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Fifth Circuit Reinstates Federal Prisoner’s Tort Claim Against BOP Officials

by Keith Sanders

The U.S. Court of Appeals for the Fifth Circuit held on August 23, 2021, that a district court erred in dismissing a former federal prisoner’s intentional tort claims.

The former prisoner, Bryan Kerr Dickson, was incarcerated by the Bureau of Prisons (BOP) at the Federal Correctional Complex in Beaumont, Texas, where he claimed that he repeatedly expressed concerns that he would be targeted by other prisoners because he had been convicted for possession and production of child pornography. Nonetheless the BOP housed him with the prison’s general population, where Dickson was subsequently assaulted by another prisoner.

He was then placed in a Special Housing Unit (SHU), where he attempted suicide. His complaint alleged that prior to the attempt his requests for mental health treatment were denied and that BOP staff had even encouraged him to take his own life. After the suicide attempt, Dickson claimed that BOP officials stood by while he was again assaulted by another prisoner.

Dickson then filed suit pro se under the Federal Tort Claims Act (FTCA) in U.S. District Court for the Eastern District of Texas, seeking damages for negligence and an intentional tort claim. The United States, as defendant, moved to dismiss the suit, arguing that under Federal Rules of Civil Procedure 12(b)91) and (b)(6), the “district court lacked subject matter jurisdiction and that Dickson’s complaint failed to state a claim.” The district court agreed and granted the government’s motion to dismiss for lack of subject-matter jurisdiction, on the grounds that the United States enjoyed sovereign immunity as prescribed by FTCA’s “law enforcement proviso.”

The district court acknowledged that FTCA permits, with certain exceptions, waivers of sovereign immunity for suits brought against the United States for monetary damages valid in state tort law for negligent or wrongful acts committed by government employees. See: Spotts v. United States, 613 F.3d 559, 565 (5th Cir. 2010).

However, citing the same case and its reference to federal tort liability under 28 U.S.C. § 2674, the district court ruled that one of FTCA’s exceptions to such waivers blocked Dickson’s negligence claims, specifically the “discretionary function exception,” which eliminates an immunity waiver in situations where “although a government employee’s actions may have been actionable under state tort law, those actions were required by, or were within the discretion committed to, that employee under federal statute, regulation, or policy.”

The district court also held that, with respect to Dickson’s intentional tort claims, the “law enforcement proviso” to FTCA’s intentional tort exception did not apply. Dickson appealed the district court’s ruling.

The Fifth Circuit affirmed the lower court’s determination that it lacked subject-matter jurisdiction regarding the negligence claims. In its decision, the appellate court noted that “Dickson has not identified any such policy or otherwise alleged that the BOP violated a nondiscretionary duty when it placed him within the general population,” thus not demonstrating the FTCA’s discretionary-function exception applies.

However, the Fifth Circuit reversed the district court’s dismissal of the plaintiff’s intentional tort claims. The lower court relied on a previous ruling by the Fifth Circuit which, under FTCA’s law enforcement proviso, held that while the “defendant BOP officers had the status of law enforcement officers … they were not engaged in law enforcement activities.” See: Cross v. United States, 159 F. App’x 572 (5th Cir. 2005).

Citing the fact that the U.S. Supreme Court had since “explicitly rejected this ‘status’ versus ‘activities’ distinction” in a later case, Millbrook v. United States, 569 U.S. 50, 133 S. Ct. 1441 (2013), citing 28 U.S.C. § 2680 (h), the Fifth Circuit reversed the district court’s dismissal of Dickson’s intentional tort claims for lack of jurisdiction.

Remanding the suit, the Fifth Circuit also instructed the district court to consider only whether BOP officials had acted within the “scope of their employment when committing the alleged torts” in order to determine if the FTCA law-enforcement proviso applies. See: Dickson v. United States, 11 F.4th 308 (5th Cir. 2021).

As of mid-January 2022, the case was still on remand. See: Dickson v. United States, USDC (E.D.Tex.), Case No. 1:14-cv-00250-MAC-CLS. 

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Related legal cases

Dickson v. United States

Dickson v. United States

Spotts v. United States

Cross v. United States