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July 25, 1986


The opinion of the court was delivered by: GASCH


 This case stems from the murders of two District of Columbia ("D.C.") criminal offenders at the hands of other prisoners in two separate incidents at the United States Prison at Marion, Illinois ("USP-Marion"). The complaints state that prisoner James Anthony Rice died on September 11, 1985, after being beaten and stomped upon by a group of fellow inmates, and that prisoner James Robert Lorick died on June 5, 1985, after being stabbed by a fellow inmate. His attacker wielded a long knife fashioned from a ladle stolen from the prison kitchen and, according to the complaint, apparently hidden for over a year. The attack followed by one day a violent and public dispute between Mr. Lorick and his attacker, but prison authorities allegedly made no note of it nor took any action to prevent the two from having further contact. The parents of both inmates, personally and as the personal representatives of their estates, brought wrongful death and survivor actions against the U.S. Bureau of Prisons, its director Norman Carlson, the District of Columbia, Mayor Marion Barry and the District of Columbia Director of Corrections, James F. Palmer, raising common law tort claims as well as Federal Tort Claims and claims asserting violation of the decedents' constitutional rights.

 USP-Marion houses the federal system's most intractable inmates, and conditions there have been the subject of close oversight by the Bureau of Prisons and Congress. It has been on permanent "lockdown" since October, 1983, because of the murder of two guards. The lockdown involves frequent strip searches and rectal examinations, the requirement that prisoners wear leg irons and handcuffs when moving outside their cellblocks, and other extreme measures. See Bruscino v. Carlson, No. CV84-4320, Memorandum of Magis. Kenneth J. Meyers (S.D. Ill. Aug. 15, 1985). As a result of these restrictive measures, consultants hired by the House Judiciary Committee reported "that the present and immediate future at Marion holds serious risks for injury or worse for inmates and officers." The United States Penitentiary, Marion Illinois, Consultants' Report, submitted to Committee on the Judiciary, House of Representatives, 98th Cong., 2d Sess., Dec. 1984, at 19.

 In their complaints, plaintiffs allege that the Bureau of Prisons ("BOP") has created a special cadre of guards selected from other federal facilities, known as the "A-Team", to maintain order at Marion. This unit and groups of guards known as Special Operation Response Teams are alleged to frequently whip or beat prisoners. Plaintiffs also allege the guards have a policy of encouraging racial tension among the prisoners as a method of maintaining discipline and control. These practices, plaintiffs contend, have caused the level of inmate rage and violence to rise.

 The defendants all filed motions to dismiss or for summary judgment based on a variety of legal theories. Because the motions in both cases raise identical issues, the cases were consolidated for consideration of pretrial matters. In considering these motions, this Court is held to a stringent standard: a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiffs can prove no set of facts that would entitle them to relief. In passing on the motion, the Court must for now accept as true the well-pleaded factual allegations contained in the complaints. Phillips v. Bureau of Prisons, 192 U.S. App. D.C. 357, 591 F.2d 966, 968-69 (D.C. Cir. 1979), and cases cited therein. With this in mind, the motions will be considered in turn.


 The federal government has a duty of care established in 18 U.S.C. § 4042 to exercise ordinary diligence to keep prisoners housed in federal facilities safe and free from harm. United States v. Muniz, 374 U.S. 150, 164-65, 10 L. Ed. 2d 805, 83 S. Ct. 1850 (1963); Cowart v. United States, 617 F.2d 112, 116 (5th Cir.), cert. denied, 449 U.S. 903, 66 L. Ed. 2d 134, 101 S. Ct. 275 (1980). Similarly, the District of Columbia owes a duty of care to inmates housed in D.C. facilities, such as Lorton Reformatory, under D.C. Code § 24-442. Doe v. District of Columbia, 225 U.S. App. D.C. 225, 697 F.2d 1115, 1117 & n.1 (D.C. Cir. 1983).

 The motion by the D.C. defendants is based on this simple premise: once a D.C. offender is confined to a federal facility, the federal government and not the District of Columbia has the duty to safeguard the inmate. Therefore, their duty to decedents ended upon their transfer to USP-Marion.

