Bishop v. United States of America
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS, ECF NO. 26 . Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 4/13/2017. (afc) WRITTEN ORDER follows hearing held February 27, 2017. Minutes of hearing: ECF No. 31 . C ERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
Civ. No. 16-00248 JMS-KSC
DEFENDANT’S MOTION TO
DISMISS, ECF NO. 26
UNITED STATES OF AMERICA,
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS, ECF NO. 26
Plaintiff Benjamin Bishop (“Plaintiff” or “Bishop”) alleges that
fellow-inmate Michael Tanouye (“Tanouye”) attacked and beat him in his cell at
the Honolulu Federal Detention Center (“FDC”) soon after Tanouye was admitted
to the FDC. Plaintiff’s First Amended Complaint (“FAC”), filed under the Federal
Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (“FTCA”), claims that
Defendant United States of America (“Defendant” or “the government”)
negligently screened Tanouye during his admission, improperly placing a
dangerous or suicidal inmate with Plaintiff and causing Plaintiff’s injuries. ECF
The government moves under Federal Rule of Civil Procedure
12(b)(1) to dismiss the FAC, arguing that Plaintiff’s claims are barred by 28 U.S.C.
§ 2680(a), the discretionary function exception to the FTCA. 1 Based on the
following, Defendant’s Motion is GRANTED.
Plaintiff filed the November 21, 2016 FAC, ECF No. 24, pursuant to
leave granted by this court after the court dismissed the original complaint. ECF
No. 23. Addressing an FTCA pleading requirement, the FAC added detailed
jurisdictional allegations regarding Bureau of Prisons (“BOP”) policies or
regulations which Plaintiff contends create mandatory, non-discretionary, duties as
necessary to invoke the FTCA. See, e.g., Prescott v. United States, 973 F.2d 696,
701 (9th Cir. 1992) (“Only after a plaintiff has successfully invoked jurisdiction by
a pleading that facially alleges matters not excepted by § 2680 does the burden fall
on the government to prove the applicability of a specific provision of § 2680.”)
The government moves, in the alternative, under Rule 12(b)(6) to dismiss Plaintiff’s
claim that is based on suicide-prevention duties, arguing that harm to Plaintiff was not
foreseeable because such policies are meant to protect the suicidal inmate, and not third-parties
such as Plaintiff. Because the court grants the Motion based on the discretionary function
exception, it need not reach this alternative argument.
To that end, the FAC alleges the following relevant facts, which the
court generally assumes as true for purposes of a motion to dismiss (except where
such factual allegations are specifically challenged in a motion attacking subjectmatter jurisdiction). See, e.g., Young v. United States, 769 F.3d 1047, 1052 (9th
Cir. 2014) (reiterating in a discretionary-function exemption context that courts
“generally accept as true the factual allegations of Plaintiffs’ complaint”); Safe Air
for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (“In resolving a
factual attack on jurisdiction [under Rule 12(b)(1)] . . . [t]he court need not
presume the truthfulness of the plaintiff’s allegations.”) (citations omitted).
Tanouye is Arrested and Placed in Bishop’s Cell
On October 12, 2014, Bishop was an inmate at the FDC. FAC ¶ 10,
ECF No. 24.2 Allegedly, “[t]hat evening[,] a new prisoner, [a] very stocky and
strong 29-year old man, Michael Tanouye, was brought into Mr. Bishop’s cell and
Mr. Bishop was told to watch this prisoner as the prisoner was on suicide watch.”
Id. ¶ 11. 3 Bishop did not know that Tanouye “was having serious mental problems
and had attempted to rape a woman on an airplane flight to Japan.” Id. ¶ 12. “FBI
According to the BOP’s inmate locator, Plaintiff is currently incarcerated at the Federal
Correctional Institution in Allenwood, Pennsylvania. See https;//www.bop.gov/inmateloc (last
accessed April 5, 2017).
As explained below, Plaintiff now concedes (after conducting discovery into the issue)
that Tanouye was, in fact, not on suicide watch when placed in Plaintiff’s cell.
agents [had] arrested Michael Tanouye for interfering with a flight crew and
aggravated sexual assault aboard an aircraft.” Id. ¶ 14.
While en route to Japan, Tanouye “forced his way into a bathroom
and sexually assaulted a woman, according to an FBI affidavit.” Id. ¶ 15. “Flight
attendants and passengers told the FBI that a male passenger was injured while
struggling to subdue Tanouye.” Id. ¶ 21. Prior to that, “Tanouye was heard
shouting something incomprehensible and his mother told a flight attendant that he
suffers from depression and is on medication.” Id. ¶ 22. “After the incident,
Tanouye’s mother gave him a dose of his psychiatric medicine and he fell asleep.”
Id. ¶ 24.
The airplane returned to Honolulu after the caption heard that it took
three passengers to keep Tanouye calm. Id. ¶ 25. “Hawaii sheriff deputies took
Mr. Tanouye off the plane when it landed in Honolulu and FBI agents arrested him
and brought him to the FDC, where he was held pending arraignment.” Id. ¶ 26.
According to the FAC, “both the sheriff’s department and FBI were on notice that
Mr. Tanouye was seriously dangerous and deranged.” Id. ¶ 27. A Public Health
Service psychiatrist later explained to Bishop that Tanouye “was a paranoid
schizophrenic.” Id. ¶ 60.
BOP “Program Statements”
The FAC identifies two sets of BOP “program statements” that
Plaintiff alleges set forth relevant mandatory duties regarding (1) intake screening
of newly-admitted inmates; and (2) psychiatric and/or medical screening, and
The “Intake-Screening” Program Statement
First, the FAC emphasizes portions of BOP Program Statement
P5290.15, regarding “Intake Screening.” Id. ¶ 30 (“Statement P5290.15”).
