ROOKS v. UNITED STATES GOVERNMENT

Filing 64

ORDER denying 51 Motion for Summary Judgment and denying 59 Motion for Summary Judgment. If the plaintiff seeks the court's assistance recruiting counsel to represent him for the purposes of settlement and trial, he should notify this Court by filing a motion for assistance recruiting counsel by no later than June 22, 2017. Counsel would be particularly beneficial to the orderly progression of the bench trial. Signed by Judge Sarah Evans Barker on 6/15/2017 (dist made) (CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

CHRISTOPHER SHAWN ROOKS,

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Plaintiff,
vs.
UNITED STATES OF AMERICA,
Defendant.

No. 1:15-cv-00079-SEB-DML

Entry Discussing Motions for Summary Judgment
Plaintiff Christopher Shawn Rooks, a federal prisoner, was assaulted by another prisoner
while confined at the United States Penitentiary in Terre Haute, Indiana (the “USP Terre Haute”)
on January 8, 2014. Rooks claims that the attack occurred due to a breakdown in security when
Demarco Releford, an inmate housed in the E-2 unit, was allowed access to the Gold Corridor, at
the same time as him, an inmate housed in the D-2 unit. Rooks further contends that BOP staff
acted negligently by not being attentive to duty and not properly monitoring the Gold Corridor
during the mainline movement. Rooks has sued the United States pursuant to the Federal Tort
Claims Act (“FTCA”) to recover damages for his injuries.
The United States moves for summary judgment, arguing that Rooks’ claims are barred by
the discretionary function exception to the FTCA’s waiver of sovereign immunity. See 28 U.S.C.
§ 2680(a). The United States further argues that even if Rooks’ claims were not barred by this
exception, his negligence claim fails as a matter of law. Rooks has responded by filing a cross
motion for summary judgment and the United States has replied. For the following reasons
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explained below, the motions for summary judgment, dkts. [51] and [59] are denied and this action
will be resolved through settlement or a bench trial.
I. Summary Judgment Standard
Summary judgment is appropriate when the movant shows that there is no genuine dispute
as to any material fact and that the movant is entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56(a). A “material fact” is one that “might affect the outcome of the suit.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To survive a motion for summary judgment, the
non-moving party must set forth specific, admissible evidence showing that there is a material
issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court views the record in
the light most favorable to the non-moving party and draws all reasonable inferences in that party’s
favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh
evidence or make credibility determinations on summary judgment because those tasks are left to
the fact-finder. O’Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011).
A dispute about a material fact is genuine only “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If no reasonable
jury could find for the non-moving party, then there is no “genuine” dispute. Scott v. Harris, 550
U.S. 372, 380 (2007). “The applicable substantive law will dictate which facts are material.”
National Soffit & Escutcheons, Inc., v. Superior Systems, Inc., 98 F.3d 262, 265 (7th Cir. 1996)
(citing Anderson, 477 U.S. at 248).
II. Statement of Undisputed Facts
The following material facts are not genuinely in dispute and will be treated as established
in this case consistent with Rule 56(g) of the Federal Rules of Civil Procedure.
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USP Terre Haute
The Federal Correctional Complex in Terre Haute, Indiana (“FCC”) consists of the high
security United States Penitentiary (“USP”), the medium security Federal Correctional Institution,
and the Federal Prison Camp. USP Terre Haute is made up of four corridors, each of which is
associated with a particular color. As relevant to this action, the West Corridor is also known as
the Green Corridor and contains, among other areas, the dining hall and UNICOR (the trade name
for the Federal Prison Industries). The South Corridor is known as the Gold Corridor and contains
the D-1, D-2, E-1, E-2, F-1, and F-2 housing units.
Relationship Between Rooks and Releford
Prior to January 8, 2014, Demarco Releford never made any threats against Rooks. In fact,
according to Rooks, both he and Releford were a part of the “West Coast table” and would
sometimes sit at the same table. Rooks was not afraid of anybody, including Releford, and, before
January 8, 2014, had no reason to believe that Releford would assault him.
Assault on January 8, 2014
On Wednesday, January 8, 2014, Rooks was housed in the D-2 Unit, and Releford was
housed in the E-2 Unit, both of which were on the south side—or Gold Corridor—of USP Terre
Haute.
Jared Hamblin was a Senior Officer assigned as the USP D-2 officer on this day. As the D2 officer, Officer Hamblin’s duties included providing supervision to the inmates, maintaining
security, contributing to the health and welfare of the inmates, and insuring inmate accountability.
On January 8, 2014, at approximately 7:10 a.m., while Officer Hamblin was monitoring
traffic in the Gold Corridor as the Unit D-2 officer, he observed Rooks enter the D-2 Unit with
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blood on his face and clothing. Officer Hamblin secured Rooks in his cell and notified the
Operations Lieutenant.
Shortly thereafter, Special Investigative Services (“SIS”) Lieutenant Jamie Baker was
informed that Rooks had been found by the unit officer with injuries consistent with having been
in a physical altercation. Nice Vision surveillance footage recorded the altercation. SIS Lieutenant
Baker recovered the homemade weapon involved in the altercation.
Case Manager Eisele
On Wednesday, January 8, 2014, Case Manager Rebekka Eisele was working as a Case
Manager for the D-2 Unit. At approximately 7:06 a.m. that morning, she did not see the altercation
between Rooks and the other inmate.
BOP Post Orders
Post Orders for assignments within USP Terre Haute consist of five categories of
documents—Special Instructions, which are guidelines for the assignment; Specific Post Orders,
which provide time frames for events that should occur each day; General Instructions, which
provide guidelines for the institution; Program Statements, which set forth the policies for
particular topics, such as the SHU; and signature pages. Each housing unit within USP Terre Haute
has Specific Post Orders for the officer assigned to that unit, which set forth time frames for certain
events to occur each day, including the completion of the morning meal.
On January 8, 2014, there were Specific Post Orders for the USP D-2 officer, the USP E2 officer, the D-2 #2 Housing Unit, and the E-2 #2 Housing Unit. Each of these Specific Post
Orders provide that at approximately 7:00 a.m., the morning meal for D-2 and E-2 inmates is to

