The opinion of the court was delivered by: Roger W. Titus United States District Judge
Plaintiffs Teresa Sledge and Andrea Henson are the
personal representatives of the estate of Rico Woodland, a/k/a Rico
Sledge, and Dianne Sledge, his surviving mother, a statutory wrongful
death beneficiary suing on her own behalf and on behalf of his
children Angelic Higgins, Andrea Henson, and Eric Harper.*fn1
They allege that the United States Bureau of Prisons ("BOP")
negligently failed to detect and stop the assault of Woodland
inflicted by another prisoner, which resulted in his hospitalization
and his death. On September 7, 2007, Plaintiffs filed a six-count
Third Amended Complaint against the BOP asserting claims for
(1) Pennsylvania personal injury, (2) Pennsylvania wrongful death,
(3) Missouri personal injury, (4) Missouri wrongful death, (5)
Missouri intentional/negligent infliction of emotional distress, and
(6) Missouri intentional infliction of emotional distress. Doc. No.
22-2. On July 13, 2010, this Court entered a memorandum opinion and
order that granted in part and denied in part BOP's earlier motion to
dismiss. Doc. Nos. 41, 42.
The Court dismissed Counts III and IV and ordered "limited jurisdictional discovery concerning Counts I, II, V, and VI, to be strictly confined to establishing whether there is any evidence that: (i) mandatory directives exist, (ii) [BOP] employees at FCI-Allenwood and USMC-Springfield violated any mandatory directives; and (iii) BOP employees exercised discretionary judgments not fraught with public policy considerations with the October 15, 2002 attack and November 2005 visit." Doc. No. 42 at 1-2.
BOP has moved to dismiss the remaining claims based on the Federal Tort Claims Act's discretionary function exception. On May 7, 2012, this Court held a hearing on the motion. For the reasons discussed below, BOP's motion will be granted.
i.Physical Description of Unit 3-A
FCI-Allenwood has four buildings that house general population prisoners, each of which is divided into an A-side and a B-side. Lyons Dep. 114:14-20. Each unit has a triangle shape with two levels of inmate cells running along the perimeter. Id. 96:14-16, 97:9-11; see also Doc. No. 69 Ex. 8. In the center of the unit is the "common area," which can be viewed from all of the rows of cells. Lyons Dep. 99:14-20; see also Doc. No. 67 Ex. 8. The entrance to each unit is comprised of two doors, an outer and an inner. The space between the doors, approximately seven to ten feet, is referred to as the sally port. Lyons Dep. 96:18-20.
The open-air area outside of the housing units and other buildings, which is still located inside the prison's secure perimeter, is referred to as the compound. Id. at 117:5-118:20. There is a walkway outside of each housing unit that leads to the center of the compound and connects with sidewalks from the other housing buildings. Id. at 116:4-11. The walkways are considered to be part of the compound, and thus, are not part of the area of the housing unit. Id. at 117:5-10
On October 15, 2002, approximately 156 inmates lived in Unit 3-A. Sweithelm Depo. 159:7-9. Woodland's cell, number 109, was on the lower level of the Unit, approximately halfway down the row of cells that forms the hypotenuse of the Unit's triangle. Id. at 74: 22-24; Doc. No. 69 Ex. 8. Units 3-A and 3-B were the only two designated nonsmoking units in FCI-Allenwood. Doc. No. 69 Ex. 2 at 3.
Correctional officers at FCI-Allenwood are subject to following specific prison directives and policies: (1) Program Statements, (2) Institution Supplements, and (3) Post Orders. Yates Depo. 25:11-15. Program Statements are issued by the BOP and cover all areas of responsibility for the agency, including inmate accountability, discipline, and visitation. Lyons Depo. 27:17-28:6. Institutional Supplements adapt the general Program Statements to a particular institution. Id. at 25:4-20. Post Orders apply to the specific position to which an officer is assigned. Id. at 23:3-24:21. "Each post order contains the following sections: (1) General Post Orders, which are guidelines applicable to any post in the institution; (2) Specific Post Orders, which are specific to a post and outline the timing of movements by inmates, equipment needed on the post, and approximate timeframes that certain procedures or activities should occur; and (3) Special Instructions, which describe a correctional staff member's responsibilities and expectations while serving on a particular post." Doc. No. 66 at 4.
The General Post Orders of FCI-Allenwood provide in the introduction that the information contained is "not expected . . . to cover every situation that a staff member will be confronted with . . . due in part to the fact that each situation has unique characteristics and may place extraordinary demands on staff and the institution itself." Doc. No. 66, Ex. C at BOP 761. The General Post Orders state that "[e]ach employee . . . is responsible for the custody, control, supervision, and accountability of all inmates in their area of responsibility and supervision." Id. at BOP 764-65; see also id. at BOP 798 ("In order to maintain inmate accountability, constant and direct supervision of all inmates is required. Supervision, when used correctly, assists staff in maintaining order in their respective areas."). The General Post Order requires that "[a]ll officers are to maintain security and control of their area," which is "accomplished in part by making patrols or rounds through [their] respective area." Id. at BOP 766.
