Summary
holding that 28 C.F.R. § 551.6 leaves implementation of the duty to provide articles necessary for personal hygiene to discretion of prison warden and that the decision to provide inmates with razor blades falls under the discretionary function exception to the FTCA
Summary of this case from Gray v. U.S.Opinion
No. 01 Civ. 4665 (AKH)
July 9, 2002
MEMORANDUM AND ORDER DISMISSING COMPLAINT
I. Background
A. Facts
Plaintiff Rudy A. Ortiz, proceeding pro se and in forma pauperis, filed this action on April 27, 2001 pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671-2680 ("FTCA"). Plaintiff alleges that fellow inmate Domingo Monegro slashed his face with a razor on March 11, 1999, while he was incarcerated at the Federal Correctional Institute in Otisville, New York ("FCI Otisville"). Plaintiff asserts a negligence claim against the United States, alleging that prison officials could have prevented the attack if (1) they had taken more precautions in separating and monitoring petitioner and Monegro, or (2) they had not allowed Monegro to possess a shaving razor. Plaintiff seeks $20 million in damages for his permanent disfigurement and resulting psychological complex.
Plaintiffs complaint also refers to 28 U.S.C. § 1983. Section 1983 and its federal analog, Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), require a showing that defendants acted under color of federal law to deprive plaintiff of a constitutional right. Since plaintiffs complaint does not refer to a deprivation of a constitutional or federal right, 28 U.S.C. § 1983 does not apply to this case.
B. Procedural History
On January 31, 2002, defendant filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. By Order of February 8, 2002, I explained the consequences of such a motion to plaintiff and gave him until March 8, 2002 to submit any papers in opposition to the motion. By letter of February 13, 2002, the Government informed me that plaintiff had been released by the Bureau of Prisons ("BOP") and notified me that its moving papers had been refused by the Metropolitan Detention Center, plaintiffs address of record in the case. On February 14, 2002, this Court resent via certified mail the Government's moving papers and a copy of my Order of February 8, 2002 to the residential address plaintiff had given the BOP. The letter was returned by the postal service on March 2, 2002 marked "return to sender." A non-certified copy postmarked February 13, 2002 was also returned unopened. By letter of February 28, 2002, the Government informed me that the service copy of its motion resent to plaintiffs residential address had also been returned as unclaimed. Plaintiff has not informed defendant or this Court of his new mailing address or made any other communication since October 5, 2001. Because it is impossible for either the Court or the defendant to contact plaintiff and because plaintiff has failed to show an interest in his case since he was released from custody, the Complaint is dismissed for failure to prosecute. In the alternative, I grant defendant's motion to dismiss for lack of subject matter jurisdiction.
II. Discussion
A. The Case Is Dismissed For Failure To Prosecute.
Under Federal Rule of Civil Procedure 41(b), a court may dismiss a claim "for failure of the plaintiff to prosecute or to comply with these rules or any order of the court." See Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). While dismissal is a harsh remedy, Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996), "the authority to invoke it for failure to prosecute is vital to the efficient administration of judicial affairs" and ensures that courts can "provide meaningful access for other prospective litigants to overcrowded courts." Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982). Failure to prosecute can be evidenced either by an "action lying dormant with no significant activity" or a "pattern of dilatory tactics." Id. The operative condition in determining whether a dismissal for failure to prosecute is appropriate is whether the plaintiff has failed in his duty to process the case diligently. Messenger v. United States, 231 F.2d 328, 331 (2d Cir. 1956).
In determining whether the duration of the failure to prosecute warrants dismissal, I must determine (1) whether the failures to prosecute were those of the plaintiff; and (2) whether these failures were of a significant duration. See Spencer v. Doe, 139 F.3d 107, 113 (2d Cir. 1998). First, although the government's request for extensions caused some delay in this case, the failures to prosecute are clearly those of the plaintiff. Plaintiff has taken no action in this case since October 5, 2001. Plaintiff has not even fulfilled his minimal obligation to keep the pro se office of this Court informed of his change of address. See Hibbert v. Apfel, No. 99 Civ. 4246, 2000 WL 977683 (S.D.N.Y. July 17, 2000). Both this Court and the defendant have made repeated attempts to contact the defendant and have been unable to do so.
