# Petition for Writ of Certiorari — Cohen v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 1130

## Text

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.

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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)

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1303%3A1. Public record. Not legal advice.