Opinion
CV 21-00425-TUC-CKJ
11-04-2022
Gabriel Murillo, Plaintiff, v. United States Department of Justice, et al., Defendants.
ORDER
I. Procedural History
Plaintiff Gabriel Murillo, who is confined in the United States Penitentiary-Tucson (USP-Tucson), brought this pro se civil rights proceeding under the Federal Tort Claims Act (“FTCA”). On December 20, 2021, Plaintiff filed his First Amended Complaint. In a January 19, 2022 Order, the Court ordered service of the First Amended Complaint on Defendant United States and required the parties to file supplemental briefs regarding the applicability of the discretionary function exception to Plaintiff's FTCA claims. Defendant filed its supplemental brief on February 18, 2022. Plaintiff sought and was granted an extension of time to file his supplemental brief.
On March 31, 2022, Plaintiff filed a Motion to Compel Filing and Serving of all Records Government Relied and Referenced in its Answer and to Complete the Record. On April 11, 2022, Plaintiff filed a Request for Production of Documents and a Motion for Extension of Time to Complete Discovery. On April 21, 2022, Defendant filed a Response to Plaintiff's Motions. In a May 9, 2022 Order, the Court denied Plaintiff's Motions and gave him 45 days to file his supplemental brief.
On June 21, 2022, Plaintiff filed his supplemental brief. Defendant then sought and was granted an extension of time to file a reply brief. On August 8, 2022, Defendant filed its Reply Brief. Plaintiff sought leave to file a Sur-Reply, which the Court denied in an August 30, 2022 Order.
The Court will dismiss the First Amended Complaint and this action for lack of jurisdiction.
II. Plaintiff's Allegations
In his two-count First Amended Complaint, Plaintiff sues the United States. He asserts claims under the FTCA and seeks money damages, among other relief.
In Count One, Plaintiff alleges that USP-Tucson officers were not screened for COVID-19 “in an effective and appropriate manner,” although staff were aware that there had been no cases of COVID-19 at USP-Tucson, and therefore, any new case “would have to come from the surrounding community.” Officers were screened only after Plaintiff contracted COVID19 and after prisoners began filing grievances. Plaintiff claims the failure to “be[] proactive” led to his COVID-19 infection.
Plaintiff also alleges that he was not provided adequate airway protection. He was given what appeared to be “homemade” masks instead of N-95 masks, which were “touted as the industry standard for protection against COVID-19.” The “improper donning that resulted” from the design of these “rudimentary” mask “negated their protective function.” Prisoners whose eyeglasses fogged if the masks were worn properly began to leave their noses uncovered. According to Plaintiff, this was compounded by staff's failure to enforce “the almost universally improperly donned masks” and led to his COVID-19 infection.
Associate Warden (AW) Segar allegedly failed to wear a face mask, “despite the COVID-19 pandemic being in full swing and the CDC guidelines being specific” regarding compulsory mask-wearing. When another prisoner questioned AW Segar about his failure to wear a face mask, the prisoner was taken to the SHU “for punishment for apparent insubordination.” According to Plaintiff, numerous other officers “followed in the AW's footsteps,” including Officer Dunham, who worked in the compound and was in close contact with many prisoners. Plaintiff claims Officer Dunham “introduced and infected” a larger number of prisoners with COVID-19 and that Dunham had never been “subjected to any form of screening.” Even after numerous other officers were infected, the institution did not initiate screening; screening was only implemented after the infection “ran rampant in the inmate population.”
Plaintiff further alleges that officials failed to secure and prevent the theft of cleaning materials. When Plaintiff informed officers about missing disinfectants, no action was taken. Plaintiff contends the lack of cleaning agents and supplies contributed to the propagation of COVID-19, resulting in his infection.
Plaintiff alleges that fingerprint scanners in the unit did not function properly. When the staff members responsible for the care and maintenance of the scanners were notified, “their response was for [Plaintiff] to rub [his] nose and then retry the scanner.” There was no means to clean the keyboards, and no covers were provided.
Plaintiff also alleges that he did not see a medical provider when he had COVID-19. Although institution staff “thought it necessary to send [him] to a COVID unit, they never at any stage had [him] examined or evaluated by a medical provider,” and he was not given antiviral medication. As his injury, Plaintiff alleges he has experienced persistent fatigue, shortness of breath while walking to and from the dining hall or attempting exercise, difficulty sleeping, lassitude, depressive symptoms, and general muscle and joint aches that do not respond to ibuprofen or naproxen.
