holding that, where a directive sets forth broad objectives but “does not specifically prescribe a course of action for prison officials to follow,” officials have discretion on how to accomplish the objectives
How later courts described this case
- holding that, where a directive sets forth broad objectives but “does not specifically prescribe a course of action for prison officials to follow,” officials have discretion on how to accomplish the objectives
- concluding that plaintiff failed to provide in his complaint sufficient factual support to “rebut the Gaubert presumption that the decisions by prison officials regarding his safety were based upon BOP policy”
- concluding that plaintiff failed to allege sufficient factual support to “rebut the Gaubert presumption that the decisions by prison officials regarding his safety were based upon BOP policy”
- concluding that the use of the word “may,” as opposed to “shall” in 28 C.F.R. §§ 541.22 (a) and 541.23(a) “demonstrates that their implementation is left to the discretion of BOP officials.”
Written by the judges who cited it.
The opinion
ROGERS, Circuit Judge,
concurring.
CONCURRENCE
I concur in the majority’s judgment and almost totally in its reasoning. My one reservation concerns the first complaint allegation discussed by the majority: that because of Hearlson’s previous stint in protective custody, BOP officials knew or should have known that Hearlson was in danger and failed to provide him reasonable protection. With respect, the issue for discretionary function exception purposes is not whether there is sufficient support for the allegation, nor is the issue the specificity or immediacy of the threat. Instead, the relevant question is whether the ongoing determination of where Hearl-son would be placed was the type of agency decision-making that takes broad agency policies into account. In short, the relevant inquiry is the nature of the decision-making process, not the nature of the threat. I agree, however, that there is nothing about this allegation that rebuts the presumption that the prison officials’ decisions regarding Hearlson’s safety were the type of decision that is grounded in policy.