Mathison v. USA

Filing 52

ORDER. ORDERED that the Objection to Order by Magistrate Judge (Doc 45) 47 is OVERRULED and the Recommendation of United States Magistrate Judge 33 is ACCEPTED. ORDERED that the United States Motion to Dismiss 21 filed by defendant the United States of America is DENIED by Judge Philip A. Brimmer on 02/24/14.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer

Civil Action No. 13-cv-00110-PAB-BNB
EUGENE H. MATHISON,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

ORDER

This matter is before the Court on the Recommendation of United States
Magistrate Judge [Docket No. 33]. The magistrate judge recommends that the Court
deny the United States’ Motion to Dismiss [Docket No. 21] filed by defendant United
States of America (“United States”). On November 12, 2013, defendant filed timely
objections [Docket No. 38] to the Recommendation. Therefore, the Court will
“determine de novo any part of the magistrate judge’s disposition that has been
properly objected to.” Fed. R. Civ. P. 72(b)(3).
Underlying facts are set forth in the Recommendation and will not be restated
here. See Docket No. 33 at 2-4. Defendant objects to the magistrate judge’s finding
that the “discretionary function” exception to the Federal Tort Claims Act (“FTCA”), see
28 U.S.C. § 1346(b), does not apply to the conduct alleged by plaintiff Eugene H.
Mathison. Docket No. 38.
The FTCA waives the United States’ sovereign immunity for “personal injury . . .

caused by the negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or employment.” 28 U.S.C.
§ 1346(b). The waiver of immunity does not cover the “failure to exercise or perform a
discretionary function or duty on the part of a federal agency or an employee of the
Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a).
A government employee’s decision falls within this exception if it (1) “involv[es] an
element of judgment or choice” and (2) is “based on considerations of public policy.”
United States v. Gaubert, 499 U.S. 315, 322-23 (1991) (quoting Berkovitz by Berkovitz
v. United States, 486 U.S. 531, 536-37 (1988)). This exception is “designed to protect
policymaking by the executive and legislative branches of government from judicial
second-guessing.” Garcia v. United States Air Force, 533 F.3d 1170, 1176 (10th Cir.
2008) (internal citations omitted).
In determining whether a decision implicates public policy and is therefore the
“kind that the discretionary function exception was designed to shield,” see Kiehn v.
United States, 984 F.2d 1100, 1103 (10th Cir. 1993), courts “do not consider the
employee’s subjective intent in exercising the discretion conferred by statute or
regulation, but [focus] on the nature of the actions taken and on whether they are
susceptible to policy analysis.” Garcia, 533 F.3d at 1176 (internal citations omitted).
“Discretionary conduct is not confined to the policy or planning level.” Gaubert, 499
U.S. at 325. Rather, day-to-day management of an agency or institution “regularly
requires judgment as to which of a range of permissible courses is the wisest.” Id.
However, “[n]ot all choices come within the exception.” Figueroa v. United States, 64

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F. Supp. 2d 1125, 1131-32 (D. Utah 1999) (emphasis in original). At times, the “facts of
the specific case may overcome the presumption to which the government is entitled
under Gaubert” where it is “obvious that a decision implicates none of the public policies
that ordinarily inform an agency’s decisionmaking.” Elder v. United States, 312 F.3d
1172, 1182 (10th Cir. 2002).
For example, in Duke v. Dept. of Agriculture, 131 F.3d 1407, 1410-11 (10th Cir.
1997), the court found that “permit[ting] the government to argue . . . that decisions–or
nondecisions–that involve choice and any hint of policy concerns are discretionary”
would “allow the exception to swallow the FTCA’s sweeping waiver of sovereign
immunity.” (quoting Cope v. Scott, 45 F.3d 445, 448-49 (D.C. Cir. 1995)) (“One of the
problems . . . is that nearly every governmental action is, to some extent, subject to
policy analysis–to some argument that it was influenced by economics or the like.”). In
Duke, plaintiff challenged the Department of Agriculture’s failure to post signs warning
of falling rocks at a campsite, despite the government’s knowledge that the rocks posed
a threat to campers. Id. at 1410, 1412. The court found that a “warning sign or a sign
prohibiting camping at the site because of the danger would cost little” and that the
record contained “no evidence . . . of any social or political justification.” Id. at 1412.
Accordingly, the court held that the discretionary function exception did not apply. See
also Boyd v. United States ex rel. U.S. Army, Corps of Eng’rs, 881 F.2d 895, 898 (10th
Cir. 1989) (the government’s “alleged failure to warn swimmers of dangerous conditions
in a popular swimming area does not implicate any social, economic, or political policy
judgments with which the discretionary function exception properly is concerned”).

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The Bureau of Prisons’ October 2007 Program Statement on occupational safety
provides that:
Noise assessments and hearing conservation programs are per the OSHA
Occupational Noise Exposure regulation, 29 C.F.R. 1910 Subpart G. The
Safety Manager conducts an institution-wide survey to determine high-noise
areas and operations, as defined in the regulation. HSD’s Patient Care
Program Statement outlines baseline and annual audiometric testing, per 29
C.F.R. 1910 Subpart G.
Workers conducting operations that exhibit greater than 90 decibels (A
scale), for an 8-hour time-weighted average use hearing protection. . . .
A noise level survey is conducted per ACA standards to ensure that housing
areas do not have excessive noise sources (e.g., noisy pipes, fans, ice
machines, or mechanical rooms) close to inmate sleeping areas.
Docket No. 22 at 13, available at http://www.bop.gov/DataSource/execute/dsPolicyLoc.
A separate Program Statement provides that:
Whenever individual occupational noise exposure equals or exceeds the
eight-hour time weighted average (TWA) sound level of 85 decibels (and
above) measured on the “A” scale (dBA), the institution will initiate a hearing
conservation program. At a minimum, the program will meet the
requirements of paragraphs (c) through (o) of 29 C.F.R. Part 1910.95.1
Docket No. 22-1 at 2.
The parties do not dispute that these Program Statements apply only to
occupational noise levels and thus that prison officials had discretion to set the volume
level of the speakers placed “[a]long the walkways leading to both sides of the Food
Service chow hall, in front of the law library, Multipurpose room and gym on one side
and in front of the Commissary, laundry, barber shop, phone room and medical.”
Docket No. 1 at 10; see Docket No. 39 at 2. The resolution of the United States’ motion