In Count Two, Plaintiff alleges that he was not permitted to take his blood pressure and cholesterol medications when prison officials ordered him to go the COVID unit. Plaintiff was without his medications “for quite a few days” before medical staff reissued them. While Plaintiff had COVID, he was given just one blanket, although his cell was freezing, and he had two blankets at his previous unit. Plaintiff's requests for more blankets were ignored. In addition, the water in the showers was frigid for “the first week or two.”
Plaintiff claims there was fecal matter in his cell from overflowing sewer drains, and unit officers refused to let him out, even as raw sewage seeped into his cell. Plaintiff was left to “inhale the putrid air for hours” and was not given any means to clean out his cell. After “numerous” hours, an officer used a squeegee to get the lumps of feces out of the cell, smearing the matter on the floor in the process. Plaintiff was not given water, mops, disinfectants, or deodorants to clean the cell and was “left in the stench for days.”
III. FTCA and Discretionary Function Exception
The FTCA waives the United States' sovereign immunity from suit for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his or her office or employment, under the circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b)(1). Thus, relief under the FTCA may be sought for negligent acts or omissions of employees or agents of the federal government. See Vander v. U.S. Dep't of Justice, 268 F.3d 661, 663 (9th Cir. 2001); Westbay Steel, Inc. v. United States, 970 F.2d 648, 651 (9th Cir. 1992). The Supreme Court has noted that “[t]he broad and just purpose which the statute was designed to effect was to compensate the victims of negligence in the conduct of governmental activities in circumstances like unto those in which a private person would be liable and not leave just treatment to the caprice and legislative burden of individual private laws.” Indian Towing Co. v. United States, 350 U.S. 61, 68 (1955).
The United States' waiver of sovereign immunity is limited, however. Liability cannot be imposed under the FTCA if the tort claims stem from a federal employee's exercise of a “discretionary function.” 28 U.S.C. § 2680(a). Section 2680(a) provides that the FTCA waiver of immunity does not extend to any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. See also Terbush v. United States, 516 F.3d 1125, 1129 (9th Cir. 2008) (“Even if the decision is an abuse of the discretion granted, the exception will apply.”).
Courts may consider the applicability of an FTCA exception whether a party has raised the issue. See, e.g., Mirmehdi v. United States, 689 F.3d 975, 984 n.7 (9th Cir. 2012) (as amended) (“[B]ecause the applicability of an FTCA exception affects our jurisdiction, we must consider it sua sponte.”) (citation omitted); Bedell v. United States, 669 Fed.Appx. 620 (3d Cir. 2016) (per curiam) (district court did not err in considering applicability of discretionary function exception sua sponte since exception is “jurisdictional”) (citing, in part, id.); see generally United States v. Hays, 515 U.S. 737, 742 (1995) (“federal courts are under an independent obligation to examine their own jurisdiction”) (citation omitted). In considering whether the Court has subject matter jurisdiction, it may consider extrinsic evidence demonstrating or refuting the existence of jurisdiction without converting the proceeding into a motion for summary judgment. See Wolfe v. Strankman, 392 F.2d 358, 362 (9th Cir. 2004). The Court can review all relevant evidence to resolve any factual disputes concerning the existence of jurisdiction. See Ruffino v. United States, 374 F.Supp.3d 961 (E.D. Cal. 2019).
The government bears the burden of showing that the discretionary function exception applies. Bear Medicine v. U.S. ex rel. Sec'y of the Dep't of the Interior, 241 F.3d 1208, 1213 (9th Cir. 2001). To make that showing, the government must prove that each of the allegedly wrongful acts, by each allegedly negligent actor, is covered by the discretionary function exception. GATX/Airlog Co. v. United States, 286 F.3d 1168, 1174 (9th Cir. 2002) (“when determining whether the discretionary function exception is applicable, ‘[t]he proper question to ask is not whether the Government as a whole had discretion at any point, but whether its allegedly negligent agents did in each instance'”) (quoting In re Glacier Bay, 71 F.3d 1447, 1451 (9th Cir. 1995)).
