Petition for Writ of Certiorari — Cohen v. United States

98134QFE

In the United States Supreme Court

WILLIAM COHEN,

Plaintiff-Appellant

vs. Docket No.

October 1998 Term

UNITED STATES OF AMERICA On Petition for Writ

Defendant-Appellee of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

Petition for Writ of Certiorari to the

United States Court of Appeals for the Eleventh

Circuit

11" Circuit Docket No. 97-8737

Submitted on behalf of Plaintiff William Cohen by

Allan Falk, P.C.

by Allan S. Falk, Esq.

Counsel of Record

2010 Cimarron Dr.

Okemos, MI 48864-3908

(517) 381-8449 (voice)

(517) 381-8450 (fax)

falklaw@acd.net

l

QUESTIONS PRESENTED FOR REVIEW

Whether a statutory right of action for negligence based on a

federal enactment—18 USC 4042- recognized in United States v

Muniz, 374 US 150; 83 S Ct 1850; 10 L Ed 2d 805 (1963) on

behalf of a federal prisoner assaulted by another prisoner

improperly classified to the same correctional institution and

security level is negated-thus leaving federal prisoners with no

legally enforceable right of protection by the Bureau of Prisons

against bodily harm while in federal custody other than that found

in the Eighth Amendment prohibition against cruel and unusual

punishment-by the discretionary function exception to the Federal

Tort Claims Act, despite decisions in other circuits, Brown v

United States, 486 F2d 284, 288 (CA 8, 1973); Jones v United

States, 91 F3d 623 (CA 3, 1996); Payton v United States, 679 F2d

475, 482 (CA 5, 1982)(en banc), and Flechsig v United States,

991 F2d 300, 303-304 (CA 6, 1993) rejecting that notion and

contradicting the Eleventh Circuit’s decision, and notwithstanding

the principle established in FDIC v Meyer, 510 US 471, 114S Ct

996, 127 L Ed 2d 308 (1994), that the discretionary function

exception has no application to rights based on federal law?

Whether Plaintiff is entitled to recover damages, without regard to

the FTCA, based on a theory of constitutional tort, where plaintiff s

pleadings were filed in propria persona and therefore, however

“inartfully pleaded,” are entitled to be broadly construed, Estelle v

Gamble, 429 US 97, 106; 97 S Ct 285; 50 L Ed 2d 251 (1976),

Haines v Kerner, 404 US 519, 520-521; 92 § Ct 594; 30 L Ed 2d

652, so as to embrace not only an FTCA theory but a constitutional

tort theory, establishing an alternate and independent basis for

affirming the judgment of the District Court pursuant to Owens v

Haas, 601 F2d 1242, 1249 (CA 2, 1979), cert den 444 US 980;

100 S Ct 483; 62 L Ed 2d 407, and Carlson v Green, 446 US 14,

19; 100 S Ct 1468; 64 L Ed 2d 15 (1980)?

TABLE OF CONTENTS

Questions Presented for Review p.1

Table of Contents p. ti | |

List of All Parties in the Eleventh Circuit p. ill |

Table of Citations p. iv

Citations of the Official and Unofficial Reports of the Opinions and

Orders Entered in this Case by Lower Courts p. Vil

Jurisdictional Statement p. Vill

Full Text of Constitutional Provisions and Statutes Involved

in the Present Case p. x

Statement of the Questions Presented p. Vill

Statement of Facts p. |

Argument p. 8

Conclusion p. 18

Certificate of Service p. 19

List of All Parties in the Eleventh Circuit

William Cohen, Plaintiff

Neal G. Gale, plaintiff's trial counsel (based on a contingency fee

claim)

United States of America, Defendant

THERE ARE NO PARENT COMPANIES OR NON-WHOLLY

OWNED SUBSIDIARIES TO BE DISCLOSED PURSUANT TO

RULE 29.6: THERE ARE NO CORPORATIONS INVOLVED IN

THIS MATTER .

ii!

Table of Citations

Cases

Berkovitz v United States, 486 US 531, 108 S Ct 1954,

100 L Ed 2d 531 (1988) p. 15

Bolling v Sharpe, 347 US 497, 499, 74 § Ct 693, '

98 L Ed 884 (1954) p. 14

Brown v United States, 486 F2d 284 (CA 8, 1973) pp. 13, 14

Brunette Machine Works v Kockum Indus, 406 US 706,

92 S Ct 1936, 32 L Ed 2d 428 (1972) =p. 11,12

Calderon v United States, 123 F3d 947 (CA 7, 1997) p. 13

Carlson v Green, 446 US 14, 100 S Ct 1468,

64 L Ed 2d 15 (1980) p. 16

Chrysler Corp v Brown, 441 US 281, 99 S Ct 1705,

60 L Ed 2d 208 (1979)- p. 15

CJW by and through L W v State, 253 Kan 1,

853 P2d 4 (1993) p. 10

Cline v Herman, 601 F2d 374 (CA 8, 1979) pp. 8, 14

Cohen v United States, 151 F3d 1338, 12 Fla

L Weekly F C3 (CA 11, 1998) (present case) p. 17

Connecticut Nat Bank v Germain, 503 US 249,

112 S Ct 1146, 117 L Ed 2d 391 (1992) p. 12

Cort v Ash, 422 US 66, 95 S$ Ct 2080,

45 L Ed 2d 26 (1975) pp. 9, 13

Dorr v United States, 195 US 138, 24 S Ct 808,

49 L Ed 2d 128 (1904) p. 15

Estelle v Gamble, 429 US 97, 97 § Ct 285,

50 L Ed 2d 251 (1976) p. 16

Farmer v Brennan, 511 US 825; 114 § Ct 1970;

