KELLER v. UNITED STATES OF AMERICA

Filing 315

ENTRY Denying Motion for Summary Judgment - For the reasons stated above, the defendants' motion for summary judgment [dkt. 266 ] is DENIED. This action shall be resolved through settlement or trial. The bench trial in this action has been confirmed for April 17, 2017 (SEE ENTRY FOR ADDITIONAL INFORMATION). Signed by Judge Jane Magnus-Stinson on 2/9/2017.(DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

CHARLES DERRICK KELLER,

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Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendants.

Case No. 2:09-cv-00297-JMS-TAB

Entry Denying Motion for Summary Judgment
Plaintiff Charles Derrick Keller, a federal prisoner, was assaulted by another prisoner while
confined at the United States Penitentiary in Terre Haute, Indiana (the “USP Terre Haute”) on
October 25, 2007. Keller claims that the attack resulted from the prison’s negligence. Specifically,
“[h]e argues that several prison employees violated mandatory regulations and orders governing
their conduct, thus allowing the attack to occur and continue. According to Keller, Dr. Bleier did
not examine all of his available medical documents before deciding to release him into the general
prison population, as required by applicable regulations. Keller also contends that the prison guards
assigned to Tower 7, Unit 1, and Unit 2 failed to monitor their assigned areas of the yard because
they were lazy or inattentive in violation of their post orders.” Charles Keller v. United States, No.
13-3113 at 2-3 (7th Cir. November 17, 2014) (Slip Opinion), dkt. 207. Keller has sued the United
States pursuant to the Federal Tort Claims Act (“FTCA”) to recover damages for his injuries. The
United States seeks summary judgment as to all claims alleged against it and Keller has opposed
this motion.
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For the reasons explained below the motion for summary judgment [dkt. 266] is denied
and this action will be resolved either through settlement or the bench trial set for April 17, 2017.
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).

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II. Federal Tort Claims Act
The substantive law applicable to this motion for summary judgment was clearly set forth
in the Seventh Circuit’s Opinion remanding this action. The Seventh Circuit stated:
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 in a federal prison, by reason of the
negligence of a government employee.” United States v. Muniz, 374 U.S. 150, 150
(1963); see also, e.g., Coulhurst v. United States, 214 F.3d 106 (2d Cir. 2000)
(allowing prisoner to pursue FTCA claim); Bultema v. United States, 359 F.3d 379
(6th Cir. 2004) (same); Gil v. Reed, 381 F.3d 649, 659 (7th Cir. 2004) (same);
Mackovich v. United States, 630 F.3d 1134 (8th Cir. 2011) (same).
This waiver of the United States’ sovereign immunity is limited by several
exceptions, including the discretionary function exception codified in 28 U.S.C.
§ 2680(a). The exception is in the second half of a provision that states in full: “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.”
Case law elaborates the scope of this discretionary function exception. Two
requirements must be met. First, the act involved must be discretionary in the sense
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that it “involves an element of judgment or choice.” Palay v. United States, 349
F.3d 418, 427 (7th Cir. 2003), quoting United States v. Gaubert, 499 U.S. 315, 322
(1991) (internal formatting omitted). This means that where an employee deviates
from a course of action prescribed by federal statute, regulation or policy, the
employee’s acts are not immune from suit. Gaubert, 499 U.S. at 322; Berkovitz v.
United States, 486 U.S. 531, 536 (1988); Palay, 349 F.3d at 427. Second, “the
exception protects only governmental actions and decisions based on
considerations of public policy.” Gaubert, 499 U.S. at 322; Palay, 349 F.3d at 427–
28; Calderon v. United States, 123 F.3d 947, 949 (7th Cir. 1997).
The discretionary function exception is an affirmative defense to liability
under the FTCA that the government must plead and prove. 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.
Keller, No. 13-3113 at 3-5.
III. Procedural History
On July 26, 2013, this Court found that Keller’s claims were barred by the discretionary
function exception to the FTCA, 28 U.S.C. § 2680(a), and granted summary judgment in favor of
the United States on Keller’s claims. Keller appealed and the Seventh Circuit reversed and
remanded this case for further proceedings.
In reversing summary judgment in favor of the United States, the Seventh Circuit rejected
the government’s argument that all prisoner attacks fall within the discretionary function exception.
The Seventh Circuit stated that Keller has alleged that both the intake psychologist and the prison
guards assigned to monitor the relevant sections of the yard violated mandatory regulations that
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governed their conduct. Therefore, if the guards and intake psychologist failed to comply with
mandatory regulations and orders, their alleged negligence would not fall within the scope of the
discretionary function exception. Keller, No. 13-3133 at 6.
The Seventh Circuit was unable to conclude whether the discretionary function applied in
this case based on the evidence in the record. Specifically, the Seventh Circuit stated that it could
not determine what procedures and regulations applied to the intake psychologist and prison guards
at the Terre Haute facility. Id. at 7. This was a result of the government’s objections to releasing
certain information to the pro se prisoner plaintiff out of safety concerns. In an effort to get Keller
the materials he needed, the documents he requested were reviewed in camera to determine what
materials were relevant to Keller’s prosecution of his claims and to allow for the redaction of
unnecessary but sensitive statements. The Court’s failure to order (and the United States’ to file)
copies of the unredacted materials to be entered into the electronic record ex parte created a situation
in which the Seventh Circuit was unable to conclude (as this Court did in granting summary
judgment) that the documents contained no mandatory procedures or directives violated by the
intake psychologist and prison guards stationed at Units 1 and 2. Id. at 7-8. The Seventh Circuit
remanded this action so that the record could be expanded to include any specific regulations and
orders governing the conduct of the intake psychologist and prison guards stationed at Units 1 and
2. Id. at 8.
No further development of the claim based on the misconduct of the guards stationed at
Tower 7 was directed given Keller’s concession that there is a blind spot at the base of Tower 7. Id.
at fn. 1. Keller argues in his opposition brief that “there is nothing in the record to suggest that the
attack occurred in blind spot for Tower 7 officers.” Dkt. 286 at 7-8. This of course overlooks his