To determine whether the discretionary-function exception bars a particular claim, the Court applies a two-part test. Id. First, the Court must decide whether the challenged conduct is discretionary, that is, whether it “involv[es] an element of judgment or choice.” Fang v. United States, 140 F.3d 1238, 1241 (9th Cir. 1998) (citing Berkovitz v. United States, 486 U.S. 531, 536 (1988)). “This element is not met ‘when a federal statute, regulation or policy specifically prescribes a course of action for an employee to follow,'” id., because “‘the employee has no rightful option but to adhere to the directive,'” Nieves Martinez v. United States, 997 F.3d 867, 876 (9th Cir. 2021) (quoting Berkovitz, 486 U.S. at 536).
Second, if the challenged conduct is discretionary, the Court “must determine whether that judgment is of the kind that the discretionary function exception was designed to shield.” Berkovitz, 486 U.S. at 536. “[I]f the judgment involves considerations of social, economic, or political policy, the exception applies.” Nieves Martinez, 997 F.3d at 876. On the other hand, “matters of scientific and professional judgment - particularly judgments concerning safety - are rarely considered to be susceptible to social, economic, or political policy.” Whisnant v. United States, 400 F.3d 1177, 1180-81 (9th Cir. 2005).
“The primary focus of the second part of the test is on ‘the nature of the actions taken and on whether they are susceptible to policy analysis.'” Fang, 140 F.3d at 1241 (quoting United States v. Gaubert, 499 U.S. 315, 325 (1991)). “When a statute, regulation or agency guideline allows a government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion.” Weissich v. United States, 4 F.3d 810, 814 (9th Cir. 1993) (citing Gaubert, 499 U.S. at 324). But the discretionary function exception does not apply when “the claim is for negligence in performing a function that is analogous to functions performed by professionals in the private sphere every day.” Sigman v. United States, 217 F.3d 785, 795-96 (9th Cir. 2000).
IV. Discussion
A. Relevant Facts
1. BOP Infectious Disease Management Protocol
The Federal Bureau of Prisons (BOP) has an Infectious Disease Management Protocol, set forth in Program Statement P6190. The Program Statement, issued in June 2014, provides that BOP “will manage infectious diseases in the confined environment of a correctional setting through a comprehensive approach which includes testing, appropriate treatment, prevention, education, and infection control measures.” The Program Statement primarily addresses management of HIV and tuberculosis.
See https://www.bop.gov/policy/progstat/6190004.pdf (last accessed Sept. 1, 2022).
2. DOJ Guidelines
The Department of Justice (DOJ) guidelines regarding the COVID-19 pandemic provides that its employees are to wear face masks “to the extent practicable.” DOJ's guidelines provides that individuals “may remove a face covering when working in a private office, cubicle, or workspace where at least six feet of social distance can be maintained, and that individuals may need to lower their face covering in order to pass through security checkpoints.”
The current version of the DOJ COVID-19 Workplace Safety Plan is available at https://www.justice.gov/doj/page/file/1471931/download.
3. CDC COVID-19 Guidance
On March 23, 2020, the Centers for Disease Control and Prevention (CDC) issued Guidance on Prevention and Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (“CDC Guidance”). The CDC Guidance was updated on February 19, 2021, May 6, 2021, June 9, 2021, February 10, 2022, and May 3, 2022.
See https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html (last visited Oct. 27, 2022).
The CDC Guidance specifies COVID-19 prevention strategies for prisons, including testing, vaccines, hygiene, quarantine, treatment, isolation, masking, and ventilation. The CDC Guidance does not contain any recommendations with respect to cleaning or sanitization in prisons. With respect to masks, the CDC Guidance suggests requiring masks indoors when risk is higher; it does not specify that prisoners or prison staff should be issued N-95 masks. The CDC Guidance also suggests enhanced ventilation when risk is higher. The CDC Guidance recognizes that “[p]revention is not ‘one size fits all'” and that “[i]t may not be feasible to use all enhanced strategies because of resources, facility characteristics.” Thus, the CDC Guidance advises that prisons add as many enhanced strategies as possible during periods of higher risks.
Id.
4. BOP COVID-19 Pandemic Response Plan
On August 31, 2020, BOP implemented its own COVID-19 Pandemic Response Plan (“BOP Plan”) setting forth certain operational modifications to be put in place at each BOP facility. The operational modifications to be employed are determined by the institution's “operational level,” which is, in turn, based on three factors: (1) the institution's medical isolation rate; (2) the facility vaccination rate; and (3) the community transmission rate. BOP's Operational Modifications Matrix provides that at Level 3, the following modifications are necessary: Follow the full COVID-19 Pandemic Plan including facility-wide use of face coverings, surgical or N95 masks as indicated for prisoners and staff; practice social distancing in all areas; implement daily staff symptom screening, including a temperature check prior to entry into the institution. In addition, regardless of operation level, prisoners are tested for COVID-19 when they are symptomatic, asymptomatic but exposed, during movements, and when surveillance is needed.
