United States District Court, S.D. New York
April 26, 2004.
RENE ELLIS, Plaintiff, -v- UNITED STATES OF AMERICA, Defendant
The opinion of the court was delivered by: DENISE COTE, District Judge
OPINION AND ORDER
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 thought best." At no time during
Rollock's shift was he aware of any "unauthorized inmate entering Unit
EA," nor did he "intentionally or knowingly permit any unauthorized person to enter Unit EA."
Summary judgment may not be granted unless the submissions of the
parties taken together "show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law." Rule 56(c), Fed.R.Civ.P. The moving party bears the
burden of demonstrating the absence of a material factual question, and
in making this determination the court must view all facts in the light
most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). When the moving party has asserted facts showing that the
non-movant's claims cannot be sustained, the opposing party must "set
forth specific facts showing that there is a genuine issue for trial,"
and cannot rest on the "mere allegations or denials" of the movant's
pleadings. Rule 56(e), Fed.R. Civ. P.; accord Burt Rigid Box. Inc. v.
Travelers Property Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2002).
The Discretionary Function Exception
Through the FTCA, the Government has waived its sovereign immunity from
suits for the negligent or wrongful acts of its employees. The exceptions
to this waiver include an exception for
[a]ny 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 employee of the Government,
whether or not the discretion involved be abused.
28 U.S.C. § 2680(a) (emphasis supplied). Two conditions must be met in
order for the discretionary function exception to bar a tort suit against
the Government: "(1) the acts alleged to be negligent must be
discretionary, in that they involve an `element of judgment or choice'
and are not compelled by statute or regulation and (2) the judgment or
choice in question must be grounded in `considerations of public policy'
or susceptible to policy analysis." Coulthurst v. United States,
214 F.3d 106
, 109 (2d Cir. 2000) (citing United States v. Gaubert,
499 U.S. 315
, 322-23 (1991), and Berkovitz v. United States, 486 U.S. 531
536-37 (1988)). If a regulation, rule, or statute "allows the employee
discretion," a "strong presumption" arises that the employee's acts "are
grounded in policy when exercising that discretion." Gaubert, 499 U.S. at
324. If a claim falls within the exception, the Court lacks subject
matter jurisdiction over the claim. Fazi v. United States, 935 F.2d 535
537 (2d Cir. 1991).
The interplay between the first and second prongs of the
Gaubert-Berkowitz test means that certain acts, although discretionary,
are not covered by the exception because they involve "negligence
unrelated to any plausible policy objective." Coulthurst, 214 F.3d at
111. For example, a Government employee who falls asleep while driving
her car on official duty is not protected by the exception because her negligent judgment in falling
asleep "cannot be said to be based on the purposes that the regulatory
regime seeks to accomplish." Gaubert, 499 U.S. at 325 n.7.*fn4
Similarly, the negligent maintenance of gym equipment is not governed by
the exception, while the decision on how frequently to inspect the
equipment is so governed. Coulthurst, 214 F.3d at 109. The exception
therefore protects those discretionary acts by a government employee when
the choice exercised is grounded in public policy.
The Government has shown that Rollock's acts are protected by the
discretionary function exception to the FTCA.*fn5 It has presented
undisputed evidence that there was no BOP policy in effect on January 25
requiring prison officials to prevent all prisoners from entering housing
units to which they were not assigned, or that required prison personnel
to take any specific steps to control entry into a housing unit. Under
the system implemented by Manifee, it was the inmates' obligation not to enter a housing unit other than their own, and corrections officers
balanced their supervision of prisoner movement with all of the other
tasks assigned to them by exercising their discretion.
Ellis conclusorily asserts that an issue of fact remains as to whether
Rollock violated a non-discretionary prison policy prohibiting inmates
from entering unauthorized housing units. Ellis does not, however, point
to any evidence in support of this conclusion. Ellis does not show that
any statute or regulation would have compelled an officer to take any
particular action to prevent inmates from entering housing units to which
they were not assigned. Ellis also fails to present any evidence that
contradicts the Government's showing that, under the ten-minute move as
implemented by Manifee, an officer was allowed to exercise discretion in
determining the frequency with which he checked the inmates'
identification cards, and in balancing his need to check identification
cards with his other duties.