128 L Ed 2d 811 (1994) p. 16

FDIC v Meyer, 510 US 471, 114 S Ct 996,

127 L Ed 2d 308 (1994) pp. 8,9, 11, 13

Federal Express v US Postal Service,

151 F3d 536 (1998) pp. 9-10, 11, 13

Flechsig v United States, 991 F2d 300 (CA 6, 1993) pp. 7, 14,15

Haines v Kerner, 404 US 519, 92 § Ct 594,

30 L Ed 2d 652 (1972) p. 16

Halperin v Kissinger, 196 US App DC 285,

606 F2d 1192 (1979), affirmed in part,

iV

piokivebiadiimiae TR

cert dismissed in part 452 US 713,

101 S Ct 3132, 69 L Ed 2d 367 p. 11

Indian Towing Co v United States, 350 US 61,

76 § Ct 122, 100 L Ed 61 (1955) p. 12

Jackson v United States, 24 F Supp 2d 823

(WD Tenn, 1998) pp. 14, 15

Jones v United States, 91 F3d 623 (CA 3, 1996) pp. 13, 14

Kennewick Irrigation Dist v United States, 880 F2d

1018 (CA 9, 1989) p. 6

Ochran v United States, 117 F3d 495 (CA 11, 1997) pp. 8,9

Owens v Haas, 601 F2d 1242 (CA 2, 1979) p. 16

Persico v Gunnell, 560 F Supp 1128 (SD NY, 1983) p. 12

Phillips v United States, 956 F2d 1071 (CA 11,1992) p. 6

Sullivan v Little Hunting Park, Inc, 396 US 229,

90 § Ct 229, 24 L Ed 2d 386 (1969) p. 12

Texas & Pac R Co v Rigsby, 241 US 33, 36 S Ct 482,

60 L Ed 874 (1916) pp. 12

Thermtron Products, Inc v Hermansdorfer, 423 US 336,

96 S Ct 584, 46 L Ed 2d 542 (1976) p. Il

Things Remembered, Inc v Petrarca, 516 US 124,

116 S Ct 494, 133 L Ed 2d 461 (1995) p. 11

United States v Cohen, 946 F2d 430 (CA 6, 1991) p. 2

United States v Gaubert, 499 US 315, 111 S Ct 1267,

113 L Ed 2d 335 (1991) pp. 6, 12, 15

United States v Kelly, 687 F2d 1217, 1220 (CA 8, 1982) p. 3,17

*United States v Muniz, 374 US 150; 83 S Ct 1850,

10 L Ed 2d 805 (1963) pp. 6, 8, 9

United States v Rock Island Centennial Bridge Comm'n,

230 F Supp 654 (SD Ill, ND, 1964) p. 10

United States v United Continental Tuna Corp,

425 US 164, 96$ Ct 1319,

47 L Ed 2d 653 (1976) p. 12

U S Fidelity & Guaranty Co United States, 837 F2d

116 (CA 3, 1988), cert den 487 US 1235,

108 S Ct 2902, 101 L Ed 2d 935 p. 6

Constitutional Provisions

U.S. Const., Amendment V

Statutes

18 USC §3521

18 USC §3621

18 USC $4041

18 USC §4042

28 USC §501

28 USC §503

28 USC §1254(1)

28 USC $1346(b)

28 USC §2671 et seq

28 USC §2672

28 USC §$2679%(a)

28 USC §2680(a)

42 USC §$1997e(a)

Kansas Stat. Ann. 75-6104(e)

Court Rules

FRAP 4(a)(1)

FRAP 4(a)(3)

FRAP 25(a)

FRAP 40(a)

FRCivP 56

11" Cir. R. 35-6

11 Cir. IOP 25.1

Supreme Court Rule 13

vi

p. 14

pp. 8,9

pp. 11, 12

p. 10

pp. 1, 6, 8,

9,11, 12,14

VUUVUDUUY

y

Citations of the Official and Unofficial Reports

of the

Opinions and Orders Entered in This Case

by Lower Courts

Cohen v United States, 151 F3d 1338, 12 Fla L Weekly F C3 (CA 11,

1998)

THERE IS NO OFFICIAL OR UNOFFICIAL CITATION FOR THE

DECISION OF THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF GEORGIA, BRUNSWICK

DIVISION.

[Copies of the District Court’s Findings of Fact, Judgment, and

Interlocutory Decisions on pertinent motions are found in Appendices

1-4]

Vil

Jurisdictional Statement

William Cohen, in propria persona as well as inops consilii,

after his administrative claim (timely filed on January 12, 1994) was

rejected, filed this lawsuit in the United States District Court, Southern

District of Georgia (Brunswick Division) on December 29, 1994'. The

administrative claim was presented pursuant to 28 USC §2672? and the

jurisdiction of the District Court was invoked under 28 USC §1346(b)(1),

which grants the district courts exclusive jurisdiction of civil actions on

claims against the United States for money damages or personal injury

caused by the omission, negligence, or wrongful act of any employee of the

federal Government while acting within the scope of office or employment.

After trial to the bench, during which Cohen was represented by

counsel, judgment was entered by the United States District Court, Southem

District of Georgia (Brunswick Division) on May 16, 1997. The United

States had 60 days from that date, or until July 15, 1997, in which to file its

notice of appeal. FRAP 4(a)(1). The United States Court of Appeals for

the Eleventh Circuit's jurisdiction over the government's appeal was

accordingly vested by the timely filing of a Notice of Appeal on July 11,

1997.

Jurisdiction of the Eleventh Circuit over the cross-appeal was

vested by virtue of the filing, again pro se, of Plaintiff William Cohen's

Notice of Appeal on July 23, 1997 (by Federal Express overnight service,

FRAP 25(a) and | 1th Cir. IOP 25.1), less than 14 days after the filing of the

original Notice of Appeal by the United States on July 11, 1997. FRAP

4(a)(3). Thereafter, present counsel appeared for Cohen and briefed and

argued the case before the Eleventh Circuit.

The Eleventh Circuit reversed the judgment of the District Court,

holding that the discretionary function exception to the Federal Tort Claims

Act insulates the Government from liability, thus not reaching issues raised

' In its District Court pleadings, the Government acknowledged that service of process

was made on the Attorney General on January 9, 1995, and on the United States

Attorney on January 19, 1995.

? Mr. Cohen, suing for injuries sustained while incarcerated under the jurisdiction of the

Attorney General (Bureau of Prisons), by virtue of having been liberated pnor to filing

the lawsuit, was not additionally subject to the requirement of 42 USC §1997e(a) to

exhaust administrative remedies, although the filing of his administrative claim

nonetheless had the effect of satisfying that statutory requirement if applicable.

Vili

in Cohen’s cross-appeal, by opinion released August 26, 1998. Cohen v

United States, 151 F3d 1338; 12 Fla L Weekly Fed C 3 (CA 11, 1998).

Cohen timely moved for rehearing, FRAP 40(a), and 11° Cir.R. 40-2, and

rehearing en bane (by virtue of | Ith Cir. R. 35-6, a suggestion of reheanng

en banc is automatically “treated as a petition for rehearing before the

original panel” ), but rehearing was denied by order of November 20, 1998.

This petition for certiorari is accordingly timely if filed on or before

February 18, 1999 (90 days after November 20, 1998). Supreme Court

Rule 13.1 and 13.3. The jurisdiction of the Supreme Court is invoked on

the authority of 28 USC §1254(1).

iX

Full Text of Constitutional Provisions and Statutes

Involved in the Present Case

Constitutional Provisions:

U. S. Constitution, Amendment V:

No person shall be held to answer for a capital or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor

shall any person be subject for the same offence to be

twice put in jeopardy of life or limb, nor shall be

compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property

without due process of law; nor shall private property

be taken for public use without just compensation.

Statutes:

(in numerical order by Title and Section)

18 USC §3521:

(a)(1) The Attorney General may provide for the

relocation and other protection of a witness or a

potential witness for the Federal Government or for a

State government in an official proceeding concerning

an organized criminal activity or other serious offense,

if the Attorney General determines that an offense

involving a crime of violence directed at the witness

with respect to that proceeding, an offense set forth in

chapter 73 of this title directed at the witness, or a

State offense that is similar in nature to either such

offense, is likely to be committed. The Attorney

General may also provide for the relocation and other

protection of the immediate family of, or a person

otherwise closely associated with, such witness or

potential witness if the family or person may also be

endangered on account of the participation of the

witness in the judicial proceeding.

(2) The Attorney General shall issue guidelines

defining the types of cases for which the exercise of

xX

the authority of the Attorney General contained in

paragraph (1) would be appropriate.

(3) The United States and its officers and employees

shall not be subject to any civil liability on account of

any decision to provide or not to provide protection

under this chapter.