See https://www.bop.gov/foia/docs/COVIDPandemicResponse%20PlanV.pdf (last visited Oct. 27, 2022). The BOP Plan is divided into various “modules,” including, as relevant to this case, Infection Prevention and Control Measures; Personal Protective Equipment; Screening and Testing; Medical Isolation and Quarantine; Surveillance; Inmate Movement; and BOP Employee Management.
See https://www.bop.gov/coronavirus/covid19modifiedoperationsguide.jsp (last visited Oct. 28, 2022).
The BOP Plan states that institution staff “should be educated to stay home if they have any COVID-19 associated symptoms.” If employees become sick at work, they should be advised to promptly report this to their supervisor and go home. When the BOP COVID-19 Modified Operations Matrix indicates-that is, at Level 3-all employees must be screened upon arrival with a temperature check, as well as questions about respiratory and other COVID-related symptoms and whether they have had contact with a known COVID-19 case.
With respect to face coverings, the BOP Plan does not require all staff and prisoners to wear N-95 masks. Rather, the BOP Plan specifies that surgical masks and N-95 respirators are reserved for environments requiring PPE such as staff working in quarantine unit or providing care to inmates in medical isolation. In all other locations, surgical, KN-95, or KF-94 masks may be dispensed and worn. The BOP Plan specifies that all staff and prisoners “are to continue wearing a well-fitting mask to protect themselves and others from the spread of COVID-19. All staff and inmates are expected to be able to wear their chosen face covering throughout the day and tolerate wearing it in public indoor settings.” Two-layer cloth face coverings are recommended; single-layer face coverings are not recommended.
The BOP Plan provides that a “sufficient stock of hygiene supplies, cleaning supplies, PPE, and medical supplies (consistent with the healthcare capabilities of the facility) should be on hand and available, and a plan should be in place to restock as needed if COVI D-19 transmission occurs within the facility.” The BOP Plan also specifies that providers “should consult with their Regional Medical Director and monitor updates from the CDC on the latest treatment guidelines.”
Plaintiff asserts that the Court should not resolve the jurisdictional question now because the jurisdictional facts are “intertwined with the merits” of this case. (Doc. 23 at 9.) He is mistaken. It is true that where issues of jurisdiction and substance “intertwine,” and the issues are “so intertwined that resolution of the jurisdictional question is dependent on factual issues going to the merits,” the Court applies a summary judgment standard. Autery v. United States, 424 F.3d 944, 956 (9th Cir. 2005). However, here, whether the discretionary function exception applies-the jurisdictional issue-is not “intertwined” with the merits of Plaintiff's FTCA claim. Ruffino, 374 F.Supp.3d at 968 (concluding in FTCA case that the dispositive issues involved jurisdictional facts that were not intertwined with the substance of plaintiff's case because determining whether the defendant had discretion to act is separate from determining how it in fact acted).
1. Plaintiff's Alternative Bases for Jurisdiction
The Court will first address Plaintiff's suggested “alternative” bases for the Court's jurisdiction over this case: 28 U.S.C. § 1346(b) and 28 U.S.C. § 2680(h). (Doc. 23 at 2.) Section 1346(b), Title 28 U.S.C., is part of the FTCA. Therefore, this statute does not present an “alternative” basis for jurisdiction.
Plaintiff also cites § 2680(h), which sets forth what is known as the intentional tort exception. (Id.) Section 2680(h) exempts from the United States' waiver of sovereign immunity “[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” Plaintiff has not alleged any facts to support a conclusion that a BOP employee committed any of the enumerated intentional torts. Plaintiff also fails to cite any authority to support that prison officials' decisions regarding preventing and controlling disease in prisons can support an intentional tort claim, and the Court is aware of none.
Thus, the Court rejects Plaintiff's suggested alternative bases for this Court's jurisdiction over his claims.
2. Plaintiff's FTCA Claims Implicate the Discretionary Function Exception
The Court also dispenses with Plaintiff's misguided suggestion that the Court should not even consider whether the discretionary function exception applies to his claims. Plaintiff contends the Court should not consider “some randomly invented discretionary function” but should instead examine “tenets of science, medicine, and common sense,” to determine “the scope of duty owed by the prison staff to the inmate.” (Doc. 23 at 10.)