Plaintiff has made no attempt to prosecute this case since effecting service of process nearly nine months ago, on October 5, 2001. Because it is impossible to proceed with this case so long as plaintiffs whereabouts are not known, I dismiss this complaint pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute.
B. The United States Is Immune From Suit Under The Discretionary Function Exception
Even if the plaintiff had diligently pursued this case, this Court lacks jurisdiction over plaintiffs claims. As a sovereign, the United States is immune from suit unless it enacts a statute consenting to be sued, and the terms of its consent define the court's subject matter jurisdiction to entertain the suit. United States v. Sherwood, 312 U.S. 584, 586 (1941). Waivers of sovereign immunity are to be strictly construed, Morales v. United States, 38 F.3d 659, 660 (2d. Cir. 1994) (per curiam), and must be unequivocally expressed rather than implied. See United States v. King, 395 U.S. 1, 4 (1969). Plaintiff has the burden of proving the existence of subject matter jurisdiction by a preponderance of the evidence. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Because subject matter jurisdiction speaks to the authority of this Court to hear a claim, I may look at evidence outside of what is alleged in the pleadings to determine whether subject matter jurisdiction exists. Id.
Here, plaintiff sues pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671-2680, which waives the United States sovereign immunity as to certain tort claims. The FTCA, however, does not waive the United States' immunity as to claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of . . . an employee of the Government whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). This exception to the FTCA's waiver of sovereign immunity bars suit only if two conditions are met: (1) the acts or omission alleged to be negligent involve an "element of judgment or choice" not compelled by statute or regulation; and (2) such judgment or choice is grounded in "considerations of public policy." United States v. Gaubert, 499 U.S. 315, 322-23 (1991) (internal citations omitted); Berkovitz v. United States, 486 U.S. 531, 536-37 (1988). Accordingly, the discretionary function exception precludes claims based on day-to-day management decisions if those decisions require judgment as to which of a range of permissible course is the wisest. Gaubert, 499 U.S. at 325. If a claim falls within the exception, the Court lacks jurisdiction authority to entertain the claim. Fazi v. United States, 935 F.2d 535, 537 (2d Cir. 1991).
For a complaint alleging jurisdiction under the FTCA to survive a motion to dismiss, "it must allege facts which would support a finding that the challenged actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory regime." Gaubert, 499 U.S. at 324-25. The focus of the inquiry is on the "nature of the actions taken and on whether they are susceptible to policy analysis" rather than on the decision-maker's subjective intent. Id. at 325.
Here, plaintiff alleges that FCI Otisville was negligent in (1) permitting Monegro to come into contact with him and not appropriately supervising the cell areas; and (2) allowing Monegro to possess a shaving razor. For the reasons set forth below, these actions are discretionary determinations within the discretionary function exception. I therefore dismiss plaintiffs claims for lack of subject matter jurisdiction.
1. Safeguarding of Inmates
Plaintiff alleges that had the shift officer been inspecting the cell areas at the time of the alleged attack, he would not have been injured. Plaintiff further argues that because he gave information to the Government against his aggressor, Domingo Monegro, that led to Monegro being charged with murder and other crimes, he and Monegro should have been separated.
The internal security of prisons is normally left to the discretion of prison administrators. Rhodes v. Chapman, 452 U.S. 337, 349 n. 14 (1981). The BOP is charged with the duties of "management and regulation of all Federal penal and correctional institutions" and "provid[ing] for the safekeeping, care and subsistence of all persons charged with or convicted of offenses." 18 U.S.C. § 4042(a). Although the statute provides the BOP with a duty of care, it addresses only the general responsibilities of BOP employees and does not set forth the particular manner by which the BOP must fulfill this duty. "The absence of specific guidelines of appropriate conduct by BOP officials in administering these duties, therefore, leaves judgment or choice to the BOP officials." Scrima v. Hasty, No. 97 Civ. 8433, 1998 WL 661478, at *3 (S.D.N.Y. Sept. 24, 1998).