18 USC §3621(b):

(a) The Bureau of Prisons shall designate the place of the

prisoner's imprisonment. The Bureau may designate any

available penal or correctional facility that meets minimum

standards of health and habitability established by the Bureau,

whether maintained by the Federal Government or otherwise

and whether within or without the judicial district in which the

person was convicted, that the Bureau determines to be

appropriate and suitable, considering—

(1) the resources of the facility contemplated;

(2) the nature and circumstances of the offense;

(3) the history and characteristics of the prisoner;

(4) any statement by the court that imposed the sentence—

(A) concerning the purposes for which the sentence

to imprisonment was determined to be

warranted; or

(B) recommending a type of penal or

correctional facility as appropriate, and

(5) any pertinent policy statement issued by the

Sentencing Commission pursuant to section

994(a)(2) of title 28.

18 USC §4041:

The Bureau of Prisons shall be in charge of a director

appointed by and serving directly under the Attorney

General at a salary of $10,000 a year. The Attorney

General may appoint such additional officers and

employees as he deems necessary.

18 USC §4042(2):

The Bureau of Prisons, under the direction of the

Attorney General, shall—

XI

4

4

.

(2) provide suitable quarters and provide for the

safekeeping, care, and subsistence of all persons

charged with or convicted of offenses against the .

United States, or held as witnesses or otherwise;

2) Bree:

18 USC §4081:

The Federal penal and correctional institutions shall be

so planned and limited in size as to facilitate the

development of an integrated system which will assure

the proper classification and segregation of Federal

prisoners according to the nature of the offenses

committed, the character and mental condition of the

prisoners, and such other factors as should be

considered in providing an individualized system of

discipline, care, and treatment of the persons

committed to such institutions.

28 USC §501:

The Department of Justice is an executive department

of the United States at the seat of Government

28 USC §503:

The President shall appoint, by and with the advice

and consent of the Senate, an Attorney General of the

United States. The Attorney General is the head of the

Department of Justice.

28 USC §$1254(1):

Cases in the courts of appeals may be reviewed by the

Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition of

any party to any civil or criminal case, before or

after rendition of judgment or decree; . . .

28 USC §1346(b)(1):

(b)(1) Subject to the provisions of chapter 171 of this

title, the district courts, together with the United States

District Court for the District of the Canal Zone and

Xi

ee —————aoooOVv—O——VOOOOooOoe

the District Court of the Virgin Islands, shall have

exclusive jurisdiction of civil actions on claims against

the United States, for money damages, accruing on

and after January 1, 1945, for injury or loss of

property, or personal injury or death caused by the

negligent or wrongful act or omission of any employee

of the Government while acting within the scope of his

office or employment, under circumstances where the

United States, if a private person, would be liable to

the claimant in accordance with the law of the place

where the act or omission occurred.

28 USC §2671:

As used in this chapter and sections 1346(b) and

2401(b) of this title, the term "Federal agency"

includes the executive departments, the judicial and

legislative branches, the military departments,

independent establishments of the United States, and

corporations primarily acting as instrumentalities or

agencies of the United States, but does not include any

contractor with the United States.

"Employee of the government" includes officers or

employees of any federal agency, members of the

military or naval forces of the United States, members

of the National Guard while engaged in training or

duty under section 316, 502, 503, 504, or 505 of title

32, and persons acting on behalf of a federal agency in

an official capacity, temporarily or permanently in the

service of the United States, whether with or without

compensation.

"Acting within the scope of his office or employment”,

in the case of a member of the military or naval forces

of the United States or a member of the National

Guard as defined in section 101(3) of title 32, means

acting in line of duty.

28 USC §2672:

The head of each Federal agency or his designee, in

accordance with regulations prescribed by the

xiii

Attorney General, may consider, ascertain, adjust,

determine, compromise, and settle any claim for

money damages against the United States for injury or

loss of property or personal injury or death caused by

the negligent or wrongful act or omission of any

employee of the agency while acting within the scope

of his office or employment, under circumstances

where the United States, if a private person, would be

liable to the claimant in accordance with the law of the

place where the act or omission occurred: Provided,

That any award, compromise, or settlement in excess

of $25,000 shall be effected only with the prior written

approval of the Attorney General or his designee.

Notwithstanding the proviso contained in the

preceding sentence, any award, compromise, or

settlement may be effected without the prior written

approval of the Attorney General or his or her

designee, to the extent that the Attorney General

delegates to the head of the agency the authority to

make such award, compromise, or settlement. Such

delegations may not exceed the authority delegated by

the Attorney General to the United States attorneys to

settle claims for money damages against the United

States. Each Federal agency may use arbitration, or

other alternative means of dispute resolution under the

provisions of subchapter IV of chapter 5 of title 5, to

settle any tort claim against the United States, to the

extent of the agency's authority to award, compromise,

or settle such claim without the prior written approval

of the Attorney General or his or her designee.

Subject to the provisions of this title relating to civil

actions on tort claims against the United States, any

such award, compromise, settlement, or determination

shall be final and conclusive on all officers of the

Government, except when procured by means of

fraud.

Any award, compromise, or settlement in an amount

of $2,500 or less made pursuant to this section shall

be paid by the head of the Federal agency concerned

XIV

SS Oe TRE mn a cg eran a Peg

out of appropriations available to that agency.

Payment of any award, compromise, or settlement in

an amount in excess of $2,500 made pursuant to this

section or made by the Attorney General in any

amount pursuant to section 2677 of this title shall be

paid in a manner similar to judgments and

compromises in like causes and appropriations or

funds available for the payment of such judgments and

compromises are hereby made available for the

payment of awards, compromises, or settlements

under this chapter.

The acceptance by the claimant of any such award,

compromise, or settlement shall be final and

conclusive on the claimant, and shall constitute a

complete release of any claim against the United

States and against the employee of the government

whose act or omission gave rise to the claim, by

reason of the same subject matter.

28 USC §2674:

The United States shall be liable, respecting the

provisions of this title relating to tort claims, in the

same manner and to the same extent as a private

individual under like circumstances, but shall not be

liable for interest prior to judgment or for punitive

damages.

If, however, in any case wherein death was caused, the

law of the place where the act or omission complained

of occurred provides, or has been construed to

provide, for damages only punitive in nature, the

United States shall be liable for actual or

compensatory damages, measured by the pecuniary

injuries resulting from such death to the persons

respectively, for whose benefit the action was brought,

in lieu thereof.

With respect to any claim under this chapter, the

United States shall be entitled to assert any defense

based upon judicial or legislative immunity which

otherwise would have been available to the employee

XV

:

of the United States whose act or omission gave rise

to the claim, as well as any other defenses to which the

United States is entitled.

With respect to any claim to which this section

applies, the Tennessee Valley Authority shall be

entitled to assert any defense which otherwise would

have been available to the employee based upon

judicial or legislative immunity, which otherwise

would have been available to the employee of the

Tennessee Valley Authority whose act or omission

gave rise to the claim as well as any other defenses to

which the Tennessee Valley Authority is entitled under

this chapter.

28 USC §2679%(a):

The authority of any federal agency to sue and be sued

in its own name shall not be construed to authorize

Suits against such federal agency on claims which are

cognizable under section 1346(b) of this title, and the

remedies provided by this title in such cases shall be

exclusive.

28 USC §2680:

The provisions of this chapter and section 1346(b) of

this title shall not apply to—

(a) Any 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 emplovee of the Government,

whether or not the discretion involved be abused.

42 USC $1997e(a):

(a) No action shall be brought with respect to prison

conditions under section 1983 of this title, or any other

Federal law, by a prisoner confined in any jail, prison,

or other correctional facility until such administrative

XVI

remedies as are available are exhausted.