This argument is unavailing for two reasons. First, the discretionary function was not “randomly invented”; rather, the FTCA expressly includes the discretionary function exception in the text of the statute. Second, “tenets of science, medicine, and common sense” have no relevance to the jurisdictional question here, which is focused on the existence of a statute or regulation that imposes a non-discretionary duty.
In sum, Plaintiff's claims implicate the discretionary function exception. Thus, the Court will consider whether the exception applies in this case.
3. Berkovitz Test
a. Count One
(1) Challenged Conduct
In Count One, Plaintiff challenges the following conduct by USP-Tucson officials: (1) officials failed to screen officers for COVID-19 in an effective and appropriate manner; (2) Plaintiff was not provided adequate airway protection, specifically, N-95 masks; (3) the masks that were provided were rudimentary and were not properly worn; (4) officials failed to secure cleaning materials and failed to prevent their theft, which contributed to the propagation of COVID-19, resulting in his infection; (5) officials never had Plaintiff examined or evaluated by a medical provider, and he did not receive antiviral medication when he contracted COVID-19.
(2) Whether Conduct was Discretionary
As discussed above, the first step in the Berkovitz test requires the Court to decide whether the challenged conduct “involv[es] an element of judgment or choice.” Fang, 140 F.3d at 1241. Plaintiff contends Defendant's conduct was not discretionary for four reasons. First, Plaintiff argues that there is no evidence in the history of the FTCA or the natural reading of the statute that supposes that Congress intended to shield “malice,” “intentional,” or “deliberate indifference” from tort liability. (Doc. 23 at 1.) Second, Plaintiff asserts there is no evidence in the history of the FTCA that Congress “envisioned the alleged act to be discretionary, because COVID-19 itself is a novel virus.” (Id.) Third, Plaintiff contends the BOP Director “claim[ed] ability to protect from COVID-19,” thereby “suggest[ing] and indicat[ing] that there was no discretion to exercise, but a mandatory duty to perform.” (Id.) Fourth, Plaintiff argues that the government does not have authority to create policies and guidelines that violate the Constitution or to “specifically incorporate provisions such that its agents can ‘abuse their discretion' in performance of such.” (Id.)
Plaintiff's arguments are misplaced. Whether the challenged conduct was intentional, done with malice, or amounted to deliberate indifference is irrelevant to the jurisdictional question presented here. These concepts might apply to constitutional claims, but they do not apply here because the FTCA expressly provides a remedy for negligent conduct, and a constitutional claim under the FTCA is not cognizable. See FDIC v. Meyer, 510 U.S. 471, 478 (1994) (“the United States simply has not rendered itself liable under § 1346(b) for constitutional tort claims,” and thus, such claims are “not cognizable”). In addition, Plaintiff's contention that Congress did not intend Defendant's response to the COVID-19 pandemic to be discretionary because COVID-19 is a novel virus misses the mark. Whether the circumstances surrounding the challenged conduct arise in an unprecedented context is distinct from the question whether the conduct taken in response to that situation was discretionary.
Moreover, the Ninth Circuit has consistently concluded that actions taken in prisons fall under the discretionary function exception. See Alfrey v. United States, 276 F.3d 557 (9th Cir. 2002) (concluding discretionary function exception barred plaintiff's FTCA claim based on the death of her husband, a federal prisoner, who was killed by another prisoner); see also Gladney v. United States, 858 Fed.Appx. 221, 223 (9th Cir. 2021) (concluding that discretionary function exception barred transgender prisoner's FTCA claim stemming from her alleged sexual assault because choices about how to monitor prisoners involve the type of policy judgment protected by the discretionary-function exception); Hernandez v. United States, 83 Fed.Appx. 206, 207 (9th Cir. 2003) (concluding that the discretionary function exception applied to a claim that the United States Marshals Service acted negligently in overseeing security at a federal facility while the plaintiff was awaiting trial and failed to take proper measures to protect his life).
