CHARLES D. KELLER, Plaintiff-Appellant,
UNITED STATES OF AMERICA, Defendant-Appellee
Submitted May 23, 2014 [*].
Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. No. 2:09-cv-297 -- Jane E. Magnus-Stinson, Judge.
CHARLES D. KELLER, Plaintiff - Appellant, Pro se, Coleman, FL.
For UNITED STATES OF AMERICA, Defendant - Appellee: Jeffrey L. Hunter, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Indianapolis, IN.
Before WILLIAMS, TINDER, and HAMILTON, Circuit Judges.
Hamilton, Circuit Judge.
Plaintiff Charles D. Keller, a federal prisoner, has sued the federal government to recover damages for an assault bye another prisoner that he suffered in the United States Penitentiary in Terre Haute, Indiana. Keller appeals from a grant of summary judgment in the government's favor, so we must consider the evidence in the light most favorable to him and draw all reasonable inferences in his favor. Parrott v. United States, 536 F.3d 629, 630-31 (7th Cir. 2008). Accordingly, we must assume the facts are as stated in this opinion, but without vouching for their objective truth.
When Keller was admitted to the Terre Haute facility, he told the intake psychologist, Dr. Joseph Bleier, that he suffered from mental illness that affected his ability to function and feared that he would be attacked if he were placed in the general prison population. Dr. Bleier nevertheless placed Keller in the general population. While on his way to lunch on October 25, 2007, Keller was attacked by another inmate without provocation. The attack lasted several minutes without intervention by guards. Keller was beaten brutally and left lying unconscious in the prison yard. The attack occurred at the base of prison watchtower 7, which stands at the boundary between Units 1 and 2 of the prison yard. No prison guard saw the attack. Keller was eventually spotted lying face-down and unconscious on the ground. Examinations by the prison medical staff and a nearby hospital emergency room revealed extensive injuries to his face and head.
Keller filed suit against the United States under the Federal Tort Claims Act, see 28 U.S.C. § 2674, alleging that the attack resulted from the prison's negligence. He argues that several prison employees violated mandatory regulations and orders governing their conduct, thus allowing the attack to occur and continue. According to Keller, Dr. Bleier did not examine all of his available medical documents before deciding to release him into the general prison population, as required by applicable regulations. Keller also contends that the prison guards assigned to Tower 7, Unit 1, and Unit 2 failed to monitor their assigned areas of the yard because they were lazy or inattentive in violation of their post orders. The district court granted the government's motion for summary judgment based on the discretionary function exception to liability under the Act. See 28 U.S.C. § 2680(a). This appeal followed.
The Federal Tort Claims Act (FTCA) gives district courts exclusive jurisdiction over claims " 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 U.S.C. § 1346(b)(1); see also 28 U.S.C. § 2674. Prisoners can sue under the FTCA " to recover damages from the United States Government for personal injuries sustained during confinement in a federal prison, by reason of the negligence of a government employee." United States v. Muniz, 374 U.S. 150, 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963); see also, e.g., Coulthurst v. United States, 214 F.3d 106 (2d Cir. 2000) (allowing prisoner to pursue
FTCA claim); Bultema v. United States, 359 F.3d 379 (6th Cir. 2004) (same); Gil v. Reed, 381 F.3d 649, 659 (7th Cir. 2004) (same); Mackovich v. United States, 630 F.3d 1134 (8th Cir. 2011) (same).
This waiver of the United States' sovereign immunity is limited by several exceptions, including the discretionary function exception codified in 28 U.S.C. § 2680(a). The exception is in the second half of a provision that states in full: " 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 ...