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October 11, 1974


The opinion of the court was delivered by: PRATT

 This suit was instituted by plaintiff Willie B. Williams pursuant to the provisions of the Federal Tort Claims Act, 28 U.S.C. Section 1346(b), for injuries received as a result of an assault by a fellow inmate, William Foster, on June 26, 1971. At the time of the assault plaintiff and Foster were inmates at the United States Penitentiary, Milan, Michigan. In the early morning hours of that date, approximately 5:00 a.m., plaintiff was assaulted by inmate Foster who doused plaintiff with a cup of gasoline and then ignited the flammable with a match.

 Plaintiff's theory of negligence is that the prison officials at Milan failed to adequately provide for his safety and protection under the provisions of Section 4042 of Title 18, United States Code. Specifically, plaintiff alleges that defendant's employees were negligent in the following respects:

1. That the institutional officers were aware of hostilities existing between plaintiff Williams and the assailant Foster, and that said employees permitted the two inmates to remain in the same dormitory without restriction; and, that such inaction on the part of the federal officers directly resulted in the assault perpetrated on plaintiff by Foster.
2. That the institutional officers were negligent in permitting Foster to have access to a flammable liquid.

 With respect to both allegations, the Government denied any acts of negligence or omission on the part of its employees and asserted that its correctional officers at all times exercised care consistent with standard penal practices in the keeping of both prisoners. In addition, the Government contended that plaintiff had, on occasions prior to the assault on June 26, attempted to pressure inmate Foster into participating in homosexual acts with Williams; that Foster resisted such advances by Williams; that on Friday morning, June 25, Williams assaulted Foster, and that as a result of such assault and physical threats to Foster's life and body, Williams in fact intimidated and coerced Foster into participating in a sex act; and that in retaliation to Williams' sexual attack, Foster assaulted Williams in his sleep on the morning of June 26, 1971. Defendant argued that Foster's retaliation was a most foreseeable consequence of Williams' aggressive and provocative activities, and that any injury incurred as a result of his assaultive behavior was a proximate and contributing factor to his injury and should thereby preclude any recovery by plaintiff.

 After hearing the testimony of the parties and examining the exhibits, the Court makes the following Findings of Fact and Conclusions of Law:


 1. The Federal Correctional Institution at Milan, Michigan is a medium security prison with a program especially created to meet the needs of youthful offenders. The age range of inmates confined at Milan is between 18 and 23, with some exceptions made for young persons of ages 24 to 26 who are sentenced pursuant to the provisions of the Youth Corrections Act. Housing is primarily open dormitory.

 2. On Thursday evening, June 24, at approximately 7:30 p.m. inmates Foster and Williams were observed arguing in the Milan gym annex by correctional employees W. A. Wade and H. E. Bickford. Foster was holding a six-foot weight-lifting bar in his hands, gesturing and threatening to strike Williams. The above-named correctional personnel intervened and subdued the two inmates prior to any exchange of blows. Mr. Bickford, Milan's Recreational Instructor, instructed inmate Williams to report forthwith to the acting Watch Supervisor for that evening, Lt. Norman C. Laird.

 3. Both men involved went to Lt. Laird's office and he discussed with them the basis of their problems. Foster claimed that the provocation for the subject incident was Williams' "strong arm" attempts to intimidate Foster into participating in homosexual acts with Williams. Williams at that time categorically denied Foster's allegations made in the presence of Lt. Laird, and furthermore, during trial, testified that he was only casually acquainted with Mr. Foster at the time the incident in the gym occurred.

 4. After listening to each inmate's account, Lt. Laird counseled Foster and Williams concerning their mutual responsibilities to learn to settle differences without resorting to fighting. He advised both men that incidents such as the one that had taken place in the gym would not be tolerated at Milan. The men were warned that if they could not resolve their differences then and there, they would both be taken from the general inmate population and locked in segregation.

 5. Both inmates assured Lt. Laird that as far as they were concerned the incident in the gym "was forgotten" and each assured the lieutenant that there would be no further problems between them. Upon receiving these assurances and determining to his satisfaction that the men were sincere, Lt. Laird formed a judgment that it was a proper procedure for segregation not to be imposed and he instructed both men to return to their dormitory.

 6. Lt. Laird considered segregation almost a remedy of last resort that cannot be applied with effectiveness for periods of more than ten days. He also believed that segregation would not have prevented a future confrontation between Foster and Williams if the two men were determined to resolve their differences in a violent manner.

 7. Both inmates were housed in the B-2 dormitory. Immediately following his meeting with Foster and Williams, Lt. Laird telephonically informed correctional officer D.E. Goddard, the officer assigned supervisory responsibility for the B-2 dormitory on Thursday evening, that the two men had been involved in an ...

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