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own admission. The Seventh Circuit found specifically that, “Keller concedes there is a blind spot
at the base of Tower 7, so the guards stationed in Tower 7 cannot see the area where Keller was
attacked. Accordingly, Keller cannot base his claim upon alleged negligence by the Tower 7
guards.” Keller, 771 F.3d at n.1. This district court will not reconsider on remand an issue expressly
decided by the higher court, simply because the plaintiff on remand has injected uncertainty into
the record. Any claim of negligence based upon the actions of the Tower 7 guards has been decided
and will not be considered further.
In an effort to fully comply with the Seventh Circuit’s mandate to create a better-developed
record, counsel was recruited to represent the plaintiff. Discovery was reopened and pursued with
vigor.1
Following this effort, the United States again moved for summary judgment. Dkt. 266. This
was followed by a brief in support, response, reply and surreply. Dkts. 269, 286, 295, and 301. It is
this motion which is now before the court.
IV. Evidentiary Objections
Given the scope and nature of the claim at issue, the amount of evidence submitted and the
disagreements regarding that evidence is surprising. Because many of the evidentiary issues raised
are expected to be more easily resolved at trial, the Court’s observations and rulings on these
objections are limited.

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The Court is grateful to Andrew M. McCoy, Haroon Anwar, Katrina Michelle Kelly, Terry Elizabeth Hall,
and Trenton Morton for accepting the Court’s request for assistance and their diligent efforts on behalf of
Mr. Keller.

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A. United States’ Declarations
Keller argues that certain paragraphs in the declarations of Dr. Bleier, Dr. Eckert, Hector
Joyner, Lloyd Rush, and Steven Estep submitted in support of the United States’ motion for
summary judgment should be stricken because the information contained therein was not timely
disclosed and because the new testimony is inconsistent with the declarant’s deposition testimony.
Specifically, Keller argues that the Court should strike the following: Bleier Declaration: ¶¶ 3, 4, 6
(Dkt. No. 266-1); Eckert Declaration: ¶¶ 4–9, 11, 12, 14 (Dkt. No. 266-3); Joyner Declaration: ¶¶
3–6 (Dkt. No. 266-5); Rush Declaration: ¶¶ 3–5 (Dkt. No. 266-7); and Estep Declaration: ¶¶ 3–5
(Dkt. No. 266-8). According to Keller, the paragraphs he seeks to strike include information absent
from any other source available to Keller and would have been responsive to interrogatories Keller
served on the BOP on June 15, 2015. Keller argues that if the Court considers this untimely
information, Keller will be prejudiced. The United States argues in response that the information in
the declarations is not new information and that it was made known to Keller during the discovery
process.
Keller’s concerns can be adequately addressed through cross-examination of the witnesses
and relevant objections at trial.
B. Kovach’s Statements
The United States objects to the admission of Joseph A. Kovach’s witness statement because
it is not in the form of an affidavit. Dkt. 130-1 at pp. 2-3. This objection can be remedied if Kovach
is called to testify at trial.2