Given the recentness of the COVID-19 pandemic, federal appellate courts, including the Ninth Circuit, have not had much opportunity to grapple with FTCA claims regarding exposure to COVID-19 in prisons. The Court finds the decision in Santiago v. United States, 2022 WL 790805 (W.D. Va. Mar. 14, 2022). There, the district court concluded that the discretionary function exception barred the plaintiff's FTCA claim. Applying the Berkovitz test, the district court reasoned that BOP's handling of COVID-19 and the protective measures it put into place involved an element of judgment or choice. Id. at *2. The district court noted that CDC guidance regarding COVID-19 “was just that- guidance.” Id. The district court further noted that the statutory command in 18 U.S.C. § 4042(a)(2)-which requires the BOP to “provide for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the United States”-grants significant discretion to BOP as to how to satisfy the directive. Id. While this case is not precedential authority, the Court finds the logic and reasoning in Santiago persuasive.
Next, Plaintiff identifies several purported statutes, regulations, or policies that prescribe a specific course of conduct with respect to the COVID-19 pandemic. First, Plaintiff cites 18 U.S.C. § 4042, without elaboration, and appears to argue that § 4042 imposes a non-discretionary duty on the BOP. (Doc. 23 at 4.) Section 4042 entrusts the BOP with responsibility to “provide suitable quarters and provide for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the United States.” 18 U.S.C. § 4042. The Ninth Circuit has concluded that § 4042 outlines federal prison officials' general duty of care toward prisoners but does not prescribe a specific course of conduct that leaves “no room for choice or judgment.” See Barian v. United States, 728 Fed.Appx. 703, 705 (9th Cir. 2018) (quoting Gaubert, 499 U.S. at 324). Thus, § 4042 does not include any mandatory and specific directive with respect to management of the COVID-19 pandemic. See Nanouk v. United States, 974 F.3d 941, 946 (9th Cir. 2020) (holding that “absence of a mandatory and specific directive” prevented plaintiff from prevailing).
Plaintiff also cites BOP's Infectious Disease Management Protocol, set forth in Program Statement P6190, which he contends “require[s] screening, testing, monitoring, aggressively investigating, surveilling and treating” prisoners. (Id. at 11.) (Id.)
Plaintiff also contends that “any discussion with respect to discretionary function should involve a complete and thorough discovery leading to evidentiary hearing prior to determine of the same . . . Otherwise, it will violate Plaintiff's due process rights.” (Doc. 23 at 11.) Whether to conduct an evidentiary hearing is left to the Court's discretion and does not implicate any due process rights Plaintiff might have.
Specifically, Plaintiff contends that Program Statement 6190.04 “requires creation of a team headed by the Infection Control Officer who surveil[s] the facility, monitor[s] CDC guidelines and quickly adapt[s] to the needs. (Id. at 5.) Plaintiff asserts P6190 includes “containment plans, quarantine plans, outbreak records, quarterly improvement programs, reviews, Quarantine Procedures, staff education, protection, inmate population protection from outbreaks.” (Id.) Plaintiff asserts “there is absolutely no discussion of exercising discretion” in Program Statement 6190.04, and “discretion itself does not appear in the program statements, nor there is any sembl[a]nce to it.” (Id. at 12.)
Whether an applicable regulation or policy includes the word “discretion” is not dispositive of whether the regulation or policy permits officials to make discretionary decisions.
First, as discussed above, BOP Program Statement 6190.04 concerns prevention of transmission of HIV and tuberculosis and predates the COVID-19 pandemic by six years. Second, even if Program Statement 6190.04 could be construed as governing USP-Tucson officials' decisions regarding COVID-19, Plaintiff has not cited any provision in the Program Statement that prescribes a specific course of action that leaves “no room for choice or judgment.” Id. Plaintiff cites a portion of the Program Statement that provides, “Only those institutions equipped with the proper engineering protocols to house inmates in a negative pressure isolation room (NPIR) that comply with the CDC recommendations, have the option to isolate and treat inmates with suspected TB or other airborne disease (requiring airborne precautions) that may remain suspended in the air and be spread by casual contact.” But this provision explicitly states that institutions equipped with an NPIR have an option to isolate and treat prisoners with suspected TB or other airborne disease. If officials have an option to take a course of action, the choice is necessarily discretionary. And other provisions in the Program Statement permit discretionary decisions. For example, the Program Statement provides, “It is recommended that the TB skin test be placed during intake screening. Inmates with a documented previously positive tuberculin skin test, should not be retested, but should be screened for active TB disease by chest radiograph.” Whether an applicable regulation or policy includes the word “discretion” is not dispositive of whether the regulation or policy permits officials to make discretionary decisions, and the use of the words “recommended,” “should not,” and “should” demonstrate that Program Statement 6190.04 does not prescribe a mandatory course of conduct.
