Belbachir v. United States

Filing 232

WRITTEN Opinion entered by the Honorable Philip G. Reinhard on 11/9/2012: For the reasons set forth below, defendant's motion for summary judgment 205 is granted. Plaintiff's motion to strike and to file surreply 206 is denied as moot. This case is terminated. [For further details see order.] Electronic notice(jat, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Philip G. Reinhard

CASE NUMBER

08 C 50193

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

11/9/2012

Belbachir vs. United States

DOCKET ENTRY TEXT:

For the reasons set forth below, defendant’s motion for summary judgment is granted. Plaintiff’s motion to
strike and to file surreply is denied as moot. This case is terminated.

O[ For further details see text below.]

Electronic Notices.

STATEMENT-OPINION
Plaintiff, Abdelkader Rachid Belbachir, the administrator of the estate of Hassiba Belbachir, brings
this wrongful death action against defendant, the United States of America, pursuant to the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§ 1346 (b), 2671 et seq. Hassiba Belbachir, plaintiff’s decedent,
committed suicide March 17, 2005, while being held in the McHenry County Jail pending deportation
proceedings. Hassiba was residing in the United States, flew from O’Hare to England, was denied entry by
British authorities and returned by them to her point of origin in the United States. At O’Hare, she was
denied re-entry into the United States, taken into custody, and ultimately housed in the McHenry County Jail.
The complaint alleges that agents of the United States Department of Homeland Security (“DHS”),
Immigration and Customs Enforcement (“ICE”) and Office of Detention and Removal (“DRO”) were
negligent and engaged in willful and wanton conduct proximately causing Ms. Belbachir’s death.
Jurisdiction is proper under 28 U.S.C.§ 1346 (b) (1), which provides exclusive jurisdiction in federal district
courts for claims against the United States for money damages for “death 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, 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.” Defendant moves for
summary judgment1.
For the United States to be liable under the FTCA, it must be liable to plaintiff under the law of the
place where the act or omission occurred. 28 U.S.C. § 1346 (b); see Carter v. U.S., 333 F.3d 791,793 (7th Cir.
2003). The parties agree that place is Illinois. The Illinois Wrongful Death Act provides a cause of action
“[w]henever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or
default is such as would, if death had not ensued, have entitled the party injured to maintain an action and
recover damages in respect thereof.” 740 ILCS 180/1. Plaintiff claims the United States, if it were a private
person, would be liable under the Illinois Wrongful Death Act for the death of Ms. Belbachir, because of the
negligent and wilful and wanton acts of its employees, and, therefore, is liable under the FTCA.
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STATEMENT-OPINION
To recover under the FTCA, plaintiff must show that Hassiba would not have committed suicide had the
defendant’s employees acted responsibly and that her suicide was a foreseeable as well as actual consequence
of the negligence of those employees. Jutzi-Johnson v. Untied States, 263 F.3d 753, 755 (7th Cir. 2001).
Defendant argues it cannot be liable for Hassiba’s death to the extent the claim is premised on the acts
or omissions of McHenry County Jail, or Centegra, personnel because they were not federal employees. The
FTCA only waives sovereign immunity as to federal employees and the waiver does not extend to the acts or
omissions of contractors or the employees of contractors who contract with the federal government. 28
U.S.C. § 2671; Logue v. United States, 412 U.S. 521, 528 (1973). Plaintiff does not dispute that defendant
cannot be vicariously liable for the acts or omissions of the McHenry County Jail or Centegra employees.
Plaintiff’s claim is that defendant is liable for the negligence of its own employees– those who had
contact with Hassiba and were responsible for handling her case and those responsible for the oversight of
the performance of McHenry County Jail under the contract to house immigration detainees. Plaintiff argues
defendant’s employees’ negligence in the oversight of the jail allowed deficiencies to persist which
ultimately caused Hassiba’s death– the negligent oversight caused the negligence of the jail personnel which
led to her death.
Defendant argues that the discretionary function exception of 28 U.S.C. § 2680 (a) bars an action
against it for any claims based on oversight of the jail. Section 2680(a) provides that 28 U.S.C. § 1346(b)
(which, as noted above, provides the only basis for a wrongful death claim against the United States) does not
apply to any claim “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 intended purpose of the discretionary function exception is
“protecting the discretionary policy-related decisions of federal officers from being second-guessed by
judges.” Collins v. United States, 564 F.3d 833, 840 (7th Cir. 2009) (emphasis in original). While the purpose
is to protect policy-related decisions, the exception is not limited to policymaking functions. United States v.
Gaubert, 499 U.S. 315, 325 (1991). The exception applies to day-to-day decisions made at the operational or
management levels as well. Id. “If the routine or frequent nature of a decision were sufficient to remove an
otherwise discretionary act from the scope of the exception, then countless policy-based decisions by
regulators exercising day-to-day supervisory authority would be actionable.” This is not the rule of our
cases.” Id. at 334.
Plaintiff argues the discretionary function exception does not apply in this case because the exception