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be completed. 1
On the morning of January 8, 2014, there was adverse weather in the form of a snow
emergency. Consistent with the guidance provided by the FCC’s Complex Captain, inmates were
to be moved through the secure corridor in response to this adverse weather event. 2
III. Material Facts in Dispute
The following material facts in dispute make summary judgment for either party
inappropriate.
Inmate Movement in Secure Corridor
Whether the Secure Corridor Operations Memorandum created a mandatory procedure
requiring that inmates be moved through the secure corridor in small groups, only one unit at a
time is a material fact in dispute. See dkt. 54-6. If so, then Releford, an inmate housed in E-2,
should have been prohibited from being in the same corridor as Rooks, an inmate housed in D-2,
at approximately 7:06 a.m., as they walked back from the dining hall after the morning meal.
The United States with the supporting Declaration of Lieutenant Bernard Halloran at Dkt.
54-1 at ¶ 14, states that instructions did not apply when inmates were returned to their housing

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The United States has filed this statement under seal on the basis that the release of this information would
be detrimental to the safety and security of the facility. This argument is rejected as to this particular
statement. This statement will no longer be kept confidential. The fact that the inmates’ breakfast meal is
concluded at approximately the same time each day is by its very nature not secretive. This is not a
circumstance of which the inmates would be unfamiliar. Even children in elementary school know
approximately what time lunch ends every day.
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The United States has filed under seal a more detailed version of this same statement. The additional
details are not material and given the plaintiff’s personal experience of being moved through the secured
corridor during the snow emergency the information in this Entry cannot be considered secret. Moreover,
Rooks was attacked in the secured corridor so the fact that the inmates were directed to move through the
corridor on the date in question is not a fact which should have been filed under seal, even if the supporting
documentation was properly submitted with restricted access.

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units. This interpretation of the Memorandum cannot be accepted at the summary judgment stage,
because the plain reading of the Memorandum does not limit the term “move” to only one
direction. This interpretation was not provided by the author of the Memorandum, nor does Lt.
Halloran provide an explanation for why the guidance should be understood to move the inmates
by housing units in one direction or not another and it is not appropriate for the Court to speculate.
A reasonable trier of fact could find Lt. Halloran not credible given the plain language of the
memorandum.
Staff Assignments
There is a material fact in dispute regarding whether staff members were staged at the
locations specified in the Special Instructions for the USP Operations Lieutenant in effect on
January 8, 2014. Dkt. 54-7 at 4. According to the Daily Assignment Roster from January 8, 2014,
the custody staff on duty at 7:06 a.m. and whose assignments would be relevant are Operations
Lieutenant Parker, Activities Lieutenant Rodriguez, and West Corridor Officer Booth.
IV. Federal Tort Claims Act
The Federal Tort Claims Act (FTCA) gives district courts exclusive jurisdiction over
claims “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); see also 28 U.S.C. § 2674. Prisoners can sue under the FTCA “to recover
damages from the United States Government for personal injuries sustained during confinement