Plaintiff cites two federal regulations, 28 C.F.R. § 549.10, and 29 C.F.R. § 1910. Section 549.10 provides, “The Bureau will manage infectious diseases in the confined environment of a correctional setting through a comprehensive approach which includes testing, appropriate treatment, prevention, education, and infection control measures.” Plaintiff contends § 1910 “controls employees wearing protective gear at BOP to protect themselves and inmate.”
Neither of these regulations precludes the applicability of the discretionary function exception in this case. Section 549.10 refers to the purpose and scope of the ensuing BOP regulations regarding infectious disease management; it does not prescribe any specific course of conduct BOP must take to achieve management of infectious diseases in its facilities. Section 1910 sets forth Occupational Health and Safety Administration regulations. Section 1910.132(a) provides, “Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.” (Emphasis added.) This regulation permits discretion to determine when personal protective equipment is necessary. that USP-Tucson had an ECP, or identify any provision in the ECP that prescribes a specific course of conduct that USP-Tucson officials were required to follow with respect to the COVID-19 pandemic or conditions in the COVID-19 unit.
As Defendant argues, the CDC Guidance is “just that - guidance.” Santiago v. United States, 2022 WL 790805 (W.D. Va. Mar. 14, 2022). The BOP Plan likewise does not prescribe any mandatory, specific requirement with respect to the COVID-19 pandemic. Rather, the BOP Plan is “designed to provide specific guidance on responding effectively” to the challenges presented by the COVID-19 pandemic.
Other federal courts concluded that the discretionary function exception barred FTCA claims stemming from the CO VID-19 pandemic. See, e.g., Farmer v. United States, 2022 WL 35000363, at *5 (D.S.C. Aug. 18, 2022) (dismissing FTCA claim regarding prison's failure to follow statutory and CDC guidelines with respect to COVID-19 under discretionary function exception); Sanford v. United States, 2022 WL 1210717 (D.S.C. Apr. 25, 2022) (same); Santiago, 2022 WL 790805 (concluding that the discretionary function exception barred the plaintiff's FTCA claim regarding BOP's handling of COVID-19); Motton v. Bureau of Prisons, 2020 WL 8766062 (E.D. Tex. Nov. 12, 2020) (same); see also Nichols v. United States, 2022 WL 989467, at *3 (5th Cir. Apr. 1, 2022) (concluding that the discretionary function exception applied to prisoner's claim that the government failed to establish, maintain, and follow policies related to controlling infectious diseases maintaining care, custody, and control of prisoners and negligently maintained care, custody, and control of him).
In sum, the Court finds Defendant has met its burden of showing that there are no mandatory statutes, regulations, or policies prescribing BOP's course of action with respect to the COVID-19 pandemic. The Defendant has established the first prong of the Berkovitz test: the conduct is discretionary, i.e., involving an element of judgment or choice.
(3) Nature of Discretionary Conduct
With respect to the second Berkovitz factor, the Ninth Circuit has observed that the challenged decision “need not actually be grounded in policy considerations so long as it is, by its nature, susceptible to a policy analysis.” Gonzalez v. United States, 814 F.3d 1022, 1028 (9th Cir. 2016). Where federal regulations or policies expressly give prison officials discretion in how to respond to issues relating to prisoners, it must be presumed that the officials' choices were based in public policy. See Alfrey, 276 F.3d at 559. In Alfrey, the Ninth Circuit concluded that even in the absence of a presumption, the challenged conduct of prison officials involved the type of policy judgment protected by the discretionary function exception. Id.
The Ninth Circuit has, in some FTCA cases, distinguished the design of a governmental action, which is shielded by the discretionary function, from the implementation of that course action, which is not shielded. See Whisnant, 400 F.3d at 1181 n.1. Thus, the Ninth Circuit has noted that, “although an agency's decision to adopt certain safety precautions as opposed to others may be based in policy considerations, generally, ‘the implementation of those precautions is not. Safety measures, once undertaken, cannot be shortchanged in the name of policy.'” Bailey v. United States, 623 F.3d 855, 861 (9th Cir. 2010) (quoting Whisnant, 400 F.3d at 1182). In addition, balancing competing safety considerations is a protected policy judgment. Id. at 862 (citing Miller v. United States, 163 F.3d 591, 595 (9th Cir. 1998)). The Ninth Circuit in Gonzalez warned that it has “cautiously applied this doctrine” and has “applied it largely in cases involving public health and safety, in circumstances where a private party would likely be held liable for the same conduct or omission.” 814 F.3d at 1035. Moreover, “the doctrine does not permit liability where, as here, ‘the implementation itself implicates policy concerns.'” Id. (quoting Whisnant, 400 F.3d at 1182 n.3). “To conclude otherwise would simply swallow the two-step, discretionary act and policy judgment analysis” set forth in Berkovitz. Id.