Kansas Stat. Ann. 75-6104(e):

A governmental entity or an employee acting within

the scope of the employee's employment shall not be

liable for damages resulting from:

(e) any claim based upon the exercise or performance

or the failure to exercise or perform a discretionary

function or duty on the part of a governmental entity

or employee, whether or not the discretion is abused

and regardless of the level of discretion involved, . .

STATEMENT OF THE CASE

Nature of the Case Generally

William Cohen's pro se complaint in the United States

District Court for the Southern District of Georgia, Brunswick

Division, was in terms predicated on, and invoked the jurisdiction of

the District Court pursuant to, the Federal Tort Claims Act, 28 USC

§1346(b)(1) and §§2671 et seg., based upon negligence and

involving personal injuries., and also sounded directly under the

Constitution. On February 8, 1992, William Cohen, a federal

prisoner serving the final days of an 18 month sentence for copyright

violations, was severely injured when attacked by another inmate

incarcerated in the same part of the Jesup Federal Correctional

Institution (“Jesup FCI’), the Community Corrections Center

(“CCC”), a portion of the FCI carrying the lowest security

classification within the federal correctional system, security [or

custody] level “one out”. Cohen's theory of liability was that the

Federal Bureau of Prisons (“BOP”) was negligent, and violated its

statutory obligation under 18 USC §4042 to protect him (or

correlatively his statutory right to be protected) during his

incarceration.

Cohen asserted in his complaint, and proved at trial, that the

government was negligent in assigning the perpetrator of the assault,

Humberto Garcia, who had a long history of violence inter alia, to an

FCI rated to house prisoners classified at “security level one out”

(“SL-1 Out”). The government initially sought summary judgment

under FRCivP 56 for lack of proof of negligence, but in the face of

the overwhelming evidence of negligence at trial practically

abandoned any pretense of having acted with due care (although

keeping up appearances with pro forma argument to the contrary),

and rested mainly on its contention that the all aspects of the prisoner

classification process are within the FTCA's “discretionary function”

exception, 28 USC §2680(a).

Two motions for dismissal, FRCivP 12, based on the

discretionary function exception or some variation on the theme,

were rejected by the trial judge, and the factual underpinnings of the

defense were again found wanting after trial to the bench. The

government was found liable by the tnal judge as tner of fact, with

no comparative negligence on the part of Mr. Cohen. Mr. Cohen was

awarded $250,000 for pain and suffering. In its written findings, the

he. tee

tnal court pinned its monetary award on the physical pain and

suffering, making no award for medical care and expenses or loss of

consortium. The trial court also refused to award any economic

damages for loss of past and future income to Mr. Cohen, a 62 year

old in excellent health pnor to the injury, and with a life expectancy,

as found by the trial court, of 17 years, most or all of which, based on

family history, might have been spent in gainful employment but for

his injuries. Those damages issues were the subject of the cross-

appeal by plaintiff Cohen, which were never adjudicated by the

Eleventh Circuit.

Summary of Proofs and Findings

Following his conviction for copyright act violations,

William Cohen, a 60 year old businessman from Flint, Michigan,

was sentenced to 18 months incarceration by the Federal District

Court for the Eastern District of Michigan, which sentence he began

serving in February, 1991 following affirmance of his conviction by

the Sixth Circuit’ (in a 2-1 decision). Based on Mr. Cohen's lack of

any prior criminal record, his age, his slight physical stature, the

nature of his crime, and the length of his sentence, Mr. Cohen was

assigned by the Attorney General to the Community Corrections

Center (“CCC”), a facility within the larger Jesup Federal

Correctional Institution. The CCC at Jesup FCI is a “Community

custody level one out” institution, the lowest classification for

security purposes within the federal correctional system, designed for

the offenders presenting the least threat to the public and to one

another.

The CCC at Jesup is a housing unit, consisting of two

dormitories with a combined capacity for 500 prisoners quartered in

cubicles not wholly dissimilar from some modern office

arrangements (of the type often seen in the Dilbert® comic strip)’,

and featunng cafeteria style dining. These twin dormitories are

managed and supervised by only two personnel working for the

‘United States v Cohen, 946 F2d 430 (CA 6, 1991)

“37 X 10’, bunk bed, wardrobe, desk, an opening with no door, a cork board for

photos and notes

Be DAG Ci ‘

ioe Da NE, te aa kee i eh tiy

Bureau of Prisons’, reflecting the minimal oversight that

“Community custody level one out” prisoners require. Prisoners are

generally released during the day for work assignments within other

units of Jesup or in nearby municipalities. During free time, prisoners

may watch television in the community activities rooms provided for

that purpose.

During Mr. Cohen's incarceration at Jesup, Humberto

Garcia, a resident alien* originally from Cuba, was also assigned to

the CCC to serve a 5 to 40 year sentence® for possession with intent

to distribute more than 500 grams of cocaine (21 USC §841(a); 18

USC §2)—the actual amount exceeded 3 kilograms with 92% punty,

equivalent to 2776 grams of 100% pure cocaine (6+ pounds)”. Before

Garcia eventually pled guilty to that offense, the US Attorney for the

Southern District of Florida sought to revoke Garcia's bond on an

emergency basis for having threatened the government's confidential

informant’.

Mr. Garcia had a long criminal record beginning at age 18,

with convictions for carrying a cencealed firearm (2 counts),

possession of cocaine, and resisting arrest, and numerous arrests for

violent offenses including attempted murder, aggravated assault

*So stipulated by the Government prior to tnal

*At trial, there was some dispute over Mr. Garcia's citizenship status. One unverified

document indicated Garcia may have acquired U.S. citizenship when his mother was

naturalized, but the Presentence Report (Appendix 9, p. 11, §#40)—the only

document the accuracy of which was a product of a formal judicial hearing process in

which Garcia actually had both motive and opportunity to correct any errors at

sentencing, United States v Kelly, 687 F2d 1217, 1220 (CA 8, 1982) (yet the

Presentence Report (Appendix 9, p. 17, Addendum), shows that Garcia, through

counsel, objected only to a historical detail as to how he purchased his pnvate motor

vehicle}—not only asserted flatly that Garcia is an alien, but listed his INS alien

registration number (A 1643153)

‘So indicated on all the sentencing records and by stipulation, but at tnal it was

claimed that such indeterminate sentences are no longer meted out under the federal

sentencing guidelines, and that Garcia was actually sentenced to 63 months.

*Presentence Report (Appendix 9, pp. 2, € #1)

'Presentence Report (Appendix 9, pp. 34, $#6)

(multiple occasions), and aggravated assault on a police officer, as

well as burglary, carrying a concealed weapon, dealing in stolen

property, obstruction of justice, obstruction by false information,

possession of a machine gun, grand larceny, possession of a firearm

with altered serial number, possession of cocaine, possession of

qualuudes, possession of marijuana, and possession of narcotic

equipment, and several for resisting arrest®. The presentence report

on Garcia indicated he had assaulted one of his sisters (for which she

filed no charges) shortly before his arrest on the cocaine charge”.