Federal regulations provide that the BOP shall classify inmates "who present special needs for management" pursuant to the BOP's Central Inmate Management System ("CIM"). 28 C.F.R. § 524.70. Although some inmates will automatically qualify for CIM classification, the regulation provides BOP officials with discretion to determine whether an inmate who has given information concerning the illegal activities of others should be given a separate assignment. See 28 C.F.R. § 524.72(f) (listing some of the factors to consider in classifying individuals to separate assignments and noting that this assignment includes inmates providing information concerning the activities of others); id. § 524.73(a) ("Except as provided for in paragraphs (a)(1) through (4) . . ., an inmate . . . may be classified as a CIM case at any time by a Community Corrections Manager or by appropriate staff at the Central Office, Regional Office, or institution." (emphasis added)). Neither plaintiff nor his aggressor fell into a category of automatic classification. Other regulations governing the protection of inmates are explicitly discretionary in nature. See 28 C.F.R. § 541.22(a) (setting forth that the warden may place an inmate in administrative detention or delegate the authority to do so); 28 C.F.R. § 541.23 (setting out situations that may be considered protection cases).
The list of required automatic security cases is comprised of: (1) witness security cases; (2) state prisoners; (3) special supervision; and (4) recommitted offenders. See 28 U.S.C. § 524.73(a). Witness security is the only conceivable automatic CIM classification category that petitioner could fall under, but participation in the witness security program is voluntary and requires a commitment interview, admission and orientation before a prisoner is so classified. 28 U.S.C. § 524.73(a)(1). Nothing before us indicates that petitioner was a participant in the program.
"If a regulation allows the employee discretion, the very existence of the regulation creates a strong presumption that a discretionary act authorized by the regulation involves consideration of the same policies which led to the promulgation of the regulations." Gaubert, 499 U.S. at 324. At FCI Otisville, decisions as to which inmates should be separated and which inmates should be placed in administrative detention or more closely monitored involve a balancing of a number of public policy considerations including the inmate safety, the ability of inmates to move about the facility, general concerns for prison security, and the effective use of limited resources (Menifee Dec. at ¶ 4). Accordingly, I hold that the decision by BOP officials not to put Ortiz in protective custody or separate him from Monegro fell within the discretionary function exception.
2. Inmate Access to Razors
Plaintiff further contends that employees of the BOP were negligent in not taking precautions to prevent injuries from shaving razors. BOP regulations provide that "[t]he Warden shall make available to an inmate those articles necessary for maintaining personal hygiene." 28 C.F.R. § 551.6. Like the statutory provisions regarding the safeguarding of inmates, this regulation establishes a duty of care but does not direct the manner in which it is to be fulfilled. The regulation does not offer direction as to what types of hygiene articles are considered "necessary" or the manner in which the warden is to make these items available. Because the regulation leaves implementation decisions to the warden's judgment, the decision to provide inmates with razor blades meets the first condition of the discretionary function exception.
Moreover, the decision as to whether to make razor blades available to inmates for shaving is, as plaintiff acknowledges in his complaint, a security decision, and implicates many of the same policy considerations as the decisions of how to house and whether to monitor particular inmates, including the inmate safety, general prison security, the interests of inmates and the institution in maintaining good standards of hygiene, and the effective use of limited resources (Menifee Dec. ¶ 7). Therefore, under the discretionary function exception, this Court lacks subject matter jurisdiction over plaintiffs claim.
III. Conclusion
For the foregoing reasons, the Complaint is dismissed in its entirety. The Clerk of Court is directed to mark this matter as closed.