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Failure to Protect May Raise Claim Under Federal Tort Claims Act

by Matt Clarke

The Fifth Circuit Court of Appeals held that it was inappropriate to grant summary judgment against a prisoner who was assaulted by gang members after he had warned prison officials of the danger of being attacked. Following remand, however, the district court entered judgment in favor of the defendants.

Edward Dwayne Ashford, a federal prisoner, was incarcerated at a medium-security facility when he committed a disciplinary infraction and learned he would soon be transferred to a maximum-security prison. While previously incarcerated in the District of Columbia, Ashford had several confrontations with another prisoner named Kevin Smith. Smith and members of his gang had assaulted Ashford, and D.C. prison officials issued separation orders to keep Ashford and Smith from being housed in the same prison population.

Before his transfer, Ashford told the warden of the medium-security prison about his history with Smith. The warden told him to contact other prison officials. Ashford wrote to the other officials and explained the problem, and the warden assured him that his concerns would be investigated and addressed before his transfer. Unfortunately they were not.

Upon his arrival at the maximum-security prison, Ashford was interviewed by Lt. Russell Haas. Ashford alleged that he asked whether Kevin Smith was incarcerated at the facility and explained the relevant history to Haas. Ashford claimed that Lt. Haas told him, incorrectly, that Smith wasn’t housed at the prison.

Ashford was placed in general population. Two days later, he was stabbed 13 times by another prisoner who said he had been sent by Smith. Ashford suffered serious permanent injuries from the attack, including wounds “to his back, head, inner left ear canal, and upper torso.”

Ashford filed a negligence suit against various prison officials under the Federal Tort Claims Act (FTCA). At a Flowers hearing [Flowers v. Phelps, 956 F.2d 488 (5th Cir. 1992), modified in part on other grounds, 964 F.2d 400 (5th Cir. 1992)], a prison official testified that had Ashford mentioned Smith as a “security threat” at intake, he would have been placed in administrative segregation while the threat was investigated. Lt. Haas denied that Ashford had told him about Smith being a threat, but admitted that had he been so informed, he would have no choice but to put Ashford in segregation.

The defendants moved for summary judgment, claiming that Ashford could not sue them because the action complained of involved the discretionary decision of a prison official. The district court granted summary judgment against Ashford on the basis of the discretionary-function exception to FTCA claims, and he appealed.

On December 19, 2007, the Fifth Circuit held that to obtain summary judgment based on the discretionary-function exception, the defendants had to prove the challenged act involved an element of judgment and that the judgment was of the type that the exception was intended to shield. Because a prison official and Lt. Haas had testified that policy would have left no choice but to place Ashford in administrative segregation had Hass been informed of the security threat posed by Smith, the defendants had failed to prove that an element of judgment was involved. Therefore, summary judgment under the discretionary-function exception was inappropriate.

Although Lt. Haas denied having been informed about Smith, Ashford testified that he had told Haas that Smith was a threat. This created a factual dispute, and such a factual dispute cannot form the basis of summary judgment. Therefore, the grant of summary judgment to the defendants was reversed and the case returned to the district court for further proceedings. See: Ashford v. United States, 511 F.3d 501 (5th Cir. 2007).

Following remand there was a lengthy lapse in the case before any further action was taken. The district court denied Ashford’s motion to appoint counsel, then entered judgment for the defendants on August 9, 2010. The court found “that the Bureau of Prisons and its employees exercised ordinary diligence to protect inmates from harm,” as the evidence did not show that Ashford had discussed his security concerns with staff upon his arrival at the maximum-security prison, despite his testimony to the contrary. Further, there were no records from D.C. prison officials in Ashford’s file indicating that Smith was a known threat. As a result, the district court concluded “that the Bureau of Prisons and its employees were not negligent.”

Ashford has appealed the judgment; his appeal remains pending before the Fifth Circuit. See: Ashford v. United States, U.S.D.C. (E.D. Tex.), Case No. 1:02-cv-00598-ESH.

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Related legal cases

Ashford v. United States

Ashford v. United States