Defendant argues that “BOP's decisions regarding whether to implement any particular infectious disease measure in a particular institution are grounded in public policy considerations,” (Doc. 13 at 9, including the following:
[T]he need to provide for the safety and security of inmates, BOP staff, and the public at large; preserving the rights of inmates to circulate, socialize and participate in outdoor recreation; how best to allocate limited resources both in terms of money and manpower; the potential impact of any mitigation measure on the security and orderly operation of a correctional institution; whether any mitigation measures would impact BOP personnel's ability to respond to emergency situations; the severity of the risk presented by the disease; and the likely effectiveness of any preventative measure.Id.
The Court agrees that the decisions at issue here were grounded in public policy considerations. In Alfrey, the Ninth Circuit rejected the plaintiff's argument that the prison officials' choices involved merely occupational or professional judgment, reasoning that “the acts of performing a cell search and of responding to a report of inmate misconduct are unique to the context of prisons.” Id. at 566 (citing Sigman, 217 F.3d at 796). “Those acts are core prison functions for which there are no private-sector analogues” and that “federal regulations grant prison officials discretion to determine how to search a cell and how to respond to a threat. As a result, the Government is entitled to a presumption that those determinations are based on policy considerations.” Id. The Ninth Circuit recognized that in some sense, the prison officials' choices involved professional judgment but stated that “that fact alone does not remove the decisions from the realm of policy-based judgments.”
Here, the applicable guidelines allowed BOP officials to exercise discretion; therefore, the Court must presume the BOP officials' acts were grounded in policy when exercising that discretion. See Weissich, 4 F.3d at 814 (citing Gaubert, 499 U.S. at 324). And as the district court in Santiago concluded, “the development and implementation of safety protocols in federal prisons is unquestionably based on considerations of public policy.” 2022 WL 790805, at *3. 217 F.3d at 796). Thus, Defendant is entitled to a presumption that those determinations are based on policy considerations.
For the foregoing reasons, the Court concludes that Plaintiff's claims in Count One are barred by the discretionary function exception.
b. Count Two
In Count Two, Plaintiff challenges the following conduct: (1) Plaintiff was not permitted to take his blood pressure and cholesterol medications when prison officials ordered him to go the COVID unit; (2) while Plaintiff had COVID, he was given just one blanket, although his cell was freezing, and the water in the showers was frigid; (3) there was fecal matter in his cell from overflowing sewer drains, and while raw sewage seeped into his cell, unit officers refused to let him out.
For the reasons discussed above with respect to Count One, the Court concludes the discretionary function exception applies to Plaintiff's conditions-of-confinement claims in Count Two. See, e.g., Blank v. United States, 713 Fed.Appx. 400, 401 (5th Cir. 2018) (concluding that discretionary function exception applied to prisoner's claim regarding his medical classification and assignment to a non-medical prison facility); Brown v. United States Dep't of Justice, 271 Fed.Appx. 142, 145 (3d Cir. 2008) (concluding that discretionary function exception applied to prisoner's claims regarding exposure to environmental tobacco smoke because federal regulations instruct BOP to restrict areas where smoking is permitted at its facilities, and thus, the “explicit grant of discretion means that an element of judgment or choice was involved in the challenged conduct” and policy considerations relating to improving the air and protecting the health and safety of staff and prisoners made the judgment the kind that the discretionary function exception is meant to shield).
In sum, the Court finds Plaintiff's FTCA claims are barred by the discretionary function exception. The Court will therefore dismiss the First Amended Complaint and this action for lack of jurisdiction.
Accordingly,
IT IS ORDERED that the First Amended Complaint (Doc. 8) and this action are dismissed for lack of jurisdiction. The Clerk of Court must enter Judgment accordingly and close this case.
IT IS FURTHER ORDERED that the docket shall reflect that the Court, pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), has considered whether an appeal of this decision would be taken in good faith and finds Plaintiff may appeal in forma pauperis.