Ben Gary Triestman v. Federal Bureau of Prisons, United States of America

LYNCH, District Judge,

dissenting:

In January 1995, Ben Gary Triestman was brutally assaulted by a cellmate in the Federal Correctional Institution at Ray Brook, New York. On August 16, 1995, he filed a lawsuit pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 , 91 S.Ct. 1999 , *478 29 L.Ed.2d 619 (1971), against several prison officials, alleging that their actions and negligence had proximately caused the injuries inflicted on him in the assault. He filed the instant case on July 10, 1996, alleging that the Federal Bureau of Prisons and the United States were also responsible for his injuries. He advanced a number of theories in these lawsuits, including that the Bureau and individual prison officials improperly transferred him to Ray Brook in the first place based on an inaccurate assessment of his security level, that they acted negligently in double-cell-ing him with a known violent sexual predator, and, most relevant to this appeal, that the Bureau failed to comply with a regulation requiring that prisoners not be left in locked housing units without either a signaling device that would permit calling for help in the event of emergency, or “continuous staff coverage.” (See App. at 13-18.) The district court denied Triestman’s motion to consolidate the two lawsuits and, at various stages of the litigation, rejected all of Triestman’s theories of liability in each case. 1

After receiving final judgments from the district court, Triestman abandoned the Bivens action and most of the claims against the Bureau, choosing to appeal instead only the dismissal of his claim against the Bureau regarding the alleged lack of “continuous staff coverage.” According to Triestman, the district court erred when it dismissed this claim under the “discretionary function” exception to the Federal Tort Claims Act (FTCA). See 28 U.S.C. § 2680 (a). The argument is straightforward: Triestman contends that because the placement of a single guard on duty for an entire housing unit cannot be interpreted as providing “continuous staff coverage,” the Bureau’s assignment of only one guard to his unit violated mandatory regulations requiring either “continuous staff coverage” or an emergency signaling device. (Appellant’s Br. at 5-8.) The discretionary function exception, Triestman argues, does not permit the Bureau to redefine the plain meaning of “continuous staff coverage” to include “any de minimus level prison staff care.” (Appellant’s Reply Br. at 5.) To hold otherwise, he asserts, would render the FTCA ineffective, by allowing the government to cast any unreasonable interpretation of a mandatory regulation as an exercise of its “discretion” and therefore immune from judicial scrutiny. (See id. at 5-6 .)

Rather than address the merits of this argument, the Court today determines sua sponte that a theory of negligence on the part of the specific guard on duty (which in turn could be attributed to the United States on a theory of respondeat superior) lurks unexpressed in Triestman’s FTCA complaint, and remands the case to the district court to explore liability on this basis. The Court thus extends this ten-year old litigation by requiring the district court essentially to start at the beginning with an entirely new theory never asserted by Triestman, while at the same time declining to decide the one issue that the parties have clearly presented for decision.

One is loathe to dissent from a ruling that appears simply to keep open an option for a pro se plaintiff who was unquestionably injured, by suggesting an avenue of relief that conceivably could be successfully pursued by a diligent attorney. After all, it is common ground that submissions of pro se litigants must be read liberally to include “the strongest arguments they suggest.” Wright v. C.I.R., 381 F.3d 41, 44 (2d Cir.2004). As the Court indicates, reasonable people can disagree over *479 whether a given theory is encompassed within a complaint. It is tempting simply to go along with an apparently charitable impulse to make sure every theory has been explored.

Here, however, even under a liberal interpretation, I do not believe Triestman’s complaint can fairly be read to allege that his injuries resulted from a particular guard’s negligence, laziness, or inattentiveness. On the contrary, Triestman clearly alleges that the Bureau’s practice of placing a single guard on duty made it impossible for any guard even to hear Triest-man’s cries for help, and therefore made it impossible for any guard to prevent his injuries. The complaint alleges, for example, that the housing unit contained “two widely separated wings,” and that the single officer assigned to patrol them “could not hear or be alerted to an emergency” in one wing while he was in the other. (App. at 7 (emphasis added).) “A single staff member,” the complaint continues, “cannot be said to be staffing both wings when he cannot hear or be alerted to an emergency in the opposing wing.” (Id. (emphasis added).) Though the complaint alleges injuries caused by “substandard and insufficient patrolling and monitoring of the inmate rooms,” it clearly explains that these deficiencies existed “due to [the] lack of staffing,” and cannot fairly be read to attribute the “insufficient patrolling” to the negligence of particular guards. (Id.)

Triestman’s brief on appeal is also inconsistent with the “negligent guard” theory. Thus, even if the complaint could be read to include a claim that a particular guard was inattentive or lazy, this Court should deem the claim abandoned on appeal. See Cruz v. Gomez, 202 F.3d 593 , 596 n. 3 (2d Cir.2003) (“When a litigant — including a pro se litigant — raises an issue before the district court but does not raise it on appeal, the issue is abandoned.” (citing Lo-Sacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir.1995))). Nowhere in the brief does Triestman claim that the guard on duty on the night of the assault acted negligently in any manner. The brief asserts instead that when an officer was stationed in his “assigned” position, “it was impossible for [him] to hear cries for help from any of the cells.” (Appellant’s Br. at 4 (emphasis added).) Though the assigned guard was required to make two “cell checks” at regularly scheduled times during the night, the brief explains, “the inmates [were] entirely beyond earshot of the guard” at all other times. (Id.; see also id. at 7 (“[B]etween [cell checks,] ... a guard cannot ... hear an inmate’s calls or cries for help.”).) 2 These factual allegations, which the majority largely ignores, are inconsistent with any claim that a guard’s negligence caused plaintiffs injuries. Contrary to the majority’s conclusion that “Triestman’s claim about the inadequacy of the staffing policy is in no way inconsistent with the second argument about the negligence of [Bureau] employees,” Majority Opinion at 9 n. 5 (emphasis omitted), Triestman’s complaint and brief make clear that, because the Bureau placed only one guard on duty, even a diligent guard would have been physically unable to hear Triestman’s cries for help. If a guard’s diligence would not have prevented Triestman’s injuries, the lack of diligence on the guard’s part could not have caused them. 3