does not apply where a “federal statute, regulation, or policy prescribes a course of action for an employee to
follow, because the employee has no rightful option but to adhere to the directive.” Id. at 322 (internal
quotation marks and citation omitted). Plaintiff contends defendant’s employees’ negligent actions were
deviations from federal agency policies that prescribed a course of action the employees were to follow.
Rather than being exercises of discretion, plaintiff maintains the defendant’s employees acts and omissions
were contrary to mandatory ICE Detention Standards and Detention Management Control Program
(“DMCP”) and, therefore, outside the protection of the discretionary function exception.
Defendant responds to this argument by asserting that federal law cannot provide the basis for an
FTCA claim. Clark v. United States, 326 F.3d 911, 914 (7th Cir. 2003). Defendant argues the violation of a
federally-established duty (the ICE Detention Standards and DMCP ) cannot form the basis for an FTCA
claim because only a state-law tort is actionable under the FTCA. Id. However, it is not the detention
standards that set the duty of care. The duty of care for those in federal custody is fixed by 18 U.S.C. § 4042
and requires safekeeping, care and subsistence of all persons held by the United States. Parrott v. United
States, 536 F.3d 629, 637 (7th Cir. 2008). Defendant has not provided any basis for believing Illinois law
creates a different standard, id., and, in fact, Illinois law provides jailers owe a duty of care to prisoners,
which includes the duty to guard against the possibility of suicide . Dezort v. Village of Hinsdale, 342 N.E.2d
468, 472-73 (Ill. App. 1976). State law governs whether the duty was breached and whether the breach was
the proximate cause of the injuries to the detainee in federal custody in the state. See Parrott, 536 F.3d at 637.
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STATEMENT-OPINION
The claim is cognizable under the FTCA.
Returning to the discretionary function exception, for it to apply, the conduct alleged must involve an
element of judgment or choice and must be a permissible exercise of policy judgment. Reynolds v. United
States, 549 F.3d 1108, 1112 (7th Cir. 2008). Defendant does not raise the discretionary function exception as
a defense to plaintiff’s claims based on the actions of defendant’s employees who had contact with Hassiba,
and their supervisors. The discretionary function exception is raised only as a defense to claims of
negligence by defendant’s employees responsible for oversight of the McHenry County Jail and their
supervisors. Plaintiff contends these federal employees were required to follow mandatory procedures and,
therefore, were not exercising discretion.
The McHenry County Jail was an Inter-Governmental Service Agreement (IGSA) Facility in that it is
a political subdivision of a state that housed detainees based on an agreement with ICE. The ICE Detention
Standard for suicide prevention and intervention applied by its terms to IGSAs as well as to Service
Processing Centers (“SPCs”) and Contract Detention Facilities (“CDFs”). An SPC is an immigration
detention facility owned by the federal government. A CDF provides detention services under a
competitively bid contract with ICE. The Detention Management Control Program is the review process ICE
uses for managing compliance with ICE Detention Standards.
Plaintiff argues the DMCP is “full of mandatory language,” and does not allow discretion in the
review process. However, the DMCP specifically states that “IGSA’s are not required at this time to meet all
procedures and guidance outlined in the DMCP, they are required to meet the intent of the published
Detention Standards.”
The DMCP specifically calls for the exercise of judgment in the review process. It states due
professional care in conducting the review includes “[u]sing good judgment in conducting the review,
assessing the findings, and preparing the report.” In discussing the scope of the review, the DMCP states
“[r]eviewers should fully utilize the prescribed detention standards and review guidelines to allow for
efficient use of resources and to help focus their attention. However, they are not constrained from
examining other areas based on the evidence being examined or observation at the review site.” The DMCP
states “[i]f factors restrict the scope of the review, limit the reviewer’s access, or interfere with the reviewer’s
ability to form objective opinions and conclusions, the RIC [reviewer-in-charge] shall attempt to resolve the
problem informally.” In describing the phases of the review, the DMCP calls, in the examination phase for
“[c]ollecting evidence, usually at the review site, which includes determining whether the evidence is
sufficient, reliable, and relevant.” In the evaluation phase, the DMCP calls for “[a]ssessing the evidence for
deficiencies or need for improvement.” In the follow-up phase, the DMCP calls for [e]valuating the facility’s
response, monitoring corrective action, seeking resolution of any disagreements, and obtaining closure of the
review.”
It is the judgmental nature of the procedure, not the mandatory nature of the regulations being
enforced, that determines the applicability of the discretionary function exception. Cassens v. St. Louis River
Cruise Lines, Inc., 44 F.3d 508, 513 (7th Cir. 1995). The review process requires the exercise of judgment.
The first prong of the discretionary function exception is met as to the oversight claim.
The second prong is also met. When the governmental policy allows the agent to exercise discretion,
it is” presumed that the agent’s acts are grounded in policy when exercising that discretion.” Gaubert, 499
U.S. at 324. Plaintiff must show 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.” Id. at 325. The
actions challenged here are all related to the oversight of the jail which is within the scope of permissible
