Hill v. United States of America

Filing 108

MEMORANDUM AND ORDER, the Court hereby ADOPTS the Report and Recommendation in its entirety (Doc. 103 ) and GRANTS Defendant United States' Motion (Doc. 96 ) for Summary Judgment. As there are no other defendants, this matter is DIMISSED with prejudice. The Clerk of Court is DIRECTED to enter judgment in favor of Defendant United States of America and against plaintiff Gerald J. Hill. Signed by Judge J. Phil Gilbert on 7/19/2017. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
GERALD HILL,

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Plaintiff,
vs.
USA,
Defendant.

Case No. 13-cv-00307-JPG-RJD

MEMORANDUM AND ORDER
This matter comes before the court on the Report and Recommendation (“R & R”) (Doc.
103) of Magistrate Reona J. Daly with regard to Defendant USA’s Third Motion (Doc. 96) for
Summary Judgment. Plaintiff filed an objection (Doc. 105) to the R & R and defendant filed a
response (Doc. 107) to the objection.
The Court may accept, reject or modify, in whole or in part, the findings or
recommendations of the magistrate judge in a report and recommendation. Fed. R. Civ. P.
72(b)(3). The Court must review de novo the portions of the report to which objections are
made. The Court has discretion to conduct a new hearing and may consider the record before the
magistrate judge anew or receive any further evidence deemed necessary. Id. “If no objection or
only partial objection is made, the district court judge reviews those unobjected portions for clear
error.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999). The Court has received
an objection from the defendant and will review de novo those portions of the report.
1. Background.
Plaintiff was inmate at FCI Greenville when another inmate assaulted him with a
Masterlock combination lock. Plaintiff suffered significant injuries and has filed this claim of
negligence under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-2680.

2.

Standards.

Summary judgment must be granted, “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int’l-Ind.,
Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the evidence in the
light most favorable to the nonmoving party and draw all reasonable inferences in favor of that
party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener, 520
F.3d 678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396.
The initial summary judgment burden of production is on the moving party to show the
Court that there is no reason to have a trial. Celotex, 477 U.S. at 323; Modrowski v. Pigatto, 712
F.3d 1166, 1168 (7th Cir. 2013). Where the non-moving party carries the burden of proof at
trial, the moving party may satisfy its burden of production in one of two ways. It may present
evidence that affirmatively negates an essential element of the non-moving party’s case, see Fed.
R. Civ. P. 56(c)(1)(A), or it may point to an absence of evidence to support an essential element
of the non-moving party’s case without actually submitting any evidence, see Fed. R. Civ. P.
56(c)(1)(B). Celotex, 477 U.S. at 322-25; Modrowski, 712 F.3d at 1169. Where the moving
party fails to meet its strict burden, a court cannot enter summary judgment for the moving party
even if the opposing party fails to present relevant evidence in response to the motion. Cooper v.
Lane, 969 F.2d 368, 371 (7th Cir. 1992).
In responding to a summary judgment motion, the nonmoving party may not simply rest
upon the allegations contained in the pleadings, but must present specific facts to show that a
genuine issue of material fact exists. Celotex, 477 U.S. at 322-26; Anderson, 477 U.S. at 256-57;
Modrowski, 712 F.3d at 1168. A genuine issue of material fact is not demonstrated by the mere

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existence of “some alleged factual dispute between the parties,” Anderson, 477 U.S. at 247, or by
“some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists only if “a fairminded jury could return a verdict for the [nonmoving party] on the evidence presented.”
Anderson, 477 U.S. at 252.
“It is, of course, well established that, as a general matter, a district court exercising
jurisdiction because the parties are of diverse citizenship must apply state substantive law and
federal procedural law.” Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin. Servs.,
Inc., 536 F.3d 663, 670 (7th Cir. 2008) (citing Erie R.R. v. Tompkins, 304 U.S. 64 (1938)).
3. Analysis.
Plaintiff is alleging that the USA was negligence in the following matter manner which
facilitated the assault on the plaintiff: failed to have sufficient staff; failed to have sufficient
lighting and cameras; overcrowding of the prisoner population; and the use of an improper area
as a holding facility. (Doc. 6).
Defendant moved for summary judgment arguing that the above acts and/or omissions fall
within the discretionary function exception to the FTCA. The FTCA is a limited waiver of the
Government’s sovereign immunity. It gives federal courts;
exclusive jurisdiction of civil actions on claims against the United States, for
money damages . . . for injury or loss of property, or personal injury or 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.
28 U.S.C. § 1346(b)(1).