*480 It is telling, moreover, that Triestman has not hesitated to allege negligence or recklessness on the part of particular prison officials when he believes they are responsible for his injuries. In the unap-pealed Bivens action — which related to the same assault at issue in this case — Triest-man alleged that Roger Fink, the prison’s Safety Manager, as well as some of Fink’s employees, had acted with “deliberate indifference” in “keeping the facility without necessary safety devices” that could have prevented Triestman’s injuries. Complaint at Id, Triestman v. Sizer (N.D.N.Y.1995) (95 Civ. 1140). Triestman also alleged that two of the prison wardens were “responsible for keeping Ray Brook FCI below federally mandated conditions, resulting in Plaintiffs injury.” Id. The Bivens complaint, however, did not allege laziness, inattentiveness, or negligence on the part of any guard on duty the night Triestman was attacked. This further confirms what the complaint and appellate brief in the instant case already make clear — that Triestman has never intended to advance the theory invented by the Court today.

My most serious objection to the majority’s disposition of the case, however, has less to do with the Court’s willingness to read the pro se complaint to contain a theory not presented' — though I disagree with its reading — than with its unwillingness to decide the issue that plainly is presented. The district court in this case considered and ruled on what the majority refers to as the “negligent policy” claim. Triestman then appealed, presenting this Court with a very clear argument as to why the district court’s application of the discretionary function exception to bar the “negligent policy” claim was in error. The issue having been decided by the district court and fully briefed by the parties on appeal, I believe that we have a responsibility to rule on it. After all, if the “negligent policy” claim has merit, and the district court’s decision should be reversed on that basis, then the plaintiffs case goes forward expeditiously. If it does not, then the district court need waste no further time on that theory. 4

Under the majority’s chosen course, however, the case is remanded to the district court to revisit, possibly with the assistance of counsel, a claim that the district court has already found without merit. If the district court was right, this will be a waste of everyone’s time; if the district court was wrong, the error will have *481 to be corrected by this Court at some future time, and correction of the error will have been long delayed, to the benefit of no one — and certainly not of Triestman. Moreover, since no one until now has ever considered the “negligent guard” theory that the majority finds hidden in the complaint, the actual behavior of the guard in question has not been explored in discovery. The proceedings on remand, therefore, may well be extensive and time-consuming. One may hope that it will not take another ten years to bring the case again to a final judgment, but there is no small likelihood of a lengthy and inconclusive battle over an invented issue.

Rather than the “special solicitude” represented by the majority’s disposition, see Majority Opinion at 475 (quoting Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir.1994)), a reasonable pro se litigant might well prefer to be accorded the ordinary respect of this Court’s deciding the issue he has earnestly put before us. If he is correct, the case can proceed on the theory that he has chosen and pursued for ten years. If he is not, then that branch of the litigation will be terminated, and Triestman will be spared the time and expense of re-litigating a losing argument.

Because I believe the Court has improperly ducked the one issue properly presented to it, and has unnecessarily required the district court to extend a decade-old litigation by addressing issues not fairly suggested by the plaintiffs complaint or appellate brief, I respectfully dissent.

. These cases represent only two of over a dozen cases filed by Triestman in the District Court for the Northern District of New York between 1992 and 1996.

. According to Triestman, the assault occurred between cell checks (see App. at 20), and thus occurred at a time when “it was impossible for any ... guard" in his "assigned” position “to hear cries for help." (Appellant’s Br. at 4.)

. The majority notes that this Court "has, in a similar case, read such a 'negligent guard’ *480 theory into a pro se complaint that was 'susceptible to various readings.' " Majority Opinion at 475 (quoting Coulthurst v. United States, 214 F.3d 106, 109 (2d Cir.2000)). In Coulthurst , however, unlike in this case, the plaintiff clearly presented a ''negligent guard” theory on appeal. It is one thing to read a complaint liberally to avoid finding that a plaintiff has forfeited a claim he wishes to make before this Court. It is quite another to read a complaint to contain a claim the plaintiff does not assert even on appeal. While Coulthurst may provide further support for the undisputed proposition that pro se submissions should be construed liberally to raise the strongest arguments they suggest, the case provides no support for the majority's refusal to take into account the multiple, unambiguous factual allegations in Triestman's submissions that undermine the "negligent guard” theory.

. Though I believe Triestman presented his arguments effectively, I would have not the slightest objection to appointing counsel in this Court if the majority felt that doing so could elucidate the issues better for us and result in fairer treatment for Triestman. This is precisely what the Court did in Coulthurst , which as the majority notes similarly involved allegations of negligence by an injured prisoner. See 214 F.3d at 108 . The Coulthurst panel specifically instructed appointed counsel to explore the viability of the negligent guard theory. See Coulthurst v. United States, 98-2860 (2d Cir. July 22, 1999) (order appointing counsel).