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Keller points out that this Court previously stated: “At this point in the proceedings the court will
accept for the purposes of summary judgment that the statement of Kovach found at dkt. 130-1 at
p. 2-3 is true and that Kovach’s testimony at trial would be consistent with that statement.” Dkt.
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C. Keller’s Medical Records
The United States challenges the admissibility of November 6, 2007, notes from Dr. Dennis
Profitt, Ph.D, who was a staff psychologist at USP Terre Haute in 2007 treating Keller. At issue is
the doctor’s monthly progress notes which state:

See Dkt. 167-13. Keller argues that Dr. Proffitt’s notes should be admitted as evidence under
Federal Rules of Evidence 803(4). This Rule states “[a] statement that: (A) is made for – and is
reasonably pertinent to—medical diagnosis or treatment and (B) describes medical history; past or
present symptoms or sensations; their inception; or their general cause” are not excluded by the rule
against hearsay. Fed. R. Evid. 803(4).
The United States’ objection is sustained. This record cannot be submitted for the purpose
of proving that Keller was attacked for making disrespectful remarks toward another inmate. The
reason for this ruling is that there is no basis to conclude that the “unofficial reports” were made for
medical diagnosis or treatment nor do these “unofficial reports” describe the general cause for
medical treatment. This is not a situation where Keller’s statements regarding his present condition
for the purpose of diagnosis and treatment were recorded. A patient has motivation to be truthful in
such circumstances, “unofficial reports” do not.

132 at 3. This accommodation was made given Keller’s pro se status and the fact that Kovach’s
statement was not material to the Court’s prior ruling. Counsel does not face the same barriers to
inmate communication as the pro se plaintiff and was expected to only submit admissible evidence
for consideration at summary judgment.
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D. Exhibit 5 of Skeel’s Deposition
Included in Keller’s Appendix of Exhibits to his Opposition to Defendants’ Motion for
Summary Judgement is a portion of Jennifer Skeel’s deposition, along with “Exhibit 5” from her
deposition. Dkt. 283-13. In his Opposition brief, however, Keller includes a picture that he identifies
as “[Dkt. 283-13 at 26 Skeel Dep. Ex. 5)],” but which contains several additions to the deposition
exhibit, including typed comments and identifications. Keller argues that these alterations are based
on the testimony of multiple witnesses and counsel’s personal observations of the USP Terre Haute
facilities. These alterations are impermissible. The altered version of Skeel Dep. Ex. 5 shall not be
considered as evidence. The competing exhibits are provided below for easy comparison.
Most troubling to the United States is a large white block covering three housing areas, but
distant from Tower 7, with the text inserted, “Between B-1 and B-2, general vicinity where Keller
was found.” [Filing No. 286 at 7 (Opp. Br.).] This is in direct contradiction to Keller’s testimony
that he was assaulted “directly below a look-out tower, more specifically tower #7.” Filing No. 20
at ¶ 5 (Am. Compl.); Filing No. 266-9 at 6 (Keller Dep. at p. 6, ln. 1-13).

