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April 26, 2004.


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. ยง 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 granted.


  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, 2000.

  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 the unit.

  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 ...

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