Statement P5290.15 is based on 28 C.F.R. § 522.21, which provides:
(a) Except for such camps and other satellite facilities
where segregating a newly arrived inmate in detention is
not feasible, the Warden shall ensure that a newly arrived
inmate is cleared by the Medical Department and
provided a social interview by staff before assignment to
the general population.
(1) Immediately upon an inmate’s arrival, staff
shall interview the inmate to determine if there are nonmedical reasons for housing the inmate away from the
general population. Staff shall evaluate both the general
physical appearance and emotional condition of the
(2) Within 24 hours after an inmate’s arrival,
medical staff shall medically screen the inmate in
compliance with Bureau of Prisons’ medical procedures
“[A] BOP program statement is ‘an interpretative statement of position circulated
within [the] agency that serves to provide administrative guidance in applying a then existing
published rule.’” Cook v. Wiley, 208 F.3d 1314, 1317 (11th Cir. 2000) (quoting Pelissero v.
Thompson, 170 F.3d 442, 447 (4th Cir. 1999)).
to determine if there are medical reasons for housing the
inmate away from the general population or for
restricting temporary work assignments.
(3) Staff shall place recorded results of the intake
medical screening and the social interview in the
inmate’s central file.
Id. (emphases added). These regulatory provisions of § 522.21 are included within
In accordance with that regulation, Statement P5290.15 provides that
“before placing [an] inmate in the institution’s general population, staff shall
ensure that health, safety, and security standards delineated in this Program
Statement are met. Social and medical screening interviews are required to meet
these standards.” Statement P5290.15 ¶ 1, ECF No. 29-2. It has as its stated
objective that “[s]ocial and medical screening interviews will be conducted on all
inmates prior to their placement in general population.” Id. ¶ 3.
Statement P5290.15 includes several potentially applicable provisions.
Among these are:
Staff shall observe the physical appearance of the inmate
and interview each inmate prior to placement in general
If this is not possible, inmates are to be kept in detention
until completion of the medical clearance and social
interview. Each institution shall develop procedures for
processing commitments after regular working hours.
At camps and other satellite facilities, segregating a
newly arrived inmate in detention is often not feasible;
however, the Warden shall ensure that the inmate is
cleared by the Health Services Department and provided
a social interview by staff consistent with the
requirements of this Program Statement.
Id. ¶ 7.
The social interview is to be conducted in private (no
other inmates in area) by a Unit Manager, Correctional
Counselor, Case Manager, or other staff the Warden
designates who have been trained in intake screening.
The interviewer conducting the social interview must
have completed successfully the CIM Certification
Program prior to conducting the interview.
The interviewer shall also review SENTRY
information and the Inmate Central File or
Presentence Investigation Report (PSI), if
available, and make a decision whether the inmate
is suitable for placement in general population.
During the social intake screening process, the
interviewer shall review the PSI and the Inmate Central
File for any documentation indicating the inmate has a
history of sexually aggressive behavior or has recently
been the victim of a sexual assault.
In such cases, the interviewer shall immediately
forward a copy of the Intake Screening Form and
any other comments to Psychology Services for
appropriate follow-up and or assessment.
The intake screening procedures identified in this
Program Statement may be modified at the Warden’s
discretion for pretrial short-term (less than 48 hours)
inmates and court returns.
Ordinarily, modified intake screening procedures
would only be appropriate at Metropolitan
Correctional Centers, Metropolitan Detention
Centers or other institutions with a primary
mission of providing pretrial confinement.
Staff shall place particular emphasis on the Central
Inmate Monitoring status of the holdover, since,
ordinarily, an inmate may not be transported with or
confined with inmates from whom he or she is to be
To ensure that separatees are not housed together, staff
shall access the newly received inmate’s SENTRYgenerated Intake Screening form and thoroughly review
the CIM Clearance and Separatee Data to identify any
separatees currently housed in the institution. Staff may
also cross-check the names of separates with an
alphabetical list of all inmates in the institution.
Psychiatric Screening and Suicide Prevention Program
The FAC also sets forth intake-related provisions in two other
program statements -- Program Statement P6340.01, entitled “Psychiatric
Services” (“Statement P6340.1”) and Program Statement P5324.08, entitled
“Suicide Prevention Program” (“Statement P5324.08”). In particular, paragraph 9a
of Statement P6340.1 has a section regarding “Intake Screening” that provides:
a. Intake Screening. Staff performing intake screening
will assess and make appropriate referrals to a mental
health professional when an inmate:
Has a mental health designation;
Exhibits signs or symptoms consistent with a
possible mental disorder; or
Is on medication for treatment of a mental illness
Screening will be of sufficient detail to determine
appropriate housing for the inmate until a thorough
mental health evaluation can be completed.
FAC ¶ 31, ECF No. 24. And Statement P5324.08 includes the following
provisions as part of a suicide prevention policy:
9. IDENTIFICATION OF AT-RISK INMATES.
a. Medical Staff Screening. Medical staff are to
screen a newly admitted inmate for signs that the inmate
is at risk for suicide. Ordinarily, this screening is to take
place within twenty-four hours of the inmate’s admission
to the institution.
The Physician’s Assistant/Nurse Practitioner
(PA/NP) will refer suicidal or emotionally
disturbed inmates on an emergency basis to the
Program Coordinator or designee.
11. INTERVENTION. Upon completion of the
suicide risk assessment, the Program Coordinator or
designee will determine the appropriate intervention that
best meets the needs of the inmate. Because deliberate
self-injurious behavior does not necessarily reflect
suicidal intent, a variety of interventions other than
placing an inmate on suicide watch may be deemed
appropriate by the Program Coordinator, such as
heightened staff or inmate interaction, a room/cell
change, greater observation, placement in restraints, or
referral for psychotropic medication. In any case, the
Program Coordinator or designee will assume
responsibility for the recommended intervention and
clearly document the rationale.
b. Suicidal Inmates. If the Program Coordinator
determines the individual to have an imminent potential
for suicide, the inmate will be placed on suicide watch in
the institution’s designated suicide prevention room. The
actions and findings of the Program Coordinator will be
documented, with copies going to the central file,
medical record, psychology file, and the Warden.