 Plaintiffs reply that D.C. Corrections officials have a "duty not to place or abandon [an inmate] in an inherently dangerous institution, known to pose a threat to life and limb." Pltfs.' Memorandum in Opposition to D.C. Defs.' Motion to Dismiss, p. 6. They further contend D.C. officials maintain a policy of operating D.C.'s own prisons in an overcrowded condition in violation of the Constitution, and a policy of using the threat of transfer to USP-Marion to impose discipline in D.C. facilities. As a result of those policies, plaintiffs allege decedents were transferred to a facility that D.C. officials knew or should have known was dangerous. Thus, plaintiffs' theory of liability rests on the D.C. defendants' role in the transfer of decedents to USP-Marion, and not on a duty owed to protect them while there.

 Defendants argue that District of Columbia officials may never be liable for injuries suffered by a D.C. inmate due to transfer from a D.C. facility. They rely on District of Columbia v. Cooper, 483 A.2d 317 (D.C. App. 1984). Cooper was shot by another inmate at a D.C. prison, and thereafter was transferred to a federal facility at Terre Haute, Indiana, to protect him from his assailant. He sued to recover, inter alia, for psychological damages he suffered due to the transfer. The District of Columbia Court of Appeals held that Cooper could not recover on that basis:

Cooper had no legally recognized interest in remaining at Lorton Reformatory. Under D.C. Code § 24-425 (1981), persons convicted of crimes in the District of Columbia are committed to the custody of the Attorney General, who may "order the transfer of any such person from one institution to another if in his judgment, it shall be for the well-being of the prisoner or relieve overcrowding or unhealthful conditions in the institution where such prisoner is confined, or for other reasons." This authority is "clear and apparently limitless." Curry-Bey v. Jackson, 422 F. Supp. 926, 932 (D.D.C. 1976). Obviously, as long as section 24-425 is in the Code, a District of Columbia prisoner can have no legitimate expectation that he will remain at Lorton throughout his term. Without such an expectation, a prisoner has no interest protected by the Due Process Clause from summary deprivation. Thus the courts have held that a District of Columbia prisoner has no due process right to a hearing before being transferred to another prison. Since a prisoner's interest in remaining at Lorton is not even protected against intentional invasion, a fortiori the law will not protect it from negligent invasion. . . .
The District owed Cooper no duty to keep him at Lorton and thus it could not be liable in damages for any injuries resulting from his transfer to Terre Haute.

 Id. at 322 (citations omitted).

 Cooper may be distinguished as applied to the allegations in the case before this Court. In Cooper, the inmate's psychological injuries stemmed from being moved away from the District and his family. Id. at 320. The destination was irrelevant. Given the court's finding that he had no legally protected interest in remaining at Lorton, he could not recover for those injuries. In Ross and Lorick, however, the allegations rest on the choice of USP-Marion as the destination for the inmates, and not on transfer in general. It does not necessarily follow that, because officials have broad discretion to transfer an inmate without a hearing, they may never be held liable for that transfer.

 Thus, a claim for negligent transfer may be envisioned in the proper case. This, however, is not that case. Facts adduced at oral argument and confirmed in subsequent filings by plaintiffs show that decedent Lorick was transferred into the federal system at the request of D.C. officials after he seized hostages in an escape attempt from Lorton. However, D.C. officials did not request that he be transferred to any particular federal prison. See Letter to George L. Diffenbaucher from James W. Freeman, March 3, 1983 (filed July 17, 1986). Furthermore, the decision to request transfer for Mr. Lorick was reasonable and in accordance with established procedures, given the violence connected with his attempted escape. See Dept. of Corrections Order 4810.1A, supra, p. 2 (listing criteria for transfer). Decedent Rice was ordered placed in the federal system by the judge who sentenced him in 1973. D.C. Defs. Exh. A. He was incarcerated at the federal prison in Leavenworth, Kansas just prior to transfer to USP-Marion. These facts show that D.C. officials had nothing to do with the choice of USP-Marion in either case. Therefore, in light of the Court's authority under Fed. R. Civ. P. 12(b)(6) to treat a motion to dismiss for failure to state a claim as one for summary judgment where matters extrinsic to the pleadings are before the Court, the Court will enter summary judgment in favor of the D.C. defendants.


 Defendant Norman Carlson, director of the U.S. Bureau of Prisons, moves to dismiss or for summary judgment on the identical counts asserted against him in both the Ross and Lorick complaints. In Count IV, plaintiffs seek to hold Director Carlson liable for tortious invasion of decedents' constitutional rights under the fifth and eighth amendments. See Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. ...

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