The opinion of the court was delivered by: DENISE COTE, District Judge
On November 12, 2002, Rene Ellis ("Ellis") filed this action against
the United States (the "Government"), alleging that its negligence in
allowing unauthorized inmates to enter his prison housing unit resulted
in an assault on him, and its negligence in failing to provide him with
prompt medical attention following the attack aggravated his injuries.*fn1
Following discovery, the Government has moved to dismiss the complaint on
the ground that Ellis's assault claim is barred by an exception to the
Federal Torts Claims Act ("FTCA"), 28 U.S.C. § 2671-2680, and that the plaintiff
has failed to show that any delay in providing him with medical care
contributed to his injuries. For the reasons stated below, the motion is
All of the facts are undisputed or taken in the light most favorable to
the plaintiff.*fn2 The events described below took place on January 25,
On January 25, Ellis was an inmate at Federal Correctional Institute at
Otisville, New York ("FCI Otisville"). Although a sentenced state
prisoner, Ellis was being held at FCI Otisville "[t]o give testimony for
the [federal] government." Ellis was housed with nine other inmates in a
dormitory located in "Unit EA," a housing unit designated for pretrial
and presentence inmates, and inmates being held at FCI Otisville on a
temporary basis. On January 25, Unit EA housed about 150 inmates.
At approximately 6:30 p.m., Ellis was lying on his bed, watching other
inmates play chess, when he saw three inmates enter his dormitory. The
three inmates were not residents of Unit EA. Ellis recognized two of the
three men, said hello, and returned to watching the chess game. Soon
thereafter, Ellis was attacked from behind with a razor blade by the
inmate who was unfamiliar to him. The inmate slashed him on the right
side of his head, severing an artery. Ellis tried to defend himself, but
had difficulty seeing because of the blood in his eyes. The inmate
continued to attack Ellis, slashing him in the hands and face. Moments
later, the two other inmates joined the fight, cutting Ellis on his back.
The inmate whom Ellis did not recognize told Ellis that "this is what
happens to snitches," and pushed him onto the bed. As Ellis fell, he
struck his head on the bed frame.
During the time during which Ellis was attacked, correctional officer
Wayne Rollock ("Rollock") was on duty in Unit EA, and was stationed near
the inmate entrance to the unit. Somebody from within the housing unit
shouted that a fight was taking place, at which point Rollock stepped
into the unit and observed several inmates, including Ellis, engaged in a
fight immediately outside the third-floor dormitory room. Rollock
activated his "body alarm," a button on his radio that alerted other
prison staff to an emergency, ordered the inmates to stop fighting, and
ordered the other inmates to "lock down," or return to their cells. One
of the fighting inmates jumped or fell off the third floor to the second
floor, and ran past Rollock out the door. Rollock then saw Ellis re-enter
the third-floor dormitory room. Rollock next saw Ellis being taken out of
the dormitory by another prison official and brought to Unit EA's common
area, where Rollock identified him as one of the inmates involved in the
fight. Rollock observed that Ellis was bleeding heavily, but was able to
walk unassisted. Ellis contends that he was attacked during a "controlled movement,"
also known as a "ten-minute move." According to Ellis, "[t]hat's how
those guys that attacked me got into the unit. . . . When there's no
move, the compound is empty."
The ten-minute move in effect at the time of Ellis's attack governed
inmate movement between 4 p.m. and 9 p.m., and permitted inmates to move
from one authorized place to another within the prison without having to
carry a pass.*fn3 Ten-minute moves occurred at the bottom of each hour,
as well as during mealtimes, religious services, and other programmed
activities. At such times, the doors to the inmate entrance of a housing
unit are unlocked.
In January 2000, inmates at FCI Otisville were prohibited from entering
a housing unit to which they were not assigned. Inmates who entered an
unauthorized housing unit were subject to discipline. During a ten-minute
move, the corrections officer on duty was required to stand in or near
the doors of a housing unit in order to monitor the inmates' entry into
According to Fredrick Manifee ("Manifee"), the Warden at FCI Otisville,
both the ten-minute move policy and the restriction on inmates entering
housing units to which they were not assigned were implemented in an
exercise of his discretion as Warden. No BOP regulation or policy in effect on January 25 imposed a
"non-discretionary duty" upon him or any other prison official to
implement any particular system for the control of prisoner movement
within FCI Otisville, nor was there any regulation or policy that
required prison personnel "to prevent all prisoners from entering housing
units to which they were not assigned." Manifee instituted both policies
based on a number of considerations, "including the safety of inmates,
the ability of inmates to move about the facility, general concerns for
prison security, the effective use of limited resources, and the multiple
duties of and demands upon FCI Otisville's staff members."
Manifee charged prison personnel with the administration of the
ten-minute move system, giving them "discretion in balancing their
various duties with the tasks involved with inmate movements." Officials
were responsible for "randomly checking [inmates'] identification cards,"
using their judgment to determine how frequently to check the
identification cards, "and, more specifically, whose cards to check." If
an officer did not recognize an inmate, he could verify the inmates'
residence in several ways: by checking the inmate's identification card,
which may or may not have specified the correct housing unit; by
comparing the inmate's name against the unit's daily printed roster; by
contacting the prison's control center to determine the inmate's proper
residence; or by relying on the inmate's word. According to Manifee, the
"ultimate responsibility" for complying with the controlled-movement system "rest[ed] with the
prisoner," not the prison official.
Rollock asserts that during a ten-minute move officers checked inmates'
identification cards "at random"; the officer "was not required to check
the ID card of every inmate entering the unit." According to Rollock, he
would "regularly change the ratio of inmates" from whom he required
identification "so as to be unpredictable." Rollock would also typically
"challenge" inmates whom he did not recognize. During the ten-minute
moves, however, "there would often be as many as forty inmates waiting to
get into the unit," so he sometimes would "not be able to identify every
inmate" as somebody he knew or did not know as belonging in the unit.
Rollock declares that on January 25 he obeyed the prison policy for
supervision of the ten-minute moves. According to Rollock,
[a]t all times during my shift at Unit EA on January
25, 2000, the decisions I made about where to look,
where to be, which inmates to search, which inmates'
IDs to check . . . were based on my judgments about
how best to maximize the inmates' safety,
institutional security, inmates' compliance with
rules, and inmates' ability to get where they needed
and were authorized to go.
Rollock states that he was never informed of any statute, regulation or
FCI Otisville policy that required "me to balance all these
considerations in any particular way; it was left to my judgment and
discretion how to do so in the way I ...