12. SUICIDE WATCH.
a. Housing. Each institution must have one or
more rooms designated specifically for housing an
inmate on suicide watch. The designated room must
allow staff to maintain adequate control of the inmate
without compromising the ability to observe and protect
The primary concern in designating a room for
suicide watch must be the ability to observe,
protect, and maintain adequate control of the
The room must permit easy access, privacy, and
unobstructed vision of the inmate at all times.
Inmates on watch will be placed in the institution’s
designated suicide prevention room, a non-administrative
detention/segregation cell ordinarily located in the health
services area. Despite the cell’s location, the inmate will
not be admitted as an in-patient unless there are medical
indications that would necessitate immediate
c. Observation. For all suicide watches:
Any visual observation techniques used to monitor
the suicide companion program will focus on the
inmate companion and/or the inmate on suicide
The observer and the suicidal inmate will not be in
the same room/cell and will have a locked door
1) Staff Observers. The suicide watch may be
conducted using staff observers. Staff assigned to a
suicide watch must have received training (Introduction
to Correctional Techniques or in AT) and must review
and sign the Post Orders before starting the watch. The
Program Coordinator will review the Post Orders
annually to ensure their accuracy.
2) Inmate Observers. Only the Warden may
authorize the use of inmate observers (inmate companion
program). The authorization for the use of inmate
companions is to be made by the Warden on a case-bycase basis. If the Warden authorizes a companion
program, the Program Coordinator will be responsible for
the selection, training, assignment, and removal of
individual companions. Inmates selected as companions
are considered to be on an institution work assignment
when they are on their scheduled shift and shall receive
performance pay for time spent monitoring a potentially
Statement P5324.08 ¶¶ 9, 11-12, ECF No. 29-4.
Alleged Violations of Intake-related Duties
The FAC alleges that FDC personnel failed to complete “nondiscretionary intake directives in regards to Mr. Tanouye[’s] intake at FDC.” FAC
¶ 33. In particular, “[i]n [filling] out the ‘Intake Screening Form’ upon Mr.
Tanouye’s arrival at the FDC . . . FDC employee Jimmie White Jr. did not ask or
inquire into whether Mr. Tanouye had a history of sexually aggressive behavior.”
Id. ¶ 34. “This is clear as the space for the answer to this question on the Intake
Screening Form is left blank.” Id. ¶ 35. “This is a clear violation of the nondiscretionary mandates of Program Statement Number P5290.15 as evidenced on
the Intake Screening Form.” Id. ¶ 36. “Mr. White also did not review Mr.
Tanuoye’s PSI or Central File.” Id. ¶ 37. Mr. White also wrote “New Commit” on
the intake form in an allegedly “nonresponsive” answer to the question: “If
general physical appearance is not good, explain.” Id. ¶ 38. And the FAC alleges
that “Mr. White simply asked a psychotic Tanouye: ‘Do you know of any reason
you should not be placed in general population?,’” to which Tanouye answered
“No.” Id. ¶ 39.
The FAC further alleges that because “the personnel at the FDC knew
or should have known that Mr. Tanouye was suicidal, had been on psychiatric
medication and had violently tried to rape a woman on a flight to Japan, Mr.
Tanouye should have never been put into a cell with Mr. Bishop.” Id. ¶ 61.
Specifically, “[i]f Mr. Tanouye’s intake screening had been done according to the
non-discretionary regulations[,] the FDC staff would have known that Mr.
Tanouye was unfit to be housed with the general population as he had a very recent
history of sexual aggression and was a paranoid schizophrenic on psychiatric
medication.” Id. ¶ 64. More specifically, the FAC alleges that the “negligent
violation of this non-discretionary policy regarding suicidal inmates resulted in Mr.
Tanouye being placed with Mr. Bishop when Mr. Tanouye should have been
isolated in the FDC’s designated suicide prevention room.” Id. ¶ 67.
Plaintiff is Injured
According to the FAC, “[o]n the morning of Monday[,] October 13,
2014, Mr. Bishop awoke as normal to find himself in his cell with Mr. Tanouye
sleeping.” Id. ¶ 40. Soon after that, Tanouye, “a man much heavier” than Bishop,
woke up and “threw Mr. Bishop to the ground and began to viciously beat Mr.
Bishop about the head.” Id. ¶ 41. “Mr. Bishop struggled to get to the panic button
in the cell, but could not reach it because of Mr. Tanouye’s strength and
aggression.” Id. ¶ 42. After beating Bishop for some time, Tanouye “told Mr.
Bishop he would stop beating him if Mr. Bishop would not touch the panic
button.” Id. ¶ 43. “Mr. Bishop agreed and Mr. Tanouye eventually stopped
beating Mr. Bishop.” Id. ¶ 44. When Bishop asked Tanouye why he beat him,
Tanouye responded that he thought Bishop “was the devil.” Id. ¶ 45. Bishop was
taken to Queen’s Medical Center, where he was treated for his injuries. Id. ¶¶ 5052. Bishop “suffered multiple contusions, his left eye was completely swollen
shut, he experienced numbness to the left side of his face, multiple lacerations and
bruising to his face.” Id. ¶ 62. The FAC alleges that Bishop’s injuries were caused
by negligence of BOP officials in improperly screening Tanouye.
“In sum, the FDC personnel negligently failed to discharge a
nondiscretionary duty to perform intake screening or intake screening that met the
non-discretionary directives of the aforementioned Program Statements to identify
Mr. Tanouye as an inmate that clearly should not have been put into the general
population of the FDC or in a cell with Mr. Bishop.” Id. ¶ 71.