Ellis contends that Rollock's deposition testimony raises a disputed
issue of fact regarding the existence of a duty to ensure that only
inmates who resided in the housing unit entered the unit. It does not.
The testimony to which the plaintiff points does not show that there was
a non-discretionary duty placed upon a corrections officer to deny an
inmate admission into a unit unless he had first verified the inmate's
right to enter. Nor does the testimony raise a question of fact regarding
any requirement to check each inmate, for instance, by looking at their identification. Read in context, Rollock's testimony reflects
the officer's understanding that it was prison policy that only inmates
who resided in a housing unit were permitted to enter and that one of his
duties was to enforce that policy.
Ellis contends that Rollock's declaration and deposition testimony
contradict each other on the issue of whether he conducted random checks
of inmates in order to ensure that no unauthorized inmate entered the
housing unit. According to Ellis, Rollock testified in his deposition
that he monitored all inmates entering the unit, while in his declaration
he stated that he conducted random checks of inmates entering the unit.
Again, the deposition testimony reflected no more than Rollock's
understanding that it was his obligation to regulate entry into the
unit, and that he did so. He was not asked in his deposition whether he
understood that he had to check each inmate before allowing entry, or how
frequently he employed a particular method, such as identification
checks, in the course of his duties. There is no inconsistency that can
fairly be used to undermine Rollock's assertion that he had the
discretion to determine how best to perform his various duties, including
his duty to regulate entry into the unit.
Accordingly, the Government has shown through undisputed evidence that
Rollock's acts on January 25 are protected by the discretionary function
exception to the FTCA. This Court thus lacks subject matter jurisdiction
over Ellis's claim that the Government's negligence contributed to the
attack on him. Medical Negligence
Ellis contends that the Government was negligent in providing him with
prompt medical care. As a result, he suffers from "severe and permanent
injuries, with attendant losses and permanent injurious effects to his
health." Ellis's claim is governed by New York's medical malpractice
law.*fn6 "[T]o establish a claim of medical malpractice under New York
law, a plaintiff must prove (1) that the defendant breached the standard
of care in the community, and (2) that the breach proximately caused the
plaintiff's injuries." Milano v. Freed, 64 F.3d 91, 95 (2d Cir. 1995)
(citation omitted). "New York law further provides that, except as to
matters within the ordinary experience and knowledge of laymen, expert
medical opinion evidence is required to make out both of these elements."
Id. (citing state court cases). See also Barnes v. Anderson, 202 F.3d 150,
159-60 (2d Cir. 1999); Boomer v. Lanigan, 00 Civ. 5540 (DLC), 2002 WL
31413804, at *9 (S.D.N.Y. Oct. 25, 2002).
By Order dated April 8, 2003, Ellis was required to produce an expert
report pursuant to Fed.R.Civ.P. 26(a)(2) by September 26, 2003. Ellis
failed to do so, and did not include such a report in his papers in
opposition to this motion.
The Government has moved for summary judgment on this claim based on
Ellis's failure to prove that any of his injuries have been caused by a
delay in providing him medical care. Ellis responds simply that "the burden remains on the defendant to show that
plaintiff has no such cause of action." The burden is on the plaintiff to
present prima facie evidence of each element of his cause of action.
Because Ellis has not produced any evidence to establish a causal
connection between his injuries and a delay in treatment, the
Government's motion for summary judgment on this claim is granted.
The claim based on the Government's alleged failure to prevent an
attack on the plaintiff is dismissed for lack of subject matter
jurisdiction. The Government's motion for summary judgment is granted
with respect to the plaintiff's claim for medical negligence. The Clerk
of Court shall enter judgment for the Government and close the case.