Immediately after being arrested for the firearm violation, in the

presence of the arresting officer, Garcia threatened to kill one of the

witnesses by hiring a Colombian assassin’®. Garcia, at the time of his

assignment to Jesup FCI, was a relatively “virile” (in the words of the

District Court's Judge [Appendix 1, p. 3, Finding #15]) young man

(D.0.B. October 2, 1958) of solid physique, reflecting his training as

a weightlifter. He dropped out of high school during the 10th grade,

at which time he had a “D” scholastic average’. His record of

violence was, according to the findings of the District Court, ignored

by the BOP, in violation of the administrative prisoner classification

guidelines (Appendix 1, p. 6, Findings ##32-33), in classifying him

to Community custody level one out status. (Appendix 1, p. 5,

Findings ##25-29). The District Court further found, expressly, that

“Garcia's record demonstrates that he was a violent person . . .

(Appendix 1, p. 5, Finding #27) who, had the BOP followed its own

guidelines, would have been assigned to a higher security level

institution. (Appendix 1, p. 6, Finding #32).

On February 8, 1992, just four months before Mr. Cohen

was scheduled to be released, while some prisoners were watching

television, Garcia switched the channel. Mr. Cohen noted that the

rules of the institution required a certain channel to be selected

during that time frame, and returned the channel selector to that

*Presentence Report (Appendix 9, pp. 6-10, #§##1 9-38)

*Presentence Report (Appendix 9, p. 11, $441)

’Presentence Report (Appendix 9, pp. 6-7, $#20)

''Presentence Report (Appendix 9, p. 12, #45.

deme pe ne ATG

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ck Mig Ei)

position. Nothing was said further by Mr. Garcia. (Appendix |, p. 2,

Findings ##5-7). The other prisoners one by one drifted out of the

room and back to their cubicles. (Appendix 1, p. 2, Finding #8).

Without warning, Garcia picked up a metal folding chair and

attacked Mr. Cohen from behind, smashing him over the head

repeatedly. (Mr. Cohen has no recollection of the attack; Mr. Garcia

not surprisingly denied responsibility. However, the circumstantial

evidence was so overwhelming’ that, by the time of trial, the

government effectively conceded the manner in which Mr. Cohen

came to be so grievously injured)'*. (Appendix 1, Finding #9).

Mr. Cohen was found alone, lying on the floor of the

community activities room, unconscious and bleeding. (Appendix |,

Finding #10). After being rushed to a hospital, Mr. Cohen underwent

neurological surgery to reduce a subdural hematoma, which was

secondary to a basilar skull fracture bilaterally. (Appendix 1,

Findings ##12-13). Surgery was followed by three weeks of

hospitalization (Appendix 1, Finding #13) and then weeks of

physical therapy and recuperation. Although Mr. Cohen has regained

imperfect ambulation and most of his former intellectual function

and long term memory, he suffers from permanent short term

memory problems and has completely lost his sense of taste and

smell. Mr. Cohen cannot mentally concentrate, suffers from vertigo

and severe headaches, and is totally and permanently disabled

(Appendix 1, Finding #14).

"Neither the Tooth Fairy nor the Easter Bunny came forward to acknowledge

culpability in the assault, and it seemed improbable that Mr. Cohen had beaten

himself over the back of the head with a chair, so the district judge had no trouble

deducing that Garcia, the only other person known to be present, must be the

perpetrator. The Bureau of Prisons, however, discreditably more intent on covering

its administrative posterior and protecting the careers of civil servants than in

sanctioning Mr. Garcia for his thuggery, could not bring itself to charge Mr. Garcia

either criminally with assault with a deadly weapon or administratively with

misconduct, asserting “lack of evidence.” Like most attempted govermment

coverups, this one was, at least until the Eleventh Circuit's decision, ineflicacious,

the district court was certainly not fooled

‘>The facts in this paragraph were the subject of pretrial admissions or a stipulation at

the commencement of trial, with the inference that Garcia perpetrated the actual

assault left formalistically to the trier of fact, who duly reached that conclusion

(Trial transcript pp. 7-16)

After the prerequisite filing of a timely administrative claim

which was rejected in due course, Mr. Cohen, proceeding in pro per,

filed suit against the United States under the Federal Tort Claims Act

(FTCA), 28 USC §§1346(b) and 2671 et seq. and the Constitution of

the United States, asserting that the government was negligent in

assigning a prisoner with Humberto Garcia's personal history to a

“Community custody level one out” FCI, in violation of the BOP's

statutory duty to both safekeep prisoners under its jurisdiction and to

protect those prisoners during their incarceration. 18 USC §4042;

United States v Muniz, 374 US 150, 164-165 n. 26, 83 S Ct 1850,

10 L Ed 2d 805 (1963). The government filed two motions for

dismissal based on the “discretionary function exception” to liability

under the FTCA, 28 USC §2680(a), each of which was denied'*.

Following a bench trial before Hon. Anthony Alaimo in the

United States District Court for the Southern District of Georgia,

Brunswick Division, the government was found to be negligent and

Mr. Cohen was awarded $250,000 in non-economic damages (pain

and suffering), but zero dollars in economic damages. Judge Alaimo

specifically found that the civil servant who classified Mr. Garcia as

“Community custody level one out” had no discretion of the type

‘‘One reason, among others developed infra, why the discretionary function

exception is inapposite is that the cited statute obviously creates a mandatory

protective obligation on the part of the Government, acting through the Attomey

General and Bureau of Prisons, which duty is intended to be facilitated through the

various Program Statements which establish in detail the prisoner classification

process. The District Court found that these administrative norms were not followed

in assigning Humberto Garcia to the CCC at Jesup FCI Such violations of

administrative regulations preclude a finding that the government's actions are

sheltered by the discretionary function exception. United States v Gaubert, 499 US

315, 322, 111 S Ct 1267, 1276, 113 L Ed 2d 335 (1991); Phillips v United States, 956

F2d 1071, 1076 (CA 11, 1992), Kennewick Irrigation Dist v United States, 880 F2d

1018, 1026-1027 (CA 9, 1989), US Fidelity & Guaranty Co v United States, 837 F2d

116, 120 (CA 3, 1988), cert den 487 US 1235, 108 S Ct 2902, 101 L Ed 2d 935.

Thus, when as to Humberto Garcia the designator failed to factor into the

classification decision elements which the administrative regulations required be

taken into account, and correlatively gave great or preclusive weight to elements to

which the regulations assigned little or no weight, she stood the regulations on their

head and, by violating them, removed the injurious effects of her misconduct from

the protective ambit of the discretionary function cocoon, even assuming arguendo

the classification process otherwise constitutes a discretionary function

er Bt

relevant to immunizing the government under the “discretionary

function” exception of the FTCA, and further concluded that this

bureaucrat had in any event failed to follow the requisite

administrative protocols by classifying Mr. Garcia without proper

attention to the relevant historical factors and without obtaining

pertinent factual information concerning Mr. Garcia (or by ignoring

the relevant information).

On direct appeal, however, the Eleventh Circuit reversed,

asserting that the District Court’s finding of fact as to the failure of

the BOP to follow its own guidelines for classifying prisoners was

clearly erroneous, and that the discretionary function exception

applies. In so holding, the Eleventh Circuit rejected prior contrary

decisions of the former Fifth Circuit and of other Circuits as well.

The Eleventh Circuit declined to address in any way Cohen’s

alternative argument that the judgment of the District Court could

and should be upheld on the basis of a direct constitutional claim (or

the matter remanded to the District Court for any necessary further

findings as to such issues) which is well within the scope of the

pleadings.