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The Court agrees with the United States that the Skeel’s Exhibit 5 was impermissibly
modified. It is Keller’s admission that resulted in the Seventh Circuit finding no negligence on
behalf of the Tower 7 guards. As explained previously, this issue will not be reconsidered under
these circumstances.
E. Dr. Byrd and Mr. Bard’s Testimony
The United States objects to the admissibility of Keller’s expert witnesses’ testimony. Keller
relied on the testimony of the BOP’s expert witnesses as well as his own (Dr. Byrd and Mr. Bard)
to argue that genuine disputes of material fact exist. (See Dkts. 283-1, 283-2, 283-3, 283-10, 28311, 283-20, 283-21, 283-22).
The United States’ objections to Keller’s experts’ testimony can be better addressed during
the course of the bench trial. The experts will not be permitted to testify on questions of law, but (if
qualified) may provide their opinions regarding whether the Compound Officers assigned to Unit
1 and Unit 2 and the intake psychologist had mandatory or discretionary duties.
An additional word of caution is necessary. The fact that the experts’ testimony is not being
excluded at this point in the proceeding does not mean that it will ultimately be accepted or deemed
relevant. Keller points out that his expert witnesses reviewed the incident reports, reviewed the Post
Orders, and reviewed the testimony and affidavits of others, and, based on their experience, they
reached opinions about the officers’ actions (or failures to act) on the day in question. It is hard to
see how this testimony will be of any benefit to the Court’s determination of the merits of either the
discretionary function exception or the underlying merits of Keller’s tort claim. This Court is quite
capable of reviewing the incident reports, Post Orders, and testimony and reaching a conclusion
regarding whether the employees at issue failed to comply with mandatory procedures and further
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if the United States is liable to Keller for the injuries Keller suffered when attacked by another
inmate. Similarly, calling on an expert witness to testify regarding contradictions in other witnesses’
testimony will not be permitted. The better course is for counsel to bring those contradictory
statements to the Court’s attention through cross examination.
In addition, Keller should use caution before introducing expert testimony opining about
whether BOP employees abused their discretion. The question is whether the BOP employees had
discretion, not whether they abused their discretion. The plain language of the discretionary
function exception to the FTCA provides that no liability shall lie for claims “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) (emphasis added); see also Employers Ins. of Wausau
v. United States, 27 F.3d 245, 248 (7th Cir. 1994) (“[Plaintiff] cannot challenge the EPA’s decision
by bringing an action in tort pursuant to the FTCA, even if, as [Plaintiff] alleges, the EPA acted
negligently or abused its discretion.”); Boruski v. United States, 803 F.2d 1421, 1429 (7th Cir. 1986)
(citing United States v. Hylin, 469 U.S. 807 (1984) (remanding 715 F.2d 1206 (7th Cir. 1983) for
further consideration) (instructing that negligence in the implementation and enforcement of
mandatory federal mine safety regulations was immunized under the discretionary function
exception.).
Despite this language, Keller argues that testimony regarding whether BOP employees
abused their discretion should be permitted. In support, Keller points to case law that he argues
shows BOP employees who abuse the discretion they have will not be shielded by the FTCA. See
Rich v. United States, 811 F.3d 140, 147 (4th Cir. 2015); Coulthurst v. United States, 214 F.3d 106,

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109–110 (2d Cir. 2000). But Keller reads too much into these rulings. In Rich and Coulthurst, the
appellate courts held that the discretionary function exception would not bar a suit where the federal
actor’s negligence was a result of laziness or careless inattention. This is because discretionary
conduct cannot be grounded in a policy decision when that conduct is marked by individual
carelessness or laziness. Thus, the discretionary function exception applies even if the BOP
employee(s) abused his or her discretion, unless the employee(s) failed to exercise any discretion
as a result of laziness or careless inattention. This is consistent with the remand order in this case.
The Seventh Circuit noted that if prison officials behaved negligently without making a
discretionary judgment of the type shielded by the exception, the discretionary function exception
would not apply to their conduct. Keller, 771 F.3d 1021, 1024 (citing Palay, 349 F.3d at 432). For
example, prison guards who “left the unit unattended in order to enjoy a cigarette or a snack” would
not be covered by the exception, because they would not have made the kind of discretionary
judgment that the exception is designed to protect. Id. At trial Keller’s focus should not be on
whether the BOP employees abused their discretion, but rather on whether they failed to exercise
their discretion as a result of laziness or careless inattention.
The Court is relying on counsel to employ their professional judgment in determining
whether expert testimony is appropriate. If the parties continue to disagree, the Court will be
prepared to rule on any objections made at trial, when the reliability, relevancy and scope of the
expert’s testimony can be clarified.
V. 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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A. Inmate Intake Procedures
The Federal Correction Complex in Terre Haute (“FCC Terre Haute”) consists of a United
States Penitentiary, Federal Correctional Institution, and a Federal Prison Camp and is located in
Terre Haute, Indiana. When an inmate arrives at an institution, an inmate undergoes an intake
screening process, which takes place in the Receiving and Discharge area of the institution. Part
of that process includes a determination as to an inmate’s housing assignment. For inmates who
have substantial mental health concerns that require extra care, that process is set forth in Bureau
of Prisons (“BOP”), Program Statement 5324.07.
Program Statement 5324.07 states in relevant part:
8. INTAKE SCREENING. When an inmate with a PSY ALERT assignment
arrives at his or her designated facility, staff are to follow the steps below:


The first task involves determining if the inmate can be placed in general population.
Ordinarily, an inmate with a PSY ALERT assignment will not be placed in general
population until a psychologist reviews and clears him or her.



