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Fourth Circuit Reverses Dismissal of FTCA Failure-to-Protect Suit

On December 29, 2015, the Fourth Circuit Court of Appeals reversed the dismissal of a lawsuit alleging federal prison officials had failed to properly search prisoners who were placed in a recreation cage where they assaulted and repeatedly stabbed another prisoner.

Federal prisoner Joshua Rich was incarcerated in the Special Housing Unit at USP-Hazelton when he was beaten and stabbed multiple times by other prisoners in a recreation cage. He suffered severe injuries – including liver and heart lacerations – which required numerous invasive surgeries. A nine-inch metal knife was recovered at the scene.

Prior to that incident, Rich had been repeatedly assaulted at several different prisons by members of the Aryan Brotherhood (AB) because he refused to join or be affiliated with the gang. Rich filed suit under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), alleging prison officials were negligent in failing to protect him from the attack. Before Rich could conduct discovery, the district court granted the government’s motion to dismiss on the basis of the FTCA’s discretionary exception. Rich filed an appeal with the assistance of Wheeling, West Virginia attorney Jay Thornton McCamic.

The discretionary function exception to the FTCA protects government officials from claims involving “the exercise or performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). If a statute, regulation or policy prescribes a specific course of action, there is no discretion and the exception does not apply. However, if the challenged conduct involves an element of judgment, the court must determine whether the judgment was one the exception was designed to protect – a judgment based on considerations of public policy. If it is, the exception applies. If not, then it does not.

Rich had two theories of liability: 1) given his prior history with the AB, prison officials should not have placed him in a recreation cage with known members of that gang; and 2) prison officials had failed to properly screen, “wand” or search the prisoners who were placed in the recreation cage with him.

Reviewing the order of dismissal de novo, the Fourth Circuit held that the first theory of liability involved a discretionary function. Due to public policy considerations, prison officials have discretion to determine which prisoners can be expected to safely recreate with each other; thus, that claim was properly dismissed.

However, prison post orders require that prisoners be handcuffed behind the back when leaving their cells for recreation, and “be pat searched and screened with the handheld metal detector before entering and upon exiting the recreation cages.” The pat searches are to be performed in accordance with the Correctional Services Manual, and prisoners with a history of weapons possession must be strip searched with a visual body cavity inspection.

The Court of Appeals held that the discovery of a nine-inch knife at the scene suggested the searches were not properly performed. Since that claim did not involve policy considerations, prison officials were not shielded by the discretionary function exception. Further, Rich’s lawsuit should not have been dismissed prior to permitting discovery on that claim, as the facts regarding the adequacy of the searches were intertwined with the merits of his claim.

Therefore, the dismissal of Rich’s claim related to placement of prisoners in recreation cages was affirmed, while the dismissal of his claim involving improper searches by prison officials was vacated. The case was remanded to the district court for further proceedings, where it remains pending. See: Rich v. United States, 811 F.3d 140 (4th Cir. 2015). 

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Related legal case

Rich v. United States