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in a federal prison, by reason of the negligence of a government employee.” United States v. Muniz,
374 U.S. 150, 150 (1963).
V. Discussion
The United States seeks summary judgment on two bases. First, The United States argues
that the claims that Rooks advances in this action are barred by the discretionary function
exception. Second, the United States contends that Rooks cannot establish the required elements
of a negligence claim. Rooks seeks summary judgment suggesting that the undisputed facts reflect
that the United States is liable to him. The United States has the burden of proving its affirmative
defense, but Rooks has the burden of proving his negligence claim.
Discretionary Function Exception
Rooks alleges that BOP employees were negligent by allowing Demarco Releford access
to the Gold Corridor at the same time Rooks was in the corridor on the morning of January 8, 2014,
resulting in his assault. He further contends that BOP staff acted negligently by not being attentive
to duty and not properly monitoring the Gold Corridor during the mainline movement.
The FTCA is a limited waiver of the United States’ sovereign immunity. Couch v. United
States, 694 F.3d 852, 856 (7th Cir. 2012) (citing Dolan v. United States Postal Serv., 546 U.S. 481,
484 (2006)). In it, Congress waived the United States’ sovereign immunity for claims arising out
of torts committed by federal employees in certain circumstances, subject to various exceptions.
Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 217-18 (2008). One such exception is the discretionary
function exception, which maintains sovereign immunity for “[a]ny claim . . . based upon the
exercise or performance or the failure to exercise or perform a discretionary function or duty on
the party of a federal agency or an employee of the Government, whether or not the discretion
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involved be abused.” See 28 U.S.C. § 2680(a). The discretionary function exception is an
affirmative defense to liability under the FTCA that the government must plead and prove. Keller
v. United States, 771 F.3d 1021, 1023 (7th Cir. 2014) (citing Parrott v. United States, 536 F.3d
629, 634–35 (7th Cir. 2008); Reynolds v. United States, 549 F.3d 1108, 1112 (7th Cir. 2008);
Stewart v. United States, 199 F.2d 517, 520 (7th Cir. 1952); S.R.P. ex rel. Abunabba v. United
States, 676 F.3d 329, 333 n. 2 (3d Cir. 2012) (collecting cases from other circuits)). To support
summary judgment under the exception, the government must offer evidence that shows beyond
reasonable dispute that its conduct was shielded by the exception. Id.
The discretionary function exception has two elements. Calderon v. United States, 123
F.3d 947, 949 (7th Cir. 1997). “First, a discretionary act must be involved. In other words, the act
for which liability is sought to be imposed must involve ‘an element of judgment or choice.’” Id.
(quoting United States v. Gaubert, 499 U.S. 315, 322 (1991)). In addition, “‘even assuming the
challenged conduct involves an element of judgment, it remains to be decided whether that
judgment is of the kind that the discretionary function exception was designed to shield.’” Id.
(quoting Gaubert, 499 U.S. at 322). “[T]he exception protects only governmental actions and
decisions based on considerations of public policy.” Id.
The United States argues that the discretionary function exception shields it from liability.
Specifically, the United States argues that Rooks has not identified any mandatory duty with which
the BOP failed to comply. But it is the United States’ burden to prove its affirmative defense and
it cannot do so given the material facts in dispute identified above and considered in the light most
favorable to Rooks, the non-movant in this instance.