The SENTRY-generated Intake Screening Form now includes a Psychology Alert
prompt. When unit team staff see that the PSYCH ALERT is “YES”, they are to contact
Psychology Services (i.e., Chief or on-call psychologist) for clearance before placing
the inmate in general population.



When contacted, a psychologist will conduct a face to face interview, and then
determine the inmate’s suitability for a general population unit. Psychology Services
and the Case Management Coordinator are to develop local procedures to clear inmates
with a PSY ALERT assignment (e.g., a psychologist provides written comments and
signature on the Intake Screening form, or sends a clearance memorandum to the unit
team via Groupwise).



Based on this interview, a psychologist will determine whether the PSY Alert
assignment should be removed.

Dkt. 266-12 at 4-5. Program Statement 5324.07 also requires psychology professionals to
“review[] and consider[]” the “special psychology needs of the inmates” and to create

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“localized procedures” to clear inmates who present with a PSY Alert during intake. Dkt. 26612 at 1, 4.
At the time Keller was cleared for placement in general population at the FCC Terre Haute,
that facility did not have a local procedure written down.
Dr. Steve Eckert is the Chief Psychologist at the FCC Terre Haute, and has been since
November 2004. As Chief Psychologist, Dr. Eckert implemented local procedures for the FCC
Terre Haute. Dr. Eckert’s testimony is that as part of the local procedures, a psychologist reviews
available paperwork, relevant Central File documentation if available, clinical history including
psychology and medical records, relevant documents that accompanied the inmate upon transfer,
the inmate’s current clinical presentation, and any information the inmate provided to staff, or
failed to provide to staff, and uses the information to make a recommendation, based on an
individualized assessment, as to whether the inmate was suitable for placement into the general
population. This recommendation is documented in the inmate’s Psychology Data System (“PDS”)
records and communicated to the Unit Team.
B. Keller Arrives at FCC Terre Haute
Keller arrived at FCC Terre Haute on August 8, 2007. Keller received a “PSY Alert”
designation upon his transfer to USP Terre Haute because he attempted to commit suicide by
swallowing razor blades in June 2007.
Because Program Statement 5324.07 applied to Keller based on his previous mental health
or behavioral issues, Keller had to be cleared by a psychologist prior to being placed in general
population.

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Joseph Bleier, a psychologist assigned to the Psychology Department and who reported to
Dr. Eckert, reviewed materials concerning Keller and interviewed him face-to-face for
approximately 5-10 minutes. 3 Dr. Bleier determined that a recommendation for general population
placement was appropriate based upon Keller’s safety and security needs.
C. The FCC Terre Haute Compound
The term “compound”, as used in Post Orders, is the entire area inside the secure perimeter
fence around the USP Terre Haute. “Compound” includes all the corridors, yard, housing units,
and program areas. The area of responsibility of compound officers is the entire compound.
Various correctional officers are positioned throughout USP Terre Haute, including, for
example, Housing Unit Officers, Corridor Officers, Compound Officers, Tower 7 Officers, and
others. Post Orders address the duties correctional officers, including Compound Officers, are
expected to perform while at their post.
The Post Orders for Compound Officer 1 and 2 includes the following:
11:30 a.m. The noon meal will be in progress. Monitor inmate movement on the
Compound. When assigned inside the West corridor, ensure each and every inmate clears
the metal detector and/or is pat searched prior to entering and departing the West Corridor.
11:30 a.m. In accordance with the Inmate Movement Schedule, Unicor/CMS work
call will be conducted.
12:15 p.m. Conduct a trash call.
There are no Post Orders for Compound Officer 3 during the shift when the assault to
Keller occurred. During the lunch/mainline movement there would have been approximately 300
inmates moving.

