before and

after the June 19, 2017, incident involved judgment or choice.

iv. Failure to Supervise and Monitor

Boles has alleged that BOP staff failed to adequately monitor

Frederick for signs of physical distress following his return from

Ruby (Dkt. No. 1 at 10). She later added that BOP staff had failed

to supervise Frederick adequately while in his shared cell in the

SHU, thereby allowing a second stabbing to occur on June 20 or 21,

2017 (Dkt. No. 30 at 2-3). These arguments fail, however, because

no BOP policy mandates a course of action for inmate monitoring in

the SHU.

Pursuant to 18 U.S.C. § 4042 (a)(2), the BOP had a duty to

provide for Frederick’s safekeeping. However, the BOP retained

discretion in determining how to care for and supervise Frederick

while he was in the SHU. Rich, 811 F.3d at 145.

Boles contends that 28 C.F.R. § 541.31 is a mandatory policy

that deprives BOP staff of their discretion in monitoring inmates

housed in the SHU (Dkt. No. 15 at 12). However, § 541.31(m) merely

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MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]

AND DISMISSING CASE WITH PREJUDICE

provides that inmates in the SHU “will be monitored by staff,” thus

clearly vesting BOP staff with the discretion to determine how to

monitor Frederick while in the SHU.

Moreover, the implementing instruction for § 541.31(m) states:

Program staff, including unit staff, arrange to visit

inmates in the SHU within a reasonable time after

receiving the inmate’s request.

In addition to direct supervision by the unit officer,

qualified health personnel and one or more responsible

officers the Warden designates (ordinarily the

Institution Duty Officer) visit each segregated inmate

daily, including weekends and holidays. A Lieutenant must

visit the SHU during each shift to ensure all procedures

are followed.

Federal Bureau of Prisons, Program Statement 5270.11, at 14 (Nov.

23, 2016).

While this program statement obligates BOP staff to visit

inmates upon request, it merely requires that such visits occur

“within a reasonable time,” without defining this term. It vests

discretion in BOP staff to prioritize their response among their

other duties. The program statement also calls for “direct

supervision,” but does not explain how BOP staff may meet this

requirement. Because Program Statement 5270.11 includes suggestive,

permissive, and discretionary language, as well as specific

directives, it is discretionary. Gonzalez v. United States, 814

F.3d 1022, 1029 (9th Cir. 2016) (considering the language of a

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AND DISMISSING CASE WITH PREJUDICE

guideline “as a whole” to determine whether it mandated certain

conduct); Herden v. United States, 726 F.3d 1042, 1047 (8th Cir.

2013) (finding the discretionary function exception applicable to

a code with predominantly permissive language mixed with mandatory

language); see e.g., Warren v. United States, 244 F. Supp. 3d 1173,

1243 (D.N.M. 2017) (finding that the discretionary function

exception applied to a policy requiring BOP staff to regularly

inspect all areas accessible to inmates and maintain visual contact

with holding cells at all times).

Notably, Boles has not alleged that BOP staff failed to

respond to a request by Frederick “within a reasonable time,” or

that a qualified health personnel or responsible officer failed to

visit him as required. Instead, she contends that BOP staff failed

to monitor Frederick’s cell in the SHU and that adequate monitoring

would have allowed BOP staff to notice signs of distress or would

have prevented a second attack. Program Statement 5270.11, however,

is discretionary and does not mandate a course of conduct for

inmate monitoring in the SHU.

Finally, the Government has established that SHU staff at USP

Hazelton observe each cell at least once every thirty minutes (Dkt.

No. 43 at 4). This practice is not mandated in a statute,

regulation, or policy. While this custom prescribes a minimum

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AND DISMISSING CASE WITH PREJUDICE

standard of conduct, it does not wholly deprive SHU staff of

discretion. It does not state what constitutes proper observation

or mandate how staff must conduct their rounds. Further, while

Frederick was housed in the SHU BOP staff observed his cell twice

per hour, held a meeting in his cell at 7:40 A.M. on June 21, 2017,

and last observed his cell 9:24 A.M., less than a minute before he

called for help. Id. at 4. Accordingly, BOP staff were not careless

in monitoring Frederick in the SHU, nor would any further

observation have allowed staff to better respond to Frederick or

protect him from an attack.

v. Failure to Transfer

Finally, Boles has alleged that the BOP failed to transfer

Frederick out of the SHU in a timely manner10 (Dkt. No. 30 at 3).