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The Federal Regulations cited in these Program Statements govern
occupational noise exposure.
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to dismiss thus turns on the second prong of the Berkovitz test: whether the challenged
decisions are of the kind susceptible to policy analysis.
The magistrate judge found that
A decision to increase the volume [of the public address system speakers]
to levels which “physically hurt one’s ears, even when hands were put over
the ears” is not susceptible to policy analysis. Moreover, the defendant’s
budgetary argument is belied by the fact that the volume was subsequently
reduced to an acceptable level–apparently at no cost.
Docket No. 33 at 9. Defendant objects to this finding, arguing that “[w]hen Plaintiff’s
claims are examined discretely, they are each susceptible to policy analysis and
thereby encompassed within the discretionary function exception.” Docket No. 38 at 7.
First, defendant argues that deciding to increase the volume on the speakers implicates
prison safety, insofar as prison staff must ensure that all inmates can hear the
announcements, and budgetary concerns, insofar as increasing the volume was an
alternative to repairing or replacing the existing system. Docket No. 38 at 4. Second,
defendant argues that the placement of speakers implicates the same policy concerns.
Id. at 4-5. Third, defendant argues that the delayed response to plaintiff’s complaints
implicates personnel and budgetary decisions in terms of allocating staff time to
competing responsibilities and determining how best to resolve the problem. Id. at 5.
Defendant argues that the fact that the “ultimate solution merely involved turning down
the volume of the system does not mean it was divorced from policy considerations,
particularly given the volume was increased initially due to a safety concern that all
inmates and staff were not able to hear safety-critical announcements.” Id.
Plaintiff alleges that the volume on the speakers was increased in the “early part

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of 2011,” Docket No. 1 at 6, and remained elevated above safe levels until mid-June
2011. Id. at 11. He alleges that he reported the problem verbally “early in 2011,” and,
“[a]fter repeated failures to accomplish any reduction in the unsafe volume,” filed written
complaints on May 24, 2011 and June 2, 2011. Id. He further alleges that, in June
2011, Warden Blake R. Davis
finally looked into the matter and sent the Safety Manager to check the dBs
and determined that Plaintiff was correct in his claims of unsafe sound
exposure. On June 10, 2011, Counselor Cedeno asked Plaintiff if the
reduction to safe limits was sufficient to informally resolve the negligence
complaint. He said that it was and signed off on the BP-9.
Id. The United States appears to concede that the “ultimate solution merely involved
turning down the volume of the system.” Docket No. 38 at 5. Thus, the facts of this
case–namely, that prison officials increased the volume to unsafe levels for at least
several months, despite plaintiff’s repeated complaints, until the safety manager
investigated and ordered prison officials to lower the volume, which they did–“overcome
the presumption to which the government is entitled under Gaubert.” See Elder, 312
F.3d at 1182. The United States does not dispute that this solution came at no
additional cost to the prison. Nor does the United States explain why safety concerns
necessitated increasing the volume of the speakers in early 2011, but permitted
lowering the volume in June 2011 without making any other changes to the public
address system.
The government’s arguments demonstrate that “nearly every governmental
action is, to some extent, subject to policy analysis–to some argument that it was
influenced by economics or the like.” See Duke, 131 F.3d at 1410. Shielding the
actions alleged here from liability would “allow the exception to swallow the FTCA’s
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sweeping waiver of sovereign immunity.” Id. at 1411.
The Court agrees with the magistrate judge’s finding that the “act of increasing
the volume of the public speaker system to levels that physically hurt the inmates’ ears
does not implicate any public policy considerations.” Docket No. 33 at 9. This finding
corresponds specifically to plaintiff’s first claim, see Docket No. 1 at 6, and thus,
contrary to the United States’ argument, a different result is not compelled by
considering plaintiff’s claims separately. See Docket No. 38 at 4. In this case, the
decision to set the volume of the public address system to an unsafe level, in addition
to the decision to maintain the volume at that level for several months, despite inmate
complaints, when the “solution” to the problem “merely involved turning down the
volume of the system,” see Docket No. 38 at 5, is not the “kind [of decision] that the
discretionary function exception was designed to shield,” see Kiehn, 984 F.2d at 1103;
see also Gotha v. United States, 115 F.3d 176, 181-82 (3d Cir. 1997) (U.S. Navy’s
failure to “provide routine safeguards on a footpath leading to a structure under its
control” is “not the kind of conduct that can be said to be grounded in the policy of the
regulatory regime.”) (internal citation omitted). Wherefore, it is
ORDERED that the Objection to Order by Magistrate Judge (Doc 45) [Docket
No. 47] is OVERRULED and the Recommendation of United States Magistrate Judge
[Docket No. 33] is ACCEPTED. It is further

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ORDERED that the United States’ Motion to Dismiss [Docket No. 21] filed by
defendant the United States of America is DENIED.

DATED February 24, 2014.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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