3

The nature of the materials reviewed and the Questions asked and Answers given during this
interview are disputed.
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On October 25, 2007, a lunch/mainline movement was happening at the time of the assault.
D. October 25, 2007
On October 25, 2007, after being in the general population for 78 days, Keller was assaulted
by an inmate from another unit. Keller was assigned to Housing Unit C on the North side of the
Compound and the inmate who assaulted Keller, Wayne Robison, lived in housing unit E-2 on the
South side of the Compound.
Keller had been released to lunch and was walking from his C-unit to the dining hall when
he was attacked by Offender Robison at approximately 12:20 pm.
Keller did not know the inmate who assaulted him and had no contact with him before the
assault. Keller did not advise any correctional officer that anyone had threatened him before the
assault. Prior to the assault, no one had threatened him or made threatening gestures toward him.
The incident started at 12:20 and staff called for assistance at 12:22. Keller was noticed by
B-2 Unit Officer Secrest. The correctional officers who responded to the call for assistance or
submitted memos were all housing unit officers and lieutenants. Although there were three
compound officers on duty that day—Ms. Skeel, Mr. Estep, and Mr. Rush [Dkt. 283-32]—there
is no record of them responding to the incident. Ms. Skeel, Mr. Rush, and Mr. Estep do not recall
the assault on Mr. Keller on October 25, 2007.
On October 25, 2007, between noon and 1:00 p.m., Officer Lloyd Rush was assigned as
Compound Officer 1; Officer Steve Estep was assigned as Compound Officer 2; and Specialist
Jennifer Skeel was assigned as Compound Officer 3.

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Keller sustained multiple physical injuries as a result of the attack, including abrasions and
swelling to the head and facial areas, he had a tooth knocked out, suffered hearing loss, and was
taken to an outside hospital for medical treatment. 4
E. June 13, 2007 Assault
Prior to the incident concerning Keller, an assault of an inmate had occurred on June 13,
2007, in the central area of USP Terre Haute, that resulted in a homicide. Following this assault,
an After Action Review was performed by the BOP. The review included a review of the entire
incident, including Post Orders, staffing, and specifics of the incident.
Recommendations regarding location or placing of staff members can be made as a result
of such a review if recommendations are deemed appropriate for safety or security reasons. The
After Action Review did not recommend staff be assigned to be present in the area where the fatal
assault occurred or to be required to be in a position to observe such area at any time. After that
assault there was no mandatory rule, regulation, procedure, statute, or Post Order that would have
required posting an officer to observe the area where the assault upon Keller occurred. There was
and is no mandatory requirement to change or alter Post Orders in response to an inmate on inmate
assault or any other reason. The BOP is not mandated to post staff in specific locations because of
an assault by rule, regulation, procedure, statute, or Post Order.
VI. Material Facts in Dispute
As discussed above, to support summary judgment under the discretionary function
exception, the government must offer evidence that shows beyond reasonable dispute that its
conduct was shielded by the exception. Keller’s attack on the credibility of the BOP’s employees’

4

The severity of the mental effects resulting from the attack are disputed.
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testimony regarding the relevant intake procedures and his evidence regarding the interpretation
of the relevant Post Orders has created plausible room for disagreement. Thus, the United States
has not met its burden and a trial to evaluate the evidence and testimony is warranted to determine
what procedures and regulations applied to the intake psychologist and prison guards at the Terre
Haute facility.
The following material facts are in dispute regarding the United States’ affirmative
defense:


What was the intake procedure at USP Terre Haute for placing inmates in general
population when they arrive with a PSY ALERT designation?



Did that intake procedure comply with Bureau of Prisons (“BOP”), Program
Statement 5324.07?



Did the intake psychologist violate USP Terre Haute’s procedure such that Keller was
inappropriately placed in general population?



What mandatory procedures or directives applied to the BOP Compound Officers
assigned to Units 1 and 2 at the time of the attack?



Did the Compound Officers assigned to Units 1 and 2 comply with all mandatory
procedures or directives at the time of the attack?

The bench trial is also an opportunity for the Court to resolve the merits of the underlying
negligence claims; specifically, whether Keller can establish that there was a duty that was breached
by BOP employees that resulted in the assault upon him.5

5

The United States has the burden of proving its affirmative defense, but Keller has the burden of
proving his negligence claim. Given the development of this case, the affirmative defense and
merits of Keller’s claim shall both be resolved at the bench trial.
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VII. Conclusion
For the reasons stated above, the defendants’ motion for summary judgment [dkt. 266] is
DENIED. This action shall be resolved through settlement or trial. The bench trial in this action
has been confirmed for April 17, 2017.

Date: February 9, 2017

Distribution:
All Electronically Registered Counsel

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