ARGUMENT

1. A statutory right of action for negligence based on a federal

enactment--18 USC §4042-which the United States Supreme

Court recognized in United States v Muniz, 374 US 150; 83 S

Ct 1850; 10 L Ed 2d 805 (1963) on behalf of a federal prisoner

assaulted by another prisoner improperly classified to the

same correctional institution and security level is NOT negated

so as to leave federal prisoners with no legally enforceable

right of protection by the Bureau of Prisons against bodily

harm while in federal custody-by the discretionary function

exception to the Federal Tort Claims Act, as correctly

recognized by decisions in other circuits, Brown v United

States, 486 F2d 284, 288 (CA 8, 1973); Cline v Herman, 601 F2d

374, 375-376 (CA 8, 1979); Flechsig v United States, 991 F2d

300, 303-304 (CA 6, 1993) contradicting the Eleventh Circuit

decision, and, independently, in accordance with the principle

established in FDIC v Meyer, 510 US 471, 114 S Ct 996, 127 L

Ed 2d 308 (1994), that the discretionary function exception has

no application to rights based on federal law.

A. The Eleventh Circuit’s decision misapplies the

discretionary function exception.

The Eleventh Circuit reasoned that “our conclusion in this

[case] is mandated by our holding in Ochran v United States, 117

F3d 495 (CA 11, 1997)"~a case not cited by either party. Ochran,

however, is inapposite-which explains why neither party relied

upon it-but that decision actually lends support, by virtue of its

distinguishing salient features, to plaintiff Cohen’s position, if

correctly understood.

In Ochran, suit was brought by a federal witness, who

charged that an Assistant US Attorney failed to protect her from a

suspected offender who threatened her life. The present Cohen

Eleventh Circuit opined that the statute at issue in Ochran (18

USC §3521) is similar to 18 USC §4042, the principal statutory

basis for Cohen's claim against the BOP. To the contrary,

however, the statute on which the plaintiff in Ochran relied both

expressly imposes only discretionary duties on the Attorney

General'*, and expressly precludes judicial recognition of any

actionable duty’®.

In contrast, 18 USC §4042 uses mandatory, not permissive

language (“shall”, not “may”), and lacks any directory proviso akin

to 18 USC §3521(a)(3)’s express declaration that the cause of

action normally implied by the principles of Cort v Ash, 422 US

66, 78, 95 § Ct 2080, 45 L Ed 2d 26 (1975) not be recognized.

Indeed, not only was it error to rely on Ochran, but the

Sixth Circuit has correctly recognized that, irrespective of the

applicability of the FTCA, since 18 USC §4042 establishes a duty

of protection running from the BOP to a prisoner in its custody,

United States v Muniz, 374 US 150; 83 S Ct 1850; 10 L Ed 2d 805

(1963), the discretionary function exception is inapposite to a

federal tort action, based on the principle established in FDIC v

Meyer, 510 US 471, 114 S Ct 996, 127 L Ed 2d 308 (1994). The

Sixth Circuit reasoned:

“Thus, Meyer prescribed that, because Congress

merely decreed in 28 USC §2679(a) that the

FTCA will supply the sole remedy for state law

tort claims against the United States generated by

wrongs committed by such agencies, the FTCA

does not preclude the assertion of tort lawsuits

supported by substantive federal law against

federal government instrumentalities which have

been congressionally invested with the power to

sue and be sued” in their own names.”

‘SE g.. “The Attomey General may provide for the relocation and other protection

of a witness. . .” 18 USC §3521(aX1); “. . . the Attorney General shall take such

action as the Attorney General determines to be necessary to protect the person

_ The Attorney General may, by regulation . . .” 18 USC §3521(bX1), “. . . the

Attorney General may provide temporary protection to such person . . .” 18 USC

§3521(e); “The Attomey General may terminate the protection provided under

this chapter . . .” 18 USC §3521(f)

‘©The United States and its officers and employees shall not be subject to any

civil liability on account of any decision to provide or not to provide protection

under this chapter.”). 18 USC §3521(3).

'’ The Department of Justice, an executive department of the United States, 28

USC §501, headed by the Attorney General, 28 USC §503, who in tum is also the

a

Federal Express Corp v US Postal Service, 151 F3d 536 (1998).

In accord with this principle as applied in the context of

the liability of a correctional institution for failure to safekeep

prisoners by exercising reasonable care to protect them from

assaults by other prisoners is the decision in CJW by and through

LW v State, 253 Kan 1, 8-15; 853 P2d 4, 7-14 (1993). There, the

Kansas Supreme Court rejected governmental reliance on the

discretionary function exception to the Kansas Tort Claims Act,

identical in terms to the Federal Tort Claims Act's discretionary

function exception, Kansas Stat. Ann. §75-6104(e). The Kansas

court reasoned identically, viz., that where a duty is imposed by

law,'* there is no discretion to omit to fulfill that duty, and thus the

discretionary function exception does not shield the government

from liability in situations, where, by virtue of either prior specific

threats or the offending prisoner’s history of violence and

predisposition thereto, the assault is foreseeable, all of which that

court held to be a question of fact, not of law. Here, the District

Court found as fact—in findings unchallenged by the Government

on appeal—that the BOP failed to exercise due care in classifying

administrative head of the BOP, 18 USC §4041, similarly, by virtue of its

inherent function of both suing in the name of the United States and defending

suits against the United States, the AG/DoJ/BOP has(have) the power to sue and

be sued. As the Court correctly reasoned in United States v Rock Island

Centennial Bridge Comm'n, 230 F Supp 654, 655 (SD Ill, ND, 1964):

“I hold that the court has junsdiction of the cause. If the

enabling act adopted by Congress imposes restrictions upon

the purposes for which bridge tolls may be charged, either

one or two results must emanate from the fact that the act

itself makes no express provision for enforcement of its

provisions. Either the act is not subject to enforcement, or the

Attomey General as chief counsel for the United States, has

authonty to file a suit in the name of the United States to

enforce the statute. To me the first alternative is untenable

Congress had the power to legislate. There is no contention

here that that power was lacking, and it is inconceivable to me

that the exercise of that power could be flouted without any

hope of redress.”

'* In that case, the duty was imposed by the common law, Restatement of Torts

2d §§319-320, which principles are equivalent to 28 USC §4042.

- 10-

Humberto Garcia, and that this negligence proximately caused

William Cohen’s injuries and damages.

Yet the Eleventh Circuit opinion effectively nullifies 18

USC §4042, since a statutory right of prisoners to be safely kept is

meaningless if there is no means of enforcement. To the contrary,

when the Attorney General violates a statute, the AG (in the

juridical persona of the BOP) is liable to suit unless some

immunity external to the FTCA applies. Federal Express Corp v

US Postal Service, supra; Halperin v Kissinger, 196 US App DC

285, 606 F2d 1192 (1979), affirmed in part, cert dismissed in part

452 US 713, 101 S Ct 3132, 69 L Ed 2d 367. Here, the Attorney

General, according to the findings of the tner of fact, violated the

duty imposed by 18 USC §4042 to safely keep prisoner Cohen.

This violation of a federal statute is actionable under FDIC v

Meyer, supra, without regard to the discretionary function

exception, which applies only to rights based on state law.

Accordingly, the Eleventh Circuit opinion is in conflict

with the Supreme Court’s decision in FDIC v Meyer, supra and

additionally creates an inter-circuit conflict with Federal Express v

US Postal Service, supra.