She has contended that BOP staff violated non-discretionary Program

Statement 5270.11, which authorizes the BOP to place inmates in the

SHU for disciplinary and administrative segregation purposes.11

10 It is worth noting that Boles raised this theory for the first

time in response to the Government’s motion to dismiss (Dkt. No.

30). Accordingly, the Court need not consider this new claim. To

the extent that it may fairly be viewed as an extension of her

failure to protect theory, however, the Court will consider her

argument.

11 This Program Statement pertains to 28 C.F.R. § 541.27(d), which

describes the circumstances in which an inmate may be placed in

administrative detention as a protection case.

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Specifically, this program statement provides:

When an inmate is placed in Administrative Detention for

an investigative period and the threat is verified,

correctional officers should seek alternative housing, by

transferring the threatened inmate either to the general

population of another institution or to a special-purpose

housing unit for inmates who face similar threats, with

conditions comparable to those of the general population.

When the inmate poses such security risk that even a

special-purpose housing unit is insufficient to ensure

the inmate’s safety and the safety of staff, other

inmates, and the public, the inmate may be housed in more

restrictive conditions. The inmate’s placement should be

regularly reviewed to monitor any medical or mental

health deterioration and to determine whether the

security risks have subsided.

Federal Bureau of Prisons, Program Statement 5270.11, at 8 (Nov.

23, 2016).

Assuming that Frederick was in the SHU for an investigative

period and that the threat against him was “verified” one day after

the June 19, 2017 incident, Program Statement 5270.11 indicates

that correctional officers “should” seek alternative housing. Id.

It also provides that, in certain cases, BOP staff “may” place

inmates in more restrictive housing and that such placement “should

be regularly reviewed.” Id.

The language used within this program statement clearly

involves elements of judgment or choice. It neither requires

correctional officers to seek alternative housing nor mandates the

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time requirement for their review of an inmate’s housing. Because

it “repeatedly limits its own recommendations,” it cannot be

characterized as mandatory. Hart v. United States, 630 F.3d 1085,

1090 (8th Cir. 2011). Accordingly, Program Statement 5270.11 does

not mandate any conduct that the BOP violated by failing to

transfer Frederick out of the SHU less than two days after he

returned from Ruby. BOP staff retained discretion to determine if

and when such transfer was warranted.

vi. Policy Considerations

Boles has made no argument regarding the policy element of the

discretionary function exception. However, because each instance of

alleged negligent conduct involves an element of judgment or

choice, it may be presumed that the BOP’s decisions relative to

Frederick were grounded in policy. Gaubert, 499 U.S. at 324.

Accordingly, each instance of negligent conduct alleged by

Boles involved an element of judgment or choice and implicated

public policy considerations. As Boles has not met her burden of

“showing that the discretionary function exception does not

foreclose [her] claim,” Seaside Farm, 842 F.3d at 857, the Court

lacks jurisdiction to address the merits of her wrongful death

suit. See Holbrook v. United States, 673 F.3d 341, 345 (4th Cir.

2012).

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MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT’S

MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]

AND DISMISSING CASE WITH PREJUDICE

IV. CONCLUSION

For the reasons discussed, the Court:

1. GRANTS the Government’s motion to dismiss (Dkt. No. 10);

2. GRANTS the Government’s supplemental motion to dismiss

(Dkt. No. 29);

3. GRANTS the Government’s second supplemental motion to

dismiss (Dkt. No. 43); and

4. DISMISSES the Plaintiff’s claim for wrongful death WITH

PREJUDICE and DIRECTS that it be stricken from the

Court’s active docket.

The Clerk SHALL enter a separate judgment order and transmit

copies of both orders to counsel of record.

DATED: February 9, 2021.

/s/ Irene M. Keeley

IRENE M. KEELEY

UNITED STATES DISTRICT JUDGE

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