Houghton v. USA
MEMORANDUM OPINION & ORDER: 1. The Magistrate Judge's Report and Recommendation [Record No. 36 is ADOPTED and INCORPORATED by reference. 2. The United States' Motion for Summary Judgment [Record No. 15 is GRANTED. 3. This matter is DISMISSED and STRICKEN from the Court's docket. A Judgment in favor of the United States shall issue this date. Signed by Judge Danny C. Reeves on 09/20/2016. (MRS)cc: COR, Pro Se Filer
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
UNITED STATES OF AMERICA,
Civil Action No. 6: 15-090-DCR
This matter is pending for consideration of the defendant’s motion to dismiss or, in the
alternative, motion for summary judgment. [Record No. 15] The motion has been fully briefed
and was referred to United States Magistrate Judge Hanly A. Ingram for issuance of a Report
and Recommendation pursuant to 28 U.S.C. § 636(b). [Record No. 20] Magistrate Judge
Ingram issued his report on August 9, 2016, recommending that the United States’ motion for
summary judgment be granted. [Record No. 36] Houghton filed objections on September 16,
2016. [Record No. 39] For the reasons that follow, the Court will adopt the magistrate judge’s
Report and Recommendation in all respects and grant summary judgment in the United States’
Houghton, a federal prisoner, arrived at USP McCreary in Pine Knot, Kentucky, on
approximately July 10, 2014. [Record No. 1, p. 7] He contends that, upon his arrival, Staff
Unit Manager Christopher Mabe began telling other inmates that a sex offender had recently
been placed in the unit. Id. at 8. Houghton alleges that he was the most recent inmate to arrive
and that Mabe’s comments were directed toward him. Id. Further, he contends that prison
gangs work for the BOP and that Mabe and other BOP staff members were aware of this
activity. Id. Houghton alleges that Mabe’s comments were intended to incite gang members
to attack him. On August 22, 2014, Houghton was assaulted by other prisoners in the
recreation yard. He sustained injuries to his face, head, arm, and chest during the attack.1
Following the assault, Houghton was transported to a nearby hospital where he was
treated for stab wounds and subsequently returned to USP McCreary. [Record Nos. 1, p. 9,
15-9, p. 2] He exhausted his administrative remedies and brought this action under the Federal
Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2674. Houghton seeks relief upon three
distinct theories. First, he claims that Mabe caused the assault by telling other inmates that he
is a sex offender. Second, Houghton alleges that that a “compound officer” responsible for
supervising the recreation yard was not at his assigned post at the time of the attack. Finally,
he claims that the medical team’s response following the assault was inadequate, amounting
to medical negligence.
The magistrate judge engaged in a thorough review of Houghton’s claims and
recommended that this Court grant summary judgment in favor of the United States.2
Houghton does not object to the magistrate judge’s recommendation with respect to his claims
regarding the compound officer and medical negligence. [Record No. 39, p. 3] Accordingly,
Although Houghton’s Complaint lists the date of the assault as August 27, 2014, BOP records
indicate that the assault actually occurred on August 22, 2014. [Record No. 15-9] In his
objections to the magistrate judge’s Report and Recommendation, Houghton concedes that the
assault occurred on August 22, 2014. [Record No. 39, p. 2]
magistrate judge considered exhibits attached to the United States’ motion and analyzed
the matter under Rule 56 of the Federal Rules of Civil Procedure 56 rather than Rule 12(b)(6).
the Court’s review is limited to Houghton’s claim regarding Mabe’s alleged conduct. See
Thomas v. Arn, 474 U.S. 140, 150 (1985).3
The Federal Tort Claims Act constitutes a limited waiver of the United States’
sovereign immunity. Milligan v. United States, 670 F.3d 686, 693 (6th Cir. 2012). In giving
consent to be sued under limited circumstances, the FTCA defines the district court’s
jurisdiction to entertain FTCA suits. See id. Section 1346(b) provides that district court
jurisdiction over civil actions against the government for the acts or omissions of its employees
is dependent upon whether the particular employee is “acting within the scope of his office or
employment.” Flechsig v. United States, 991 F.2d 300, 302 (6th Cir. 1993). Whether an
employee’s actions are within the scope of employment is determined under state law. See id.
Under Kentucky law, an intentional tort is within the scope of employment only when the
employee commits the tort with the intent to further the employer’s business. Patterson v.
Blair, 172 S.W.3d 361, 369 (Ky. 2005). Houghton has not alleged that Mabe made the
statements at issue based on anything other than Mabe’s own personal motives. Further, he
has not identified a plausible connection that the statements may have with the Bureau of
Prisons’ interests, and the Court can conceive of none.
In his objections, Houghton also argues that Mabe was negligent by failing protect him
from the unsafe condition created by the alleged comments. Specifically, Houghton argues
that Mabe had a responsibility to report his own conduct to his superiors, as he violated BOP
regulations by telling other inmates that Houghton was a sex offender. As the magistrate judge
The Court will make a de novo determination regarding the portions of the magistrate judge’s
recommendation to which an objection was made, 28 U.S.C.§ 636(b)(1)(c), but it is not
required to review the magistrate judge’s conclusions to which neither party has objected.
Thomas, 474 U.S. at 150.
explained, this argument underscores that Mabe was not acting in his employer’s interest when
he allegedly made the comments. Houghton also argues, for the first time, that Mabe should
have placed him in the Special Housing Unit when gossip that he was a sex offender began
circulating among the inmates. As an initial matter, arguments raised for the first time in
objections to a magistrate judge’s report are deemed waived. Glidden Co. v. Kinsella, 386 F.
App’x 535, 544 n.2 (6th Cir. 2010). Further, courts have held that a prison official’s decision
regarding how to protect one prisoner from another is shielded by the discretionary function
exception to the FTCA. See Montez v. United States, 359 F.3d 392, 399 (6th Cir. 2004).
Based on the foregoing analysis, the Court does not have jurisdiction under the FTCA
to consider Houghton’s claim regarding Mabe’s alleged conduct and the request for additional
discovery is precluded. Accordingly, it is hereby
ORDERED as follows:
The Magistrate Judge’s Report and Recommendation [Record No. 36] is
ADOPTED and INCORPORATED by reference.
The United States’ Motion for Summary Judgment [Record No. 15] is
This matter is DISMISSED and STRICKEN from the Court’s docket. A
Judgment in favor of the United States shall issue this date.
This 20th day of September, 2016.
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