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FTCA Claims Survive; PREA Policy Defeats Discretionary Function Exception

by Jeremy Pinson

While confined at the U.S. Penitentiary in Pollock, Louisiana, federal prisoner Rashod L. James filed suit under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680, against the United States and several prison employees – including Officer LeCroix and Warden Mike D. Carvajal – alleging he was sexually harassed when he was in the special housing unit.

According to James, on June 26, 2015 he activated the alarm button in his cell, and LaCroix responded. James said he told LaCroix that his cellmate was threatening to kill him if he did not perform oral sex, and further claimed that LaCroix responded she “didn’t care.” James stated his cellmate persisted in his demands, but he was told there were no open cells for relocation. On June 27, 2015, James again said he was being sexually harassed; the next day his cellmate assaulted him, resulting in a broken tooth, bloodied nose and injuries to his ribs and spine.

James filed a grievance “alleging La­Croix had failed to take any steps to protect him from an assault and attempted sexual assault by his cellmate.” In its response, the BOP “did not mention the fact that an attempted sexual assault was involved.”

BOP policy 5324.12 was in effect as of June 2015, requiring federal prisons to adopt “zero tolerance toward all forms of sexual activity, including sexual abuse and sexual harassment, and to provide guidelines to address ... illegal sexually abusive behavior....” LaCroix denied that James had notified her he was having problems with his cellmate.

The BOP sought summary judgment on a number of grounds, including qualified immunity, the discretionary function exception to FTCA claims and the failure of Warden Carvajal or LaCroix to remember James’ complaints about his cellmate.

The district court noted that “Generally, the United States owes a duty of care to federal prisoners under 18 U.S.C. § 4042, which states, in relevant part, that the BOP shall ‘provide for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the United States.’”

The BOP argued that while it had a duty “to exercise ordinary care,” there was “no evidence of a breach of that duty, or that such breach was the cause in fact or legal cause of James’s injuries.” The court disagreed, finding that under the Prison Rape Elimination Act (PREA), “policies and rules for handling inmate complaints of sexual harassment and sexual assault leave BOP officers no discretion as to whether to follow those procedures,” thus the discretionary function exception did not apply.

The district court noted that James said he had complained about sexual harassment by his cellmate while LaCroix claimed she did not remember any such complaints, which created a genuine issue of material fact that precluded summary judgment. Also, since “James’s constitutional right to not be sexually harassed or assaulted in prison was well-established in June 2015,” the defendants were not entitled to qualified immunity.

On June 14, 2017, the court denied the BOP’s motion for summary judgment in part as to LaCroix and Warden Carjaval with respect to the failure to protect claim, and granted it in part as to Carjaval and BOP Regional Director John Dee on James’ claim for failure to properly supervise, train and discipline staff.

The case subsequently settled in December 2017 for $1,000. James litigated the case pro se. See: James v. LaCroix, U.S.D.C. (W.D. La.), Case No. 1:16-cv-00138-DDD-JPM.

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Related legal case

James v. LaCroix