B. The Eleventh Circuit opinion misconstrues and misapplies

18 USC §3621 so as to negate 18 USC 4042.

In deeming that 18 USC §4042 imposes no actionable

duty, the Eleventh Circuit asserts that any duty of safekeeping of

prisoners which might arise is vitiated by 18 USC §3621, which

gives the BOP complete discretion to designate “any available

penal or correctional facility that meets minimum standards of

health and habitability” as the place of a prisoner's imprisonment

Respectfully, this reading of two statutes which are clearly in pari

materia is untenable. As the Sixth Circuit said in Federal Express

v US Postal Service, supra, “It would be strange if Congress had

resolved to give with one hand and then take away with the other.”

Accord: Brunette Machine Works v Kockum Indus, 406 US 706,

710 n. 8; 92 S Ct 1936; 32 L Ed 2d 428 (1972). 18 USC $4042

establishes a duty of safekeeping, while 18 USC §3621 allows the

use of any available correctional facility consistent with the duty of

safekeeping separately established. Things Remembered, Inc v

Petrarca, 516 US 124; 116 S Ct 494; 133 L Ed 2d 461 (1995)

ih

quoting Thermtron Products, Inc v Hermansdorfer, 423 US 336,

345-346, 96 S Ct 584; 46 L Ed 2d 542 (1976).

18 USC §3621 principally addresses matters of geography,

Persico v Gunnell, 560 F Supp 1128 (SD NY, 1983); federal

prisoners thus cannot claim any right to be incarcerated near their

homes and families. Construing 18 USC §3621 as negating the

duty of safekeeping created by 18 USC §4042 violates cardinal

rules of statutory construction. Connecticut Nat Bank v Germain,

503 US 249, 253, 112 S Ct 1146; 117 L Ed 2d 391 (1992); United

States v United Continental Tuna Corp, 425 US 164, 168; 96 S Ct

1319, 47 L Ed 2d 653 (1976). The Eleventh Circuit opinion

effectively holds that by virtue of 18 USC §3621 Congress took

away the protections established in 18 USC §4042, which flouts

still another principle of statutory construction. Brunette Machine

Works v Kockum Indus, supra, 406 US at 710 n. 8. Note that

Garcia could have been geographically assigned to the same

location but at a different security level (FCI Jesup borders a

walled federal correctional enclave featuring Security Levels |-

“IN” through 4), so there was no practical impediment to fulfilling

both statutory mandates.

Moreover, the very existence of such statutory rights

implies the existence of all necessary and appropriate remedies for

their vindication. Sullivan v Little Hunting Park, Inc, 396 US 229,

239: 90 S Ct 229, 24 L Ed 2d 386 (1969); Texas & Pac R Co v

Rigsby, 241 US 33, 39, 36 S Ct 482; 60 L Ed 874 (1916) (“A

disregard of the command of the statute is a wrongful act, and

where it results in damage to one of the class for whose especial

benefit the statute was enacted, the night to recover the damages

from the party in default is implied . . .”). It was on just this basis

that Muniz recognized 18 USC §4042 as providing the basis for a

federal cause of action. The Eleventh Circuit opinion has imported

sovereign immunity back into a statute designed to limit it, /ndian

Towing Co v United States, 350 US 61, 69; 76 § Ct 122; 100 L Ed

61 (1955), and also purported to transmogrify the discretion

accorded clerical personnel in classifying prisoners into the type of

social, economic, or regulatory policy for which the discretionary

function was intended and to which it is limited in application,

United States v Gaubert, 499 US 315, 325 n. 7; 111 S Ct 1267;

113 L Ed 2d 335 (1991)

its

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C. The Eleventh Circuit opinion misunderstands Calderon v

United States, 123 F3d 947 (CA 7, 1997).

Calderon, which the Eleventh Circuit also found

persuasive, is readil, distinguishable from the present case In

Calderon, no claim was made that the offending prisoner should

not have been classified or placed at the same institution with the

plaintiff (Calderon); rather, the claim there was that the BOP

neglected to protect Calderon from foreseeable attack by fellow

inmate Perez. The Seventh Circuit not only found no statute

mandating such protection, but an administrative regulation!9

expressly declaring that it would be up to BOP staff discretion

whether and what steps, if any, to take in such situations.

In the present case, in contrast, there is a statute mandating

that the BOP classify inmates appropriately, and no regulation

suggesting discretion to be negligent in doing so-as repeatedly

noted by both plaintiff Cohen and the United States, the Program

Statement does not have the status of a duly adopted and

promulgated regulation, but is merely a description of how the

BOP conducts its internal operations”’. Elevating the Program

Statement to the level of a formal regulation which defeases

plaintiff Cohen of his statutory right to be kept safely while in the

custody of the BOP both exceeds any justification to be found in

Calderon and is inconsistent with the principles of Cort v Ash,

Federal Express Corp v US Postal Service, and FDIC v Meyer,

supra

D. The Eleventh Circuit opinion ignores cited precedent from

other circuits and creates an inter-circuit split.

The Eleventh Circuit opinion completely ignores three

cases duly cited by plaintiff Cohen and never distinguished or even

addressed by the government, Brown v United States, 486 F2d

'? In contrast to the Program Statement, which has no such formal legal status

© The Program Statement, so much the focus of attention by the Government and

of decision by the Eleventh Circuit, is merely a description of the BOP’s intemal

operating procedures, and has no legal status as a regulation Flechsig v United

States, supra, 991 F2d at 304. A fortion, it can hardly insulate the Government from

civil liability for breaching a statutory duty recognized by this Court in Muniz, supra

-13-

284, 288 (CA 8, 1973), Jones v United States, 91 F3d 623, 624-

625 (CA 3, 1996), and Flechsig v United States, 991 F2d 300, 303-

304 (CA 6, 1993), as well as Cline v Herman, 601 F2d 374, 375-

376 (CA 8, 1979). In Brown and Cline, the Eighth Circuit

recognized the federal government is answerable in damages under

the FTCA for the simple negligence of BOP personnel in failing to

protect federal prisoners. In Jones, the Third Circuit recognized

that 18 USC §4042 establishes an actionable duty of care which

that Court deemed “unambiguous,” while in Flechsig the Sixth

Circuit recognized that 18 USC §4042 sets forth a legal duty on

which a viable negligence action may be predicated (although

holding that the prisoner in that case failed to come forward with

any evidence of negligence). Brown, exactly like the case at bar,

involved a claim that the BOP was negligent in assigning the

offending prisoner to the same institution as the plaintiff prisoner,

neither Ca/deron nor any other case relied upon by the Eleventh

Circuit or the government involves such a theory of liability. The

Eleventh Circuit opinion thus creates an inter-circuit split.

Highlighting this inter-Circuit split of authority, F/echsig

was followed and applied in a factual context similar to that of the

case at bar even afier publication of the Eleventh’s Circuit's

present Cohen decision. Jackson v United States, 24 F Supp 2d

823, 830-831 (WD Tenn, 1998), the district court there rejecting

application of the discretionary function exception to the actions of

lower level BOP personnel. Thus, federal prisoners in the States

comprising the Third, Fifth, Sixth, and Eighth Circuits are owed a

duty of reasonable care by the BOP, but federal prisoners in the

territory assigned to the Eleventh Circuit are unprotected except by

the Eighth Amendment. Such an inter-circuit Cisparity in

enforceable rights and protections under a single statute violates

the equal protection component of the due process clause of the

Fifth Amendment. Bolling v Sharpe, 347 US 497, 499, 74 S Ct

693, 98 L Ed 884 (1954).