exercise of policy judgment.
The next issue defendant argues is that under the Illinois Wrongful Death Act its employees who had
contact with Hassiba were not negligent, because they did not breach a duty of care to her. Plaintiff contends
defendant’s employees were negligent because they failed to properly screen her for medical problems or
suicide risk, did nothing concerning her medical condition following her trip to the emergency room, failed to
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STATEMENT-OPINION
interview her to determine what her medical issues were and to communicate those issues to the McHenry
County Jail.
On March 8, 2005, Hassiba was denied re-entry into the United States when, after having been denied
entry in England, she was returned by British authorities to Chicago O’Hare International Airport, her point
of origin. She was interviewed by a Custom and Border Protection (“CBP”) Officer. The Officer did not ask
her any questions concerning medical or mental health issues. She cried at some point during this interview.
On March 8, 2005, she was determined to be removable and was taken into immigration custody in order to
process an asylum application.
At 11:36 p.m., Hassiba was taken to the Stone Park Police Department to be held. At approximately
2:48 a.m., March 9, 2005, she was taken by ambulance to Gottlieb Memorial Hospital and diagnosed with an
acute anxiety reaction, acute gastritis and was given anti-anxiety medication and medication for nausea and
gastritis. She was released from the hospital around 6:00 a.m. At approximately 7:00 a.m., she was taken by
an ICE Agent to the Broadview Service Staging Area (“BSSA”). No inquiry was made by the transporting
officer as to her medical condition. He never asked her if she was a suicide risk. The agent assumed Hassiba
did not speak English and did not ask her any questions. The agent did not see her hospital discharge papers.
No one told him she had been in the hospital.
The BSSA is not an SPC. Chicago does not have an SPC. The BSSA is a staging facility and
medical and mental health screening is not done there. Mental health screening is done when a detainee gets
to her permanent housing location. Hassiba was assigned to the McHenry County Jail as her permanent
housing location. She was picked up by McHenry County Sheriff transport officers from the BSSA and
taken to the McHenry County Jail.
As noted above, the duty of care for those in federal custody requires safekeeping, care and
subsistence. Parrott, 536 F.3d at 637. The ICE Detention Standard for suicide prevention and intervention,
by its terms, did not apply to the defendant’s employees who had contact with Hassiba. While she was with
those employees, she was never in an SPC, and an SPC is the only federal facility to which the standard
applies.
It is evident from the record that these federal employees did not violate the standard of care. Hassiba
was taken to the hospital for the only medical condition she complained of and was treated for the same. She
was safely cared for until she was turned over to the custody of McHenry County Jail personnel. She did not
commit suicide or harm herself in any way while with the federal employees. There is no indication she was
acting in any abnormal way. Plaintiff’s claim is that these employees should have engaged in actions that
would have allowed them to determine she was suicidal and so prevent her suicide eight days later. But,
plaintiff has not demonstrated this was their duty. They performed the duty of keeping her safe while they
had her with them. They were not negligent nor was their conduct wilful and wanton.
Defendant also contends plaintiff’s negligence claim fails because there is no evidence that the
actions of defendant’s employees was the proximate cause of Hassiba’s suicide. As noted above, to recover
under the FTCA, plaintiff must show that Hassiba would not have committed suicide had the defendant’s
employees acted responsibly and that her suicide was a foreseeable as well as actual consequence of the
negligence of those employees. Jutzi-Johnson, 263 F.3d at 755. Under Illinois law, a “proximate cause is one
that produces an injury through a natural and continuous sequence of events unbroken by any effective
intervening cause. Chalhoub v. Dixon, 788 N.E.2d 164, 168 (Ill. App. 2003).
The evidence shows that while in McHenry County Jail custody, Hassiba was seen and evaluated by a
nurse and, on referral from the nurse, a therapist. The therapist spent about an hour with her and concluded
she was not an imminent suicide risk. The therapist chose not to place her on suicide watch. There is no
evidence that anything the federal employees could have done would override this independent medical
evaluation.
For the foregoing reasons, defendant’s motion for summary judgment is granted. The contractor
exception bars liability for acts or omissions of McHenry County Jail and Centegra personnel. The
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STATEMENT-OPINION
discretionary function exception bars liability for the acts of federal employees in overseeing the McHenry
County Jail. The evidence does not show a breach of a duty of care or proximate cause concerning the acts
or omissions of federal employees who had contact with Hassiba so they were not negligent nor liable for
wilful and wanton conduct. Plaintiff’s motion to strike and to file surreply is denied as moot. This case is
terminated.

1. Plaintiff moves to strike defendant’s reply to plaintiff’s response to defendant’s statement of
facts and to file a surreply [206]. The court did not consider the defendant’s reply to plaintiff’s
response in deciding the summary judgment motion and the court considered the arguments in
plaintiff’s motion to file surreply as the surreply. Plaintiff’s motion is denied as moot.

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