Ceballos v. USA
Filing
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MEMORANDUM OPINION & ORDER: that the United States motion to dismiss, R. 15 , is GRANTED. The Court will issue a separate judgment. Signed by Judge Amul R. Thapar on 11/22/11.(MJY)cc: COR, Ronnie Steven Ceballos via US Mail.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
PIKEVILLE
RONNIE STEVEN CEBALLOS,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
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Civil Action No. 11-21-ART
MEMORANDUM OPINION &
ORDER
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Plaintiff Ronnie Steven Ceballos, formerly an inmate of the U.S. Penitentiary-Big
Sandy, filed his complaint in this action under the Federal Tort Claims Act, 28 U.S.C.
§§ 2671–80 (―FTCA‖). R. 2. Ceballos asserts that federal officials acted with reckless
indifference to his safety when they failed to prevent two other inmates from attacking him
in 2009. Id. The United States filed a motion to dismiss the complaint, asserting that the
discretionary function exception bars Ceballos‘s claims because prisoner safety decisions are
based on policy considerations. R. 15. Because Ceballos‘s claims are barred, the United
States‘ motion is granted.
BACKGROUND
Ceballos alleges that on December 30, 2008, he submitted an Inmate Request to Staff
form (a ―copout‖), R. 2-3, about a threat of violence. In the copout, Ceballos informed
corrections officials that the two inmates residing in the cell next to his were members of a
violent prison gang and threatened to kill him while brandishing knives. R. 2 at 2. Ceballos
asserts that the staff ignored the information and took no action to protect him.
On January 26, 2009, a member of the same gang murdered another prisoner and
corrections officers placed the prison on ―lockdown‖ status. Id. Four days later, while the
prison was still in lockdown, Ceballos filed another copout indicating that the same two
inmates yelled to a fellow gang member that they intended to attack Ceballos as soon as the
lockdown was lifted. R. 2-5. Ceballos asserts that the prison staff again took no action to
protect him.
The government tells a different story. According to the government, officials never
received any copouts from Ceballos. R. 15-1 at 2–3.
Rather, Ceballos forged these
documents after the attack. Id. at 7. Ceballos was ―repeatedly caught forging institutional
documents for his own advantage,‖ and was also found guilty of other ―violations of
institutional disciplinary rules involving dishonesty.‖ R. 15-1 at 2; R. 15-3 at 2.
Regardless of whether Ceballos actually filed the copout forms, when the prison was
taken off lockdown status on February 2, 2009, the two inmates brutally attacked Ceballos.
R. 2 at 2. Ceballos suffered stab wounds, multiple cuts, bruises, fractures to his face, nerve
damage to his lower back, and a collapsed lung. R. 2-6. He was treated at a local hospital
and returned to the prison three days later. R. 15-1 at 4. As a result of the attack, Ceballos
states that he suffers from post-traumatic stress disorder. R. 2 at 2.
In contrast to the allegations in his complaint, Ceballos told a Special Investigative
Services (―SIS‖) officer soon after the assault that the two inmates attacked him because he
refused to give them a remote control for a television. Id. Other inmates interviewed by SIS
corroborated this version of events. R. 15-1 at 4–5. In fact, the SIS report does not indicate
that Ceballos ever told the investigating officer of prior threats from the two inmates. R. 152
2 at 9–11. Upon concluding the investigation, the Bureau of Prisons (―BOP‖) charged the
two inmates with disciplinary infractions for attempted murder, and entered a separation
order requiring them to be housed in a separate prison from Ceballos. Id. at 5.
On August 10, 2009, Ceballos filed a grievance with the warden regarding the failure
of prison staff to prevent the assault, but he did not receive a response. R. 2-1 at 2. On
September 28, 2009, Ceballos appealed to the Mid-Atlantic Regional Office. Id. at 3. The
regional office likewise did not respond. On December 11, 2009, Ceballos appealed to the
Central Office. Id. at 4. The record does not indicate whether he received a response to this
final appeal.
On April 12, 2010, Ceballos sought administrative settlement of his claim under the
FTCA by filing Standard Form 95, entitled ―Claim for Damage, Injury, or Death,‖ with the
BOP. R. 2-1 at 5-6. On the form, Ceballos detailed the circumstances of the assault and his
resulting injuries, as well as his prior efforts to warn prison staff of the threats against him.
Id. Ceballos also demanded $25 million in compensation. Id. On October 4, 2010, the BOP
denied Ceballos‘s claim, telling him that ―nothing in your record at the time of the above
incident revealed separation concerns.‖ R. 2-1 at 9. Subsequently, Ceballos filed this
complaint alleging that BOP officials‘ failure to protect him despite prior knowledge of
threats violated his rights under the Fifth and Eighth Amendments and constituted
recklessness and negligence. R. 2 at 2–3. The government filed a Rule 12(b)(1) motion to
dismiss claiming that the Court lacks subject-matter jurisdiction over Ceballos‘s claims.
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DISCUSSION
Under Rule 12(b)(1), there are two types of attacks on jurisdiction: facial and factual.
See Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). A
facial attack alleges that a complaint insufficiently pleads subject-matter jurisdiction. Id.
When reviewing a facial attack, a court takes allegations in the complaint as true, just as in a
12(b)(6) motion to dismiss. Id. A factual attack, by contrast, disputes facts alleged in a
complaint that support subject-matter jurisdiction.
Id.
In that instance, there is no
presumptive truthfulness. Id. Rather, the Court ―must weigh the conflicting evidence to
arrive at the factual predicate that subject-matter does or does not exist.‖ Id. Here, the
government has presented a factual attack because it disputes that Ceballos gave prison
officials a copout identifying his attackers.
I. Discretionary Function Exception
Ceballos brought this case under the FTCA, which provides a limited waiver of
sovereign immunity for, among other things, personal injuries caused by government
employees in the scope of their employment. 28 U.S.C. § 1346(b)(1). Of course, this is not
a blanket rule and exceptions do exist. One such exception is the discretionary function
exception. Sharp ex rel. Estate of Sharp v. United States, 401 F.3d 440, 443 (6th Cir. 2005).
This exception bars suits based on government employees‘ discretionary actions. 28 U.S.C.
§ 2680(a); see Montez ex rel. Estate of Hearlson v. United States, 359 F.3d 392, 395 (6th Cir.
2004) (―[C]ourts lack subject matter jurisdiction over acts falling within the discretionary
function exception.‖).
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But how does a court figure out whether an employee‘s act was discretionary? Of
course, there is a two-part test. First, the Court must consider whether the employee‘s act or
omission violated a mandatory regulation or policy. Sharp, 401 F.3d at 443. ―If so, the
discretionary function exception does not apply.‖ Id. (quoting Rosebush v. United States,
119 F.3d 438, 441 (6th Cir. 1997)). Here, the plaintiff does not assert that a specific course
of action was mandated. Instead, he concedes that the ―defendant has met the first prong of
the