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However, Congress crafted several exceptions to § 1346(b)(1)’s waiver of immunity. 28
U.S.C. § 2680; see, e.g., Rothrock v. United States, 62 F.3d 196, 197 (7th Cir. 1995) (no
jurisdiction over cases involving discretionary function). One such exception is for claims
arising from government acts and decisions that are based on considerations of public policy.
See United States v. Gaubert, 499 U.S. 315, 322-23 (1991). This so-called “discretionary
function exception” provides that the Court has no jurisdiction over:
[a]ny 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.
28 U.S.C. § 2680(a).
To fall within the discretionary function exception, the acts giving rise to the suit must
meet two requirements: (1) the acts must be discretionary in nature in that they involve an
element of judgment or choice and (2) the judgment exercised in the act must be the type of
judgment that the discretionary function exception was designed to shield. Gaubert, 499 U.S. at
322-23 (citing Berkovitz v. United States, 486 U.S. 531, 536 (1988); United States v. Varig
Airlines, 467 U.S. 797, 813 (1984)).
To determine whether an act is discretionary because it involves an element of judgment
or choice, the Court must examine the nature of the act, not the status of the actor. Gaubert, 499
U.S. at 322. For example, although it is common for high level government workers to exercise
judgment or choice in making planning-level decisions to advance policy goals, it is possible that
a low level employee may also be charged with making the same types of judgment calls. See
Varig Airlines, 467 U.S. at 820. By the same token, the conduct of high level government
employees may be prescribed by statute, regulation or policy such that any element of judgment
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or choice is absent. Gaubert, 499 U.S. at 322. A government employee does not exercise
discretion when statutes, regulations or policies dictate his or her conduct. In that case, the
employee has no rightful option but to conform his or her conduct to the rule, and there is no
room for judgment or choice. Gaubert, 499 U.S. at 322.
Even if an act is discretionary because it involves an element of judgment or choice, the
discretionary function exception to jurisdiction will not apply unless the judgment exercised was
the type that the exception was designed to shield from liability. Gaubert, 499 U.S. at 322-23.
The exception was designed 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 (quoting Varig Airlines, 467 U.S. at 814). Thus,
for the discretionary function exception to apply, the judgment exercised must be based on
considerations of public policy. Gaubert, 499 U.S. at 323.
In this case, the R & R notes that, “the staffing, lighting, cameras, and conversion of the
television room did not deviate from any federal statute, regulation, or policy and that FCI
Greenville management exercised its discretion within broad directives and guidelines for
housing and the associated security measures.” (Doc. 103 at 4). Upon de novo review, the Court
agrees. The evidence presented by the plaintiff indicates that no official at FCI Greenville was
aware of the potential threat against the plaintiff - in fact, plaintiff testified that he was not even
aware of any potential threat of violence. Housing, lighting, security, and staffing all fall within
the board discretion of prison administrators as they involve an element of judgment or choice
and are within the type that the exception was designed to shield from liability.
Plaintiff’s objection also raise the issue that, “the Bureau of Prisons (BOP) introduced metal
padlocks into FCI-Greenville thus violating 18 U.S.C. § 1792.” However, the Court agrees with

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the R & R that the possession of a padlock was not the proximate cause of the plaintiff’s injuries.
The proximate cause of plaintiff’s injuries was the conduct of his fellow prisoner.
4.

Conclusion.

Based on the above, the Court hereby ADOPTS the Report and Recommendation in its
entirety (Doc. 103) and GRANTS Defendant United States’ Motion (Doc. 96) for Summary
Judgment.

As there are no other defendants, this matter is DIMISSED with prejudice. The

Clerk of Court is DIRECTED to enter judgment in favor of Defendant United States of America
and against plaintiff Gerald J. Hill.
IT IS SO ORDERED.
DATED: 7/19/2017
s/J. Phil Gilbert
J. PHIL GILBERT
U.S. DISTRICT JUDGE

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