Plaintiff originally filed this FTCA action on May 19, 2016, after
exhausting administrative remedies as necessary under 28 U.S.C. § 2675. ECF No.
1. On July 29, 2016, the government filed a motion to dismiss and/or for summary
judgment that raised the discretionary function exemption under 28 U.S.C.
§ 2680(a). ECF No. 10. In addressing that motion, the court determined that the
FDC’s ultimate decision as to Tanouye’s placement, even if it was negligent,
necessarily would fall within the discretionary-function exception. ECF No. 23 at
10 (citing Santana-Rosa v. United States, 335 F.3d 39, 44 (1st Cir. 2003)
(concluding that decisions about classifying inmates or assigning them to a
particular unit or institution fall within discretionary-function exception); Rich v.
United States, 811 F.3d 140, 145-46 (4th Cir. 2015) (holding that “[p]rison
officials are afforded discretion in determining where to place inmates and whether
to keep certain individuals . . . separated from one another”) (citations omitted)).
Plaintiff, however, had raised (without pleading) BOP regulations that
he claimed set forth mandatory intake duties that were not followed -- and if such
regulations were applicable, and if they were in fact not followed, then the FDC
might not have been in a position actually to exercise its discretion in placing
Tanouye. See, e.g., Usry v. United States, 2013 WL 1196650, at *7 (N.D. W. Va.
Mar. 25, 2013) (“[S]o long as BOP personnel followed guidelines in classifying
inmates and placing them in certain institutions, the ultimate decision regarding an
inmate’s placement was discretionary.”) (citing Cohen v. United States, 151 F.3d
1338, 1343 (11th Cir. 1998) (emphasis added)), aff’d 545 F. App’x 265 (4th Cir.
Nov. 6, 2013) (mem.). But because Plaintiff had failed to plead any facts
regarding the discretionary function exemption, the court granted the motion, and
dismissed the Complaint with leave to amend. ECF No. 23; see, e.g., United States
v. Gaubert, 499 U.S. 315, 324-25 (1991) (“For a complaint to survive a motion to
dismiss, it must allege facts which would support a finding that the challenged
actions are not the kind of conduct that can be said to be grounded in the policy of
the regulatory regime.”). Accordingly, Plaintiff filed the FAC on November 21,
2016. ECF No. 24.
On December 12, 2016, the government filed the present Motion to
Dismiss under Rule 12(b)(1), again raising the FTCA’s discretionary function
exception. ECF No. 26. The government also argues under Rule 12(b)(6) that, as
to suicide-prevention regulations, any harm to Plaintiff was not a foreseeable result
of any violation of such regulations, which are meant to protect the suicidal inmate
and not to protect others. Plaintiff filed his Opposition on February 6, 2017, ECF
No. 29, and Defendant filed a Reply on February 13, 2017. ECF No. 30. The
court held a hearing on the Motion on February 27, 2017.
Based on discussions at that February 27, 2017 hearing, the court held
the matter in abeyance, and gave Plaintiff (with cooperation from government
counsel) the opportunity to conduct limited discovery into one key issue -- whether
Tanouye was actually on “suicide watch” when he was admitted to FDC and
placed in Plaintiff’s cell (as alleged in the FAC). After conducting such discovery,
however, Plaintiff informed the court on April 5, 2017 that, for purposes of this
action, he concedes that Tanouye was not on suicide watch at the time of the
assault on Plaintiff. See ECF Nos. 35, 36. The parties agreed to submit the matter
for decision without further supplemental briefing. ECF No. 35.
III. STANDARD OF REVIEW
Rule 12(b)(1) authorizes a court to dismiss claims over which it lacks
proper subject matter jurisdiction. A Rule 12(b)(1) motion may be either facial
(attacking the sufficiency of the complaint’s allegations to invoke federal
jurisdiction) or factual (disputing the truth of the allegations of the complaint).
Safe Air for Everyone, 373 F.3d at 1039.
In a facial attack, the court may dismiss a complaint when its
allegations are insufficient to confer subject matter jurisdiction, and a complaint’s
factual allegations are taken as true and construed in the light most favorable to the
nonmoving party. Fed’n of African Am. Contractors v. City of Oakland, 96 F.3d
1204, 1207 (9th Cir. 1996). But in a factual attack “[w]here the jurisdictional issue
is separable from the merits of the case, the judge may consider the evidence
presented with respect to the jurisdictional issue and rule on that issue, resolving
factual disputes if necessary.” Thornhill Publ’g Co., Inc. v. Gen. Tel. & Elecs.
Corp., 594 F.2d 730, 733 (9th Cir. 1979). In such case, “no presumptive
truthfulness attaches to plaintiff’s allegations, and the existence of disputed
material facts will not preclude the trial court from evaluating for itself” the
existence of subject matter jurisdiction. Id.
Further, where “the jurisdictional issue and substantive issues are so
intertwined that the question of jurisdiction is dependent on the resolution of
factual issues going to the merits, the jurisdictional determination should await a
determination of the relevant facts on either a motion going to the merits or at
trial.” Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). That is, if
“the jurisdictional issue and substantive claims are so intertwined that resolution of
the jurisdictional question is dependent on factual issues going to the merits, the
district court should employ the standard applicable to a motion for summary
judgment.” Autery v. United States, 424 F.3d 944, 956 (9th Cir. 2005) (quoting
Rosales v. United States, 824 F.2d 799, 803 (9th Cir. 1987)). “The Court ‘must
therefore determine, viewing the evidence in the light most favorable to the
nonmoving party, whether there are any genuine issues of material fact.’” Id.