The Post Orders provide in several sections that once an individual is on a post, he is not permitted to leave until properly relieved or instructed to do so by his supervisor. See, e.g., id. at BOP 770 ("Once on a post, staff will not leave until properly relieved or instructed to do so by the Shift Lieutenant. Should a relief be needed, the Lieutenant's Office will be notified. Staff are advised that smoking is authorized only in designated areas.") (General Post Order); id. at BOP 802 ("Staff are not to leave their post without being properly relieved or instructed to do so by the Shift Lieutenant.") (General Post Order); Doc. No. 67 Ex. 10 ("Staff will not leave a post unless properly relieved.") (Specific Instruction).
Inmates at FCI-Allenwood are not permitted free access to all areas in the institution. They are generally only allowed to move across the compound from one area to another during "controlled movements," which occur at designated times of the day during ten minute intervals. Lyons Depo. 132:4-21. During a controlled movement, a unit officer is required to "continuously monitor inmate traffic within and outside of the units." Doc. No. 66, Ex. C at BOP 811-12. There is no directive that dictates exactly where a housing unit officer should position himself or herself during a controlled move, however, an officer usually attempts to observe the inmates and look for anyone who may attempt to improperly enter the housing unit. See, e.g., Womeldorf Depo. 83:16-22 (stating that monitoring inmate movement involves "[j]ust being outside your office, standing in the common area, standing at your door during a move"); id. at 246:7-15 (maintaining that "it's just sound correctional judgment and technique to put yourself in a position whether you can see the most amount of people at any one time"); Lyons Depo. 140:5-10 (describing that an officer during a controlled move would typically observe inmates "coming in and out of the unit" and that "he can do that from within inside [sic], standing right in the sally port, or standing outside on the sidewalk").
The Specific Post Orders for Unit 3A Officers provide that a 10-minute controlled move is normally announced after the close of the dining hall after a meal is served. Doc. No. 66 Ex. G at BOP 883. After the controlled move is complete, the unit officer is directed to conduct a census of the inmates in the Unit. Id.; Ex. H, Institution Supp. ALM 5511.06(C) at 5. The census count lasts approximately forty-five minutes and is "a frequent, but irregular count conducted to ensure inmates are present in their assigned areas." Gen. Post Orders at BOP 768. The irregularity of the census count attempts to prevent inmates from growing used to a routine. Lyons Depo. 335:7-16.
iii.October 15, 2002 Attack
At approximately 12:00 p.m. on October 15, 2002, Officer Richard Sweithelm ("Sweithelm"), the assigned Unit Officer for housing unit 3-A at FCI-Allenwood assumed his post. Sweithelm Depo. 63:19-21. Sweithelm, the only correctional officer responsible for the unit at the time, stood on the sidewalk immediately outside the unit for the entirety of the controlled move that began at approximately 12:37 p.m. Id. at 168:9-12. He maintains that while outside he was "smoking a cigarettes [sic] and observing the outside move" while standing approximately ten or fifteen feet from the exterior doors. Id. 168: 7-17. While outside, he was facing away from Unit 3-A "towards to compound." Id. 168: 19-20.
While Sweithelm stood outside, Woodland was brutally attacked by inmate Jesse L. Sparks inside cell 109 of Unit 3-A. See Third Amend. Compl. ¶ 9-11. Sparks repeatedly kicked Woodland in the upper torso and head with boots, Lyons Decl. ¶ 7, while another inmate, Ishmael Ford-Bey, held the door of cell 109 closed in order to prevent escape.*fn2 Id.; SIS Report at 5. A third inmate, Preston Bryant, positioned the door of cell 107 at an angle to interfere with the view of the surveillance camera on that range. Lyons Decl. ¶ 8; SIS Report at 5-6. The exact duration of the attack is unknown, however, Woodland and Sparks entered cell 109 at approximately 12:37 p.m., Lyons Depo. 225: 7-13, and Sparks exited cell 109 at approximately 12:56 p.m. Lyons Decl. ¶ 7. Several inmates heard the attack taking place, but did nothing to intervene. SIS Report at 5, 8; Lyons Depo. 441:6-444:14, 444:20-445:7, 429:7-430:7.
Sweithelm returned to Unit 3-A at approximately 12:48 p.m at the conclusion of the ten-minute move. Lyons Tr. 467:21-468:16. When he returned to the Unit, inmate Preston Bryant approached Sweithelm, at approximately 12:50 p.m., and asked him to retrieve a broom from a locked storage room. SIS Report at 12. Sweithelm obtained a broom and began the census at approximately 12:52 p.m. Yates Depo. 217:1-218:4. Sweithelm found Woodland unresponsive in his cell at approximately 1:05 p.m. Sweithelm Depo. 195:21-197:9. The assault left Woodland in a months-long coma, inflicted brain damage, left him without full use of his arms and legs, and caused mental distress. Third Am. Compl. ¶¶ 14-15.
