597, 17 L. Ed. 2d 448 (1966); Cohen v. United States, 252 F. Supp. 679 (N.D. Ga., 1966). Plaintiff is required to demonstrate by a preponderance of the evidence that certain negligent acts have taken place and as a result, he was injured. In this respect plaintiff has failed to sustain his burden of proof. Under the facts and circumstances of the instant action, negligence cannot be inferred from the event itself.
7. The judgment exercised by correctional officers Laird and Ashworth admittedly involved certain risks, but it cannot be characterized as negligent. Their judgment involved the very type of "calculated risks" discussed in Fleishour, supra, which must be exercised daily by Bureau of Prisons supervisory personnel. The court in Fleishour, while recognizing that from time to time certain efforts on the part of correctional officers to encourage rehabilitation and responsible conduct by prisoners inevitably "backfire", observed ". . . [that the] standard practice in modern penal institutions is to take calculated risks in various aspects of prison life, housing, work, recreation, religious worship [etc.], so that prisoners may learn to get along with other persons as part of the rehabilitation process." 244 F. Supp. 762, 767.
Complete isolation would be the only certain method to insure against prison episodes of the type presented herein; and complete isolation would not only be physically very difficult, if not impossible, but also least likely to induce positive attitudes in and the rehabilitation of persons so treated. As stated by the Fourth Circuit in Johnson v. United States, supra, ". . . demands of effective penal administration and rehabilitation may afford prisoners less than absolute security from harm by other inmates."
It might be noted, in addition to the recognized negative "fatal effect" on rehabilitation resultant from unnecessary confinements in segregation, that complete isolation for lengthy sentences in light of penology practices today could raise grave constitutional issues of cruel and unusual punishment and due process of law. In any event, the evidence and testimony presented in the instant action clearly support a finding that the decision not to isolate inmate Foster was reasonable and appropriate exercise of discretion, and entirely consistent with accepted penal practices.
8. Plaintiff failed to sustain his burden of proof with respect to his second theory of negligence; i.e., "that the institutional officers were negligent in permitting Foster to have access to a flammable liquid." As stated by the Supreme Court in Muniz, supra, federal correctional officers are not insurers of inmate safety. Further, this is not a question of res ipsa loquitur. Plaintiff is under a burden of proving by a preponderance of the evidence that certain negligent acts took place as the result of which this situation occurred. The Milan policies with regard to control of flammables and detection of contraband were reasonable, and there has been no showing of any negligent acts on the part of the United States. We cannot infer negligence from the act itself.
9. Plaintiff has failed to establish by a preponderance of the evidence that defendant was negligent in any respect.
10. Judgment must therefore be entered for the defendant.
11. As the Court has found that plaintiff has failed to establish negligence on the part of defendant, its agents, or employees, it need not reach the issues raised by defendant's affirmative defenses, that plaintiff was guilty of assaultive and aggressive behavior which proximately resulted in his injuries.
The foregoing shall constitute findings of fact and conclusions of law pursuant to Federal Rules of Civil Procedure 52(a).
John H. Pratt United States District Court Judge
This action came on for trial before the Court, Honorable John H. Pratt, District Judge, presiding, and the issues having been duly tried and a decision having been duly rendered,
It is Ordered and Adjudged, that the plaintiff take nothing, that the action be dismissed on the merits and that judgment be and the same hereby is entered in favor of the defendant, United States of America, against plaintiff Willie B. Williams, Jr.
JAMES F. DAVEY, CLERK OF COURT