E. The District Court’s finding of fact-that the officials who

classified and assigned Humberto Garcia to Jesup FCI did not

exercise policy judgment-was never challenged by the

government and was therefore binding on the Eleventh

Circuit.

Jan,

For the discretionary function exception to be invoked by

the government, the officials who made a decision which 1s the

subject of suit must have exercised policy judgment. Whether an

official decision represents a policy judgment of the type protected

by the discretionary function exception is a question of fact,

Rerkovitz v United States, 486 US 531, 545; 108 S Ct 1954; 100 L

Ed 2d 531 (1988). The government on appeal never argued that the

District Court’s finding of fact, after trial, that BOP designators—

the federal employees who actually classified Humberto Garcia to

security level one-out status—did not exercise policy judgment, is

clearly erroneous, and this unchallenged finding should have

controlled the matter on appeal”'. Jackson v United States, supra,

24 F Supp 2d at 831.

That no policy judgment was involved is also readily seen

even if the issue were a matter of law. The Policy Statement is not

an administrative regulation, but merely a statement of BOP

internal operating procedure, and it does not have the force of law.

Flechsig v United States, supra, 991 F2d at 304, Chrysler Corp v

Brown. 441 US 281, 301; 99 S Ct 1705; 60 L Ed 2d 208 (1979),

Dorr v United States, 195 US 138, 146; 24 S Ct 808; 49 L Ed 2d

128 (1904). The District Court properly determined that the BOP

designators at most exercise discretion of the type found in driving

an automobile on an official mission, as to which this Honorable

Court has already expressed itself:

“Although driving requires the constant exercise

of discretion, the official's decisions in exercising

that discretion can hardly be said to be grounded

in regulatory policy.”

United States v Gaubert, supra, 499 US at 325 n. 7.

2. Plaintiff is entitled to recover damages, without regard to

the FTCA, based on a theory of constitutional tort.

*IThe designator’s testimony, which was that the only concerns within her

bailiwick were “whether or not there was a judicial recommendation, if there was

a detainer involved, the severity of the current offense, if there was violence, the

length of sentence. Those are the policy issues I would consider,” supports this

finding.

|e

A. Because Plaintiffs pleadings were filed in propria

persona and never amended, they must be broadly construed

to plead any cause of action cognizable on the facts.

Plaintiff has consistently maintained that his pleadings,

which were filed in propria persona and which therefore, however

“inartfully pleaded,” are entitled to be broadly construed, Estelle v

Gamble, 429 US 97, 106; 97 S Ct 285, 50 L Ed 2d 251 (1976),

Haines v Kerner, 404 US 519, 520-521, 92 S Ct 594; 30 L Ed 2d

652 (1972), embrace not only an FTCA theory but a constitutional

tort theory. The duty which the District Court found the

government negligently breached as to plaintiff Cohen is one

owed, if not by virtue of statute, then directly under the

Constitution. Owens v Haas, 601 F2d 1242, 1249 (CA 2, 1979),

cert den 444 US 980, 100 S Ct 483; 62 L Ed 2d 407. The FTCA

remedy is not exclusive for federal constitutional torts. Carlson v

Green, 446 US 14, 19; 100 S Ct 1468; 64 L Ed 2d 15 (1980).

Therefore, the judgment should have been affirmed on this

alternate and independent ground (which was duly noted in

plaintiff's brief to the Eleventh Circuit, pp. 19 and 26, and at oral

argument, and never challenged by the government), or at least

remanded to the district court for further findings. Farmer v

Brennan, 511 US 825. 1148 Ct 1970; 128 L Ed 2d 811 (1994).

B. The Eleventh Circuit decision overlooks unchallenged

evidence of violence in asserting that the District Court clearly

erred in finding that the BOP failed to follow the Policy

Statement,

The Eleventh Circuit opinion holds that the District Court

clearly erred in its fact finding that the BOP failed to follow the

Policy Statement in concluding that the designator omitted to enter

a history of violence on the BOP-14. In so holding, the Eleventh

Circuit ignored unchallenged evidence, in the Presentence Report,

showing that Humberto Garcia, aside from his multiple

convictions, had threatened to hire an assassin to kill a witness and

had assaulted and battered his sister between the date of conviction

and sentencing of his cocaine conviction. PS 5100.2, Sec. 9, p. 16,

item #12, states

12. History of Violence . History of violence

includes the individual's entire background of

@ 16 -

|

3

a

criminal violence, excluding current offense

defined according to the degree of the seriousness

of the act which resulted in a conviction or a

finding of guilt

Garcia had full due process with respect to the accuracy of the

information in his Presentence Report, so this information,

although not relating to convictions, did reflect findings of guilt”.

The District Court therefore had this additional record support for

its factfindings, which are thus not clearly erroneous

C. Plaintiff Cohen is in any event entitled to a remand on the

issue of Humberto Garcia's citizenship status.

The Eleventh Circuit’s opinion in this case of Cohen v

United States, 151 F3d 1338 (CA 11, 1998) concludes with the

assertion that Humberto Garcia's alienage was left indeterminate

by the District Court, but that this omission is immaterial, on the

theory that “the Program Statement provides that the BOP's

regional director retains the discretion to assign an alien to the

lowest security level.” (Appendix 5, p. 13) That is not true

The Program Statement provides that a deportable alien

must be assigned no lower than Security Level 2, but may, with the

approval of the Regional Director, be placed in SL-1. The Eleventh

Circuit overlooked the key distinction between “SL-1” and “SL-1

Out”. Garcia, notwithstanding his status as a deportable alien,

could have been assigned to an SL-1 institution, but nothing in the

Program Statement suggests the possibility of an “SL-1 Out”

placement like FCI Jesup. Thus, Garcia could not have been placed

in the same institution as William Cohen, and his improper

assignment to FCI Jesup at “SL-1 Out” by the BOP was therefore

both wrongful and a proximate cause of Cohen’s injunes. Cohen,

at a minimum, is entitled to a remand to the District Court for

resolution of the factual issue of whether Garcia was an alien or a

citizen

*? As any person being sentenced, Garcia had both motive and opportunity to

correct any errors in his Presentence Report during allocution, so the report

should carry a presumption of accuracy as to such matters. United States v Kelly,

supra

os

CONCLUSION

Plaintiff-Appellant Cohen respectfully requests that this

Honorable Court grant the petition for certiorari so as to resolve

the important issues presented, specifically reserved for later

decision in United States v Muniz, supra, on which there is a clear

division of authority among the various circuits (with the decision

in the case at bar representing a minority of one) and thereafter

vacated the Eleventh Circuit’s opinion while concomitantly

reinstating the District Court's finding of liability (as against the

principal appeal of the United States), and remand the cause to the

Eleventh Circuit for adjudication of the cross-appeal previously)

filed by William Cohen

Alternatively, Plaintiff prays that this Honorable Court

exercise its error correcting power to peremptorily reverse the

decision of the Eleventh Circuit on the basis of the principles

established in FDIC v Meyer, supra as applied to Plaintiffs

statutory cause of action as previously established in Muniz, supra

Respectfullyeubmitted,

~

ga i,

Allan Falk

Attorney at Law

2010 Cimarron Dr

Okemos, MI 48864-3908

(517) 381-8449