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The defendant states that the Special Instructions and Post Orders are simply guidelines to
be considered but not necessarily followed. Perhaps that position will be persuasive at trial, but at
this point in the proceedings the Secure Corridor Operations Memorandum and Special
Instructions discussed above could be understood by a reasonable trier of fact viewing the evidence
in the light most favorable to Rooks to establish mandatory procedures or directives which BOP
employees were expected to follow (particularly in the absence of any individualized evidence
which reflects that a particular employee deviated from the procedures while exercising their
discretion). See Keller v. United States, 771 F.3d 1021, 1025 (7th Cir. 2014). In the alternative, the
evidence could be interpreted to reflect that the United States is entitled to prevail on its affirmative
defense. For example, it is disputed whether the Secure Corridor Operations Memorandum
prohibited the situation in which Rooks and Releford were in the same hall at the same time. It is
also disputed whether the Special Instructions required that a BOP employee to be staged where
the altercation occurred. For these reasons, neither party is entitled to judgment as a matter of law.
Negligence Claims
The United States next argues that even if the discretionary function exception does not
apply to Rooks’ claims, his claims fail on their merits.
State tort law of the state where the tort occurred, in this case Indiana, applies when
determining “whether the duty was breached and whether the breach was the proximate cause of
the plaintiff’s injuries.” Parrott v. United States, 536 F.3d 629, 637 (7th Cir. 2008). Under Indiana
law, a “plaintiff seeking damages for negligence must establish (1) a duty owed to the plaintiff by
the defendant, (2) a breach of the duty, and (3) an injury proximately caused by the breach of
duty.” Kader v. State Dept. of Correction, 1 N.E.3d 717, 727 (Ind. Ct. App. 2013).

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Under Indiana law, when a party is in custody, “the custodian has the duty to exercise
reasonable care to preserve the life, health, and safety of the person in custody.” Sauders v. County
of Steuben, 693 N.E.2d 16, 18 (Ind. 1998). “The appropriate precautions will vary according to the
facts and circumstances presented in each case.” Id. The duty is to “take reasonable steps under
the circumstances” to protect an inmate from harm. Id.
The United States argues that it is entitled to summary judgment because Rooks has failed
to present any evidence that BOP breached a duty of care owed to him or that any purported breach
proximately caused his damages.
The duty owed by the United States is also created by 18 U.S.C. § 4042, which provides,
in relevant part, that the BOP shall “(2) provide suitable quarters and provide for the safekeeping,
care, and subsistence of all persons charged with or convicted of offenses against the United States,
... ; [and] (3) provide for the protection, instruction, and discipline of all persons charged with or
convicted of offenses against the United States....” 18 U.S.C. § 4042(a)(2), (3). Although written
in general terms, the statute “sets forth a mandatory duty of care.” Parrott, 536 F.3d at 637 (internal
quotation omitted).
Liability is not imposed every time an inmate is attacked by another inmate. Dale v. Poston,
548 F.3d 563, 569 (7th Cir. 2008). Although § 4042 imposes a duty on the BOP to exercise
ordinary diligence to keep federal inmates safe and free from harm, under this standard,
“correctional officers are expected to use ordinary care to protect prisoners from unreasonable
risks, not to provide them with a risk-free environment.” Clay v. United States, No. 05-cv-599KKC, 2007 WL 2903105, at *9 (E.D. Ky. Sept. 28, 2007) (citing Fleishour v. United States, 365

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F.2d 126, 128-29 (7th Cir. 1966)). Thus, the determinative issue is whether the BOP took
reasonable steps under the circumstances to preserve Rooks’ health and safety.
Whether BOP staff used reasonable care to preserve Rooks’s safety on January 8, 2014, is
a material fact in dispute. This finding is a result of the material facts in dispute, one of which is
whether BOP employees disregarded a mandatory post order or procedure which prohibited
Releford from being in the same corridor as Rooks at the time of the attack. In addition, there is a
material fact in dispute regarding whether the Operations Lieutenant failed to stage a staff member
at the corner of the Green and Gold Corridor near Gate 6 consistent with BOP procedures. If there
was a breach of a mandatory procedure then a reasonable fact finder could conclude that the
injuries sustained in the attack were proximately caused by the breach of duty.
VI. Conclusion
For the reasons stated above, the defendant’s and plaintiff’s motions for summary
judgment, dkts. [51] and [59] are denied.
If the plaintiff seeks the court’s assistance recruiting counsel to represent him for the
purposes of settlement and trial, he should notify this Court by filing a motion for assistance
recruiting counsel by no later than June 22, 2017. Counsel would be particularly beneficial to the
orderly progression of the bench trial.

6/15/2017
Date: __________________

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

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Distribution:
All Electronically Registered Counsel
CHRISTOPHER SHAWN ROOKS
REG NO 05919-031
POLLOCK U.S. PENITENTIARY
Inmate Mail/Parcels
P.O. BOX 2099
POLLOCK, LA 71467

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