(quoting Suzuki Motor Corp. v. Consumers Union of U.S., Inc., 330 F.3d 1110,
1131 (9th Cir. 2003) (en banc)); see also Roberts v. Corrothers, 812 F.2d 1173,
1777 (9th Cir. 1987) (“In such a case, the district court assumes the truth of
allegations in a complaint . . . unless controverted by undisputed facts in the
The Discretionary Function Exception
The FTCA waives the sovereign immunity of the United States,
permitting tort suits for damages against the government “in the same manner and
to the same extent as a private individual under like circumstances.” 28 U.S.C.
§ 2674. It grants district courts with jurisdiction over civil actions for money
damages for negligent or wrongful acts or omissions of government employees
acting in the scope of employment “under circumstances where the United States,
if a private person, would be liable to the claimant in accordance with the law of
the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1).
FTCA liability, however, is limited by exceptions set forth in 28
U.S.C. § 2680. At issue here is the “discretionary function” exception in § 2680,
The provisions of this chapter and section 1346(b) of this title
shall not apply to-(a) Any claim based upon an act or omission of an
employee of the Government, exercising due care, in the
execution of a statute or regulation, whether or not such statute
or regulation be valid, or based upon the exercise or
performance or 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.
The purpose of the discretionary function exception is to “prevent
judicial ‘second-guessing’ of legislative and administrative decisions grounded in
social, economic and political policy through the medium of an action in tort.”
Gaubert, 499 U.S. at 323. The government has the burden of proving applicability
of the discretionary function exception. See Meyers v. United States, 652 F.3d
1021, 1028 (9th Cir. 2011) (citing GATX/Airlog Co. v. United States, 286 F.3d
1168, 1173 (9th Cir. 2002)). “Whether a challenged action falls within the
discretionary function exception requires a particularized analysis of the specific
agency action challenged.” GATX/Airlog Co., 286 F.3d at 1174.
A two-part test applies to determine if the discretionary function
exception bars an FTCA claim. “First, for the exception to apply, the challenged
conduct must be discretionary -- that is, it must involve an element of judgment or
choice.” Id. at 1173. This inquiry “looks at the ‘nature of the conduct, rather than
the status of the actor’ and the discretionary element is not met where ‘a federal
statute, regulation, or policy specifically prescribes a course of action for an
employee to follow.’” Myers, 652 F.3d at 1028 (quoting Terbush v. United States,
516 F.3d 1125, 1129 (9th Cir. 2008)). If a “mandatory directive” is violated, this
first requirement is not met -- the exception does not apply -- because “‘the
employee has no rightful option but to adhere to the directive.’” GATX/Airlog Co.,
286 F.3d at 1173-74 (quoting Berkovitz v. United States, 486 U.S. 531, 536
(1988)). That is, “[i]f the employee violates [a] mandatory regulation, there will be
no shelter from liability because there is no room for choice and the action will be
contrary to policy.” Gaubert, 499 U.S. at 324. “As the circuits have concluded,
the reason for this rule is obvious -- a federal employee cannot be operating within
his discretion if he is in fact violating a nondiscretionary policy.” Spotts v. United
States, 613 F.3d 559, 568 (5th Cir. 2010).
Second, if discretion is exercised, the court “determine[s] whether [the
exercise of] judgment is of the kind that the discretionary function exception was
designed to shield.” GATX/Airlog Co., 286 F.3d at 1174 (quoting Berkovitz, 486
U.S. at 536). “Only those exercises of judgment which involve considerations of
social, economic, and political policy are excepted from the FTCA by the
discretionary function doctrine.” Sigman v. United States, 217 F.3d 785, 793 (9th
Cir. 2000) (citing United States v. Varig Airlines, 467 U.S. 797, 814 (1984)). “The
focus is on ‘the nature of the actions taken and on whether they are susceptible to
policy analysis.’” GATX/Airlog Co., 286 F.3d at 1174 (quoting Gaubert, 499 U.S.
at 325). The decision at issue “‘need not actually be grounded in policy
considerations’ so long as it is, ‘by its nature, susceptible to a policy analysis.’” Id.
(quoting Nurse v. United States, 226 F.3d 996, 1001 (9th Cir. 2000)). “When a
statute, regulation or agency guideline allows a government agent to exercise
discretion, it must be presumed that the agent’s acts are grounded in policy when
exercising that discretion.” Weissich v. United States, 4 F.3d 810, 814 (9th Cir.
1993) (citing Gaubert, 499 U.S. at 324). “Even if the decision is an abuse of the
discretion granted, the exception will apply.” Myers, 652 F.3d at 1028 (quoting
Terbush, 516 F.3d at 1129)).
Application of Discretionary Function Exception Standards
As explained earlier, the court previously determined that the FDC’s
ultimate decision of where to place Bishop was discretionary. ECF No. 23. The
government thus argues that any alleged failure to complete underlying intake
screening requirements that led to that discretionary placement decision are also
necessarily shielded from liability. Mot. at 3, ECF No. 26-1 at 8. Not so -- the
court must address whether FDC personnel violated mandatory duties that then
allowed them to exercise discretion. See, e.g., Usry, 2013 WL 1196650, at *7
(“[S]o long as BOP personnel followed guidelines in classifying inmates and
placing them in certain institutions, the ultimate decision regarding an inmate’s
placement was discretionary.”) (citation omitted). As In re Glacier Bay, 71 F.3d
1447 (9th Cir. 1995), explains,
the proper level of inquiry must be act by act. . . . The
proper question to ask is not whether the Government as
a whole had discretion at any point, but whether its
allegedly negligent agents did in each instance. Each
separate action must be examined to determine whether
the specific actor had discretion of a type Congress
intended to shield.
Id. at 1451. And Glacier Bay “reject[ed] the district court’s conclusion that the
government cannot be liable for the final product of numerous specific actions,
even if some of the actions were nondiscretionary and negligently executed, so
long as others of those actions involved discretion.” Id.