After receiving medical treatment at various hospitals and institutions, Woodland was transferred to the United States Medical Center for Federal Prisoners in Springfield, Missouri ("USMCFP Springfield"). The following facts go to the claims of negligent and intentional infliction of emotional distress alleged by Plaintiffs that occurred when the Plaintiffs were unable to visit Woodland when they traveled to Missouri and attempted to see him.
i.Staffing, Policies, and Procedures
Each inmate at USMCFP Springfield is assigned to a unit that is staffed with a unit manager, case manager, counselor, and secretary. Banata Depo. 15:2-5. At the time of the Sledges' attempted visit, one case manager was assigned to each inmate. Id. at 16:19-23. Case managers are generally in contact with an inmate's family member, and there is no limitation on how often a family member may contact the case manager (assuming that a consent to release form was signed). Id. at 67:6-68:1. The duties and responsibilities at USMCFP Springfield are found in the BOP Program Statement and USMCFP Springfield Institution Supplements.
The BOP Program Statement notes that the BOP "encourages visiting by family, friends, and community groups to maintain the morale of the inmate." Doc. No. 63, Ex. O at 1. It directs the Warden to "develop procedures consistent with this rule to permit inmate visiting. The Warden may restrict inmate visiting when necessary to ensure the security and good order of the institution." Id. In accordance with the Program Statement, USMCFP Springfield developed an Institution Supplement to address visiting regulations. Id. Ex. P. Generally visits occur in the visiting room, but if the inmate is unable to go to the visiting room, which was the case for Woodland, the visit will occur at the inmate's bedside.
The Institution Supplement mandates that
Bedside visits must be prearranged by the inmate's unit team and approved by the Warden . . . . The inmate's Unit Manager will designate a member of his unit team to serve as supervising staff for the visit. Staff supervising beside visits in hospital wards must provide constant and immediate visual supervision of inmates and their visitors to prevent security violations.
Ex. P ¶ 14c(1),(4). The Supplement provides the following caveat: "While visiting is encouraged, visiting arrangements must be consistent with the security and good order of the institution, with staff resources available, and with the well being of the patient in mind." Ex. P ¶ 14c(6).
The procedures require visitors to contact the unit team in advance requesting approval from the Warden to arrange a bedside visit. Banta Depo. 179:13-181:11. After the visitor contacts the unit team, the inmate's case manager prepares a memorandum requesting approval for the bedside visit, which is then sent to the unit manager for approval. Id. at 95:19-97:20; 101:3-11. When deciding whether to approve a bedside visit, the unit manager will consider staff availability and the condition of the inmate, among other factors. Id. at 101:24-102:10. If medical staff does not object to the visit and the unit manager determines that staff is available, the unit manager will designate a member of the unit team to supervise the visit. Id. at 103:23-104:14.
After the unit manager completes his or her review, the memorandum is sent to the Warden who is the "approving authority" whose signature indicates approval of the visit. Id. at 106:17-18, 107:18-20. After the memorandum is signed, copies are "forwarded to the captain's office, front entrance, control center, the officer in charge of whatever unit the inmate is housed on,  the operations lieutenant, and the counselors" and a copy is placed in the inmate's file. Id. at 107:22-108:1, 110:19-21. Finally, the case manager would normally contact the inmate's visitors to let them know that they are approved, but there is no policy on whether or how to notify approved visitors. Id. at 111:4-23.
ii.Sledges' Attempted Bedside Visitation
The Mental Health Unit Manager at Springfield, by memorandum dated July 11, 2005, presented to the Warden a request by Dianna Sledge, Teresa Sledge, and Steven Sledge for approval of a beside visit with Woodland from 9:00 a.m. to 10:00 a.m. and from 1:00 p.m. to 2:00 p.m. on Saturday, July 16, 2005 and Sunday July 17, 2005. Doc. No. 63 Ex. Q. None of the Sledges came to visit that day despite receiving approval.*fn3 Id. Sledge Depo. 29:8-18.
On November 12, 2005, Dianne and Teresa Sledge arrived at USMCFP Springfield and requested a bedside visit with Woodland. Doc. No. 63 Ex. R. The parties dispute whether the Sledges had contacted staff for prior approval for the November visit. BOP maintains that there was no record of authorization for a bedside visit by the Sledges that day. Rinker Decl. ¶ 4. Crystal Rinker, the institutional duty officer on site that day, checked areas of the institution in an attempt to determine if the authorization form had somehow been misplaced; however, she could not find the preapproval paperwork necessary for a bedside visit. She then informed the Sledges that they could not visit Woodland because they had not received the Warden's prior approval to visit and because no unit team staff members were available to provide constant and immediate visual supervision as required by institution policy. Id.; Institutional Supplement, SPG-5267.07d ¶ 14(c)(1). BOP further asserts that a USMCFP Springfield employee offered to arrange a visit sometime during the next several days, but that the Sledges refused, and they did not return to the facility.
Teresa Sledge alleges that she arranged for the attorney working with the Sledges to contact Ms. Bennett to obtain approval for a November visit, Teresa Sledge Depo. 29:21-30:7, and that the case manager confirmed the visit. Id. at 54:22-24. However, ...