Accordingly, the court proceeds to address separately the two types of
mandatory policies alleged in the FAC -- policies relating to intake, and policies
related to psychiatric screening and suicide prevention -- to determine whether the
government has demonstrated that the discretionary function exception applies.
Intake Screening Policies
At step one of the analysis -- whether any relevant mandatory
directives were violated -- the court first focuses on the inmate intake procedures in
Statement P5290.15. In particular, P5290.15 (and 28 C.F.R. § 522.21(a) upon
which it is based) states that “the Warden shall ensure that a newly arrived inmate
is cleared by the Medical Department and provided a social interview by [FDC]
staff before assignment to the general population.” Statement P5290.15 ¶ 7a, ECF
No. 29-2 at 3 (emphases added). Statement P5290.15 provides further that “before
placing [an] inmate in the institution’s general population, staff shall ensure that
health, safety, and security standards delineated in this Program Statement are
met.” Id. ¶ 1, ECF No. 29-2 at 1. And it requires staff to “observe the physical
appearance of the inmate and interview each inmate prior to placement in general
population [and] [i]f this is not possible, inmates are to be kept in detention until
completion of the medical clearance and social interview.” Id. ¶ 7; ECF No. 29-2
The Complaint alleges that FDC personnel did not properly screen
Tanouye under this Program Statement. For example, the intake form leaves blank
an answer to the question “is there a history of sexually aggressive behavior?,” and
likewise has nothing in the “comment” section to that question. Def.’s Ex. A, ECF
No. 26-3. And to the question “if general physical appearance is not good,
explain,” the interviewer simply wrote “New Commit.” Id. There is nothing from
either the interviewer, or on the intake form itself, indicating that any medical
screening was performed. And indeed, the government proffers a December 12,
2016 Declaration from FDC Associate Warden David Bruce (“Bruce”) recognizing
that “[b]ecause Tanouye arrived at approximately 1:00 AM, a review by the Health
Services Department was not immediately available.” D. Bruce Decl. (Dec. 12,
2016) ¶ 13; ECF No. 26-2 at 5. The government thus acknowledges that a full
medical clearance of Tanouye had not yet been performed before Tanouye was
placed in a cell with Plaintiff.
But this does not matter -- the undisputed evidence in the record
indicates that Tanouye was not placed in “general population” and the identified
Statement P5290.15 only provides for certain mandatory duties “before placing
[an] inmate in the institution’s general population.” Statement P5290.15 ¶ 1, ECF
No. 29-2 at 1 (emphasis added); see also, e.g., id. ¶ 3 (“Social and medical
screening interviews will be conducted on all inmates prior to their placement in
In this regard, Bruce attests that “Tanouye was not assigned to general
population, but was assigned [with Plaintiff] to cell 132 in the Special Housing
Unit, a two-person cell.” D. Bruce Decl. (Dec. 12, 2016) ¶ 12, ECF No. 26-2 at 5.
Bruce further explains that Special Housing Units (“SHUs”) “are housing units in
BOP institutions where inmates are securely separated from the general inmate.”
Id. ¶ 13 (citing 28 C.F.R. § 541.21). “Inmates may be housed in SHU for
disciplinary reasons or for administrative purposes [which] may include placement
while pending custody classification, redesignation, or as a holdover prior to
transfer to another facility.” Id. (citing 28 C.F.R. §§ 541.22 to -.23).
The government also points out that placement of Tanouye in a SHU
pending further examination is specifically permitted under Statement P5290.15,
which states that “[i]f [an interview prior to placement in general population] is not
possible, inmates are to be kept in detention until completion of the medical
clearance and social interview.” Statement P5290.15 ¶ 7a. Bruce attests that “[i]n
[Statement P5290.15], the term ‘detention’ refers to administrative detention in the
SHU.” D. Bruce Decl. (Dec. 12, 2016) ¶ 14. Likewise, Bruce confirms that
Plaintiff “had been previously assigned to the [SHU] on December 5, 2013, for
unrelated administrative purposes, and was occupying cell 132 on October 12,
2014.” Id. ¶ 15. That is, the FDC’s actions were fully consistent with the Policy
Statements, at least as to placing Tanouye in “detention” pending further
In response, Plaintiff no longer contends, as alleged in the FAC, that
Tanouye was placed in general population. Instead, he argues that “detention”
must mean that an inmate who has not yet been fully screened must be kept
segregated from any other inmates. Pl.’s Opp’n at 15, ECF No. 29 at 21. Plaintiff
contends that Program Statements did not allow Tanouye to have been placed in a
SHU cell with Plaintiff, until further screening took place. But this position
contradicts the plain language and meaning of the relevant regulations. In
particular, 28 C.F.R. § 541.22 (“Status when placed in the SHU”) provides in
When placed in the SHU, you are either in administrative
detention status or disciplinary segregation status.
(a) Administrative detention status. Administrative
detention status is an administrative status which
removes you from the general population when necessary
to ensure the safety, security, and orderly operation of
correctional facilities, or protect the public.
Administrative detention status is non-punitive, and can
occur for a variety of reasons.
Similarly, 28 C.F.R. § 541.23 (“Administrative detention status”) provides in
You may be placed in administrative detention status for
the following reasons:
(a) Pending Classification or Reclassification. You are a new
commitment pending classification or under review for
And 28 C.F.R. § 541.21 (“Special Housing Units”) specifically allows inmates to
be housed with other inmates while in a SHU:
Special Housing Units (SHUs) are housing units in
Bureau institutions where inmates are securely separated
from the general inmate population, and may be housed
either alone or with other inmates. Special housing units
help ensure the safety, security, and orderly operation of
correctional facilities, and protect the public, by
providing alternative housing assignments for inmates
removed from the general population.
Accordingly, given the undisputed record -- and even assuming that
FDC personnel failed to fulfill required duties before it could place Tanouye in
general population -- Plaintiff’s claim based on Statement P5290.15 is barred.
That is, the FAC fails to allege a breach of a relevant non-discretionary duty in
Statement P5290.15 that could have led to Plaintiff’s injuries. Regardless of the
screening process, the FDC had discretion to place Tanouye in administrative
detention in the SHU with Plaintiff. That is, Plaintiff’s claim fails at step one of
the analysis. See, e.g., GATX/Airlog Co., 286 F.3d at 1173 (“First, for the
exception to apply, the challenged conduct must be discretionary -- that is, it must
involve an element of judgment or choice.”). 5
Stated differently, because Tanouye was not placed in general population, even
assuming FDC personnel negligently failed to complete intake duties in Statement P5290.15,
such a violation could not have proximately or legally caused injury to Plaintiff. See In re
Glacier Bay, 71 F.3d at 1451 (“It remains possible that because NOAA supervisors ultimately
approved the surveys in question, [plaintiff] may not be able to show any alleged hydrographer
errors actually caused them injury. That issue, however, is one of proximate cause.”).
At the second step of the analysis, it is equally clear that such
placement decisions involve policy considerations. See Cohen, 151 F.3d at 1344
(“Deciding how to classify prisoners and choosing the [location] in which to place
them are part and parcel of the inherently policy-laden endeavor of maintaining
order and preserving security within our nation’s prisons.”); cf. Brown v. United
States, 569 F. Supp. 2d 596, 600 (W.D. Va. 2008) (“Because 28 C.F.R. § 522.21
implicitly confers discretion on prison officials in deciding whether to place an
inmate in the general population, it is presumed that such decision is grounded in
policy.”). Whether or not the FDC was careless in making its housing decision in
placing Tanouye in the SHU with another inmate, it conformed to applicable BOP
Program Statements. As the First Circuit reasoned:
In many, if not most, instances where an inmate is
unfortunately injured by another inmate, it will be
possible to argue that a different exercise of discretion or
a different policy choice might well have forestalled the
injury. Nevertheless, decisions with regard to
classification of prisoners, assignment to particular
institutions or units, and allocation of guards and other
correctional staff must be viewed as falling within the
discretionary function exception to the FTCA, if penal
institutions are to have the flexibility to operate.
Santana-Rosa, 335 F.3d at 44.
Psychiatric and Suicide-Prevention Regulations
The court next addresses Statements P6340.04 and P5324.08, which
concern psychiatric services and suicide prevention. In particular, Plaintiff focuses
alleged violations of paragraph nine of Statement P6340.04, which states:
EVALUATIONS. The Medical Director will
provide guidance for standards and formats for
Intake Screening. Staff performing intake
screening will assess and make appropriate referrals to a
mental health professional when an inmate:
Has a mental health designation;
Exhibits signs or symptoms consistent with
a possible mental disorder; or
Is on medication for treatment of a mental
illness or disorder
Screening will be of sufficient detail to determine
appropriate housing for the inmate until a thorough
mental health evaluation can be completed.
ECF No. 26-5 at 8. Plaintiff contends that the FDC failed to meet this
“mandatory” requirement because Tanouye’s screening (where he exhibited
obvious signs of a mental disorder) was of insufficient detail to determine
appropriate housing before conducting a full mental evaluation. Pl.’s Opp’n at 18,
ECF No. 29 at 24. The court disagrees.
To start, this provision is but one part of a comprehensive, sixteenpage Program Statement encompassing many different aspects of inmate
psychiatric services “throughout the inmates’ incarceration.” Statement P6340.04
¶ 1, ECF No. 26-5 at 2. The Program Statement is meant broadly to “address the
physical, medical, psychological, social, vocational and rehabilitative needs of
inmates in the [BOPs] custody who suffer from mental illnesses and disorders.”
Id. This Statement’s specific intake screening provision in paragraph nine does not
mention when such screening must be accomplished, nor address any other aspect
of an inmate’s housing.
Rather, timing of screening and housing decisions are specifically
detailed in other Program Statements. For example, under Statement P5290.15,
medical screening is supposed to occur “[w]ithin 24 hours after an inmate’s
arrival.” Statement P5290.15 at 3 (emphasis added). In like manner, “[i]f this is
not possible, inmates are to be kept in detention until completion of the medical
clearance and social interview.” Id. And similarly, under Statement P5324.08,
“[m]edical staff are to screen a newly admitted inmate for signs that the inmate is
at risk for suicide. Ordinarily, this screening is to take place within twenty-four
hours of an inmate’s admission to the institution.” Statement P5324.08 ¶ 9a., ECF
No. 26-6 at 6 (emphasis added). Reading these Program Statements together, there
could have been no violation of P6340.04’s screening provision -- Tanouye had
only been at the FDC for a few hours (well within a 24-hour requirement) when he
allegedly assaulted Plaintiff.
In any event, Statement P6340.04 ¶ 9a cannot form the basis of a nondiscretionary duty for purposes of the FTCA -- it contains inherently discretionary
language, such as “Staff performing intake screening will . . . make appropriate
referrals,” and “[s]creening will be of sufficient detail to determine appropriate
housing.” Id. (emphases added). Such terms indicate discretion, leaving ample
room for an exercise of judgment or choice. See Berkovitz, 456 U.S. at 546-47
(“[I]f the [agency’s] policy leaves no room for an official to exercise policy
judgment in performing a given act, or if the act simply does not involve the
exercise of such judgment, the discretionary function exception does not bar a
claim that the act was negligent or wrongful.”); In re Glacier Bay, 71 F.3d at 1454
(concluding that a regulation requiring surveys that are “adequate” or “substandard
in any way” “leaves an element of judgment or choice,” and thus involve
discretion protected by the discretionary function exception); Autery v. United
States, 992 F.2d 1523, 1529 (11th Cir. 1993) (reiterating that only if a statute or
regulation embodies a “‘fixed or readily ascertainable standard,’ will a government
employee’s conduct not fall within the discretionary function exception”) (quoting
Miller v. United States, 710 F.2d 656, 663 (10th Cir. 1983)); Montez ex rel. Estate
of Hearlson v. United States, 359 F.3d 392, 396-97 (6th Cir. 2004) (applying the
discretionary function exception where “the relevant statute and regulations
allowed BOP officials to exercise judgment when making decisions regarding [an
inmate’s] safety,” reasoning in part that “the [regulatory] phrases ‘at such times’
and ‘to the degree necessary’ clearly allow prison officials discretion”).
Further, Bruce attests that such a decision is discretionary and
involves policy-related judgment:
The decision as to whether an inmate is appropriate for a
referral to a mental health professional is made at the
discretion of the staff conducting the intake screening
process, and there is no mandatory policy, regulation, or
law which requires that the staff refer the inmate to a
mental health professional based on the information
obtained during the intake process. This decision [is]
made based upon multiple public policy factors including
the staff and resources available, the inmate’s conduct
and demeanor at the time of the intake screening process,
and sound correctional [judgment].
D. Bruce Decl. (Dec. 12, 2016) ¶ 20, ECF No. 26-2 at 8. And Plaintiff offers no
evidence to the contrary.
Lastly, Plaintiff contends that the BOP’s suicide-prevention Policy
Statement required Tanouye to have been placed in a segregated suicide prevention
room, away from any other inmates. See Statement P5324.089 ¶ 11b (“If the
Program Coordinator determines the individual to have an imminent potential for
suicide, the inmate will be placed on suicide watch in the institution’s designated
suicide prevention room.”) and ¶ 12a (“Inmates on watch will be placed in the
institution’s designated suicide prevention room, a non-administrative
detention/segregation cell ordinarily located in the health services area.”).
But the government’s uncontested evidence is that Tanouye was not
on suicide watch, and thus these Policy Statements do not apply. Bruce attests:
From the time that Tanouye arrived at FDC Honolulu at
approximately 1:00 AM until the time that the alleged
assault happened at 6:20 am, Tanouye had not been
reviewed by the Program Coordinator of FDC
Honolulu’s Suicide Prevention Program and had not been
placed on suicide watch.
D. Bruce Decl. (Dec. 12, 2016) ¶ 19, ECF No. 26-2 at 7.6
It’s true that the FAC alleges that “[Plaintiff] was told to watch
[Tanouye] as the prisoner was on suicide watch.” FAC ¶ 11. But, as explained
earlier, at the February 17, 2017 hearing, the court gave Plaintiff leave to conduct
discovery into whether Tanouye was actually on suicide watch (i.e., to attempt to
dispute Bruce’s Declaration). ECF No. 31. Plaintiff conducted such discovery,
and states that, “based on the facts known to Plaintiff, Plaintiff now concedes that
Mr. Tanouye was not on suicide watch at the time of the assault on Plaintiff.” ECF
No. 36. See Thornhill Publ’g Co., Inc., 594 F.2d at 733 (explaining that, in a
Statement 5324.08 allows suicide screening to be conducted “within twenty-four hours
of the inmate’s admission.” The Statement provides:
9. IDENTIFICATION OF AT-RISK INMATES.
a. Medical Staff Screening. Medical staff are to screen a
newly admitted inmate for signs that the inmate is at risk for
suicide. Ordinarily, this screening is to take place within twentyfour hours of the inmate’s admission to the institution.
Statement P5324.08 ¶9, ECF No. 29-4 at 5.
factual attack on jurisdiction under Rule 12(b)(1), “no presumptive truthfulness
attaches to plaintiff’s allegations); Autery, 424 F.3d at 956 (reiterating that, where
the merits are intertwined with the jurisdictional issue under the FTCA, the court
“must therefore determine, viewing the evidence in the light most favorable to the
nonmoving party, whether there are any genuine issues of material fact”) (citation
and internal quotation marks omitted).
In short, mandatory suicide-prevention Policy Statements do not
apply. The FDC had discretion to place Tanouye in Plaintiff’s cell in the SHU.
The government has met its burden to demonstrate that the discretionary function
exception to the FTCA bars claims alleging violations of Policy Statement
The court recognizes that its conclusion is harsh. No one disputes that
Tanouye seriously injured Plaintiff. Nor is there serious dispute that Tanouye
exhibited signs of a psychiatric condition and placing him in the same cell as
Bishop was likely negligent. But the FDC has considerable discretion in its
placement decisions such that, negligent or not, the discretionary function
exemption bars this suit regardless of whether the FDC’s placement decision was
Because the claim is barred, the court need not reach the government’s alternate
argument that any injury to Plaintiff was not the foreseeable result of suicide-prevention Policy
Statements, which are meant to protect a suicidal inmate and not to protect other inmates.
negligent, and regardless of whether the FDC ought to re-examine the procedures
that allowed that decision. See, e.g., Myers, 652 F.3d at 1028 (“Even if the
decision is an abuse of the discretion granted, the exception will apply.”) (quoting
Terbush, 516 F.3d at 1129).
Accordingly, Defendant’s Motion to Dismiss is GRANTED.
Because Plaintiff has already had an opportunity to amend his Complaint, and
further amendment would be futile, the dismissal is with prejudice. The Clerk of
Court shall close the case file.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 13, 2017.
/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge
Bishop v. United States of America, Civ. No. 16-00248 JMS-KSC, Order Granting Defendant’s
Motion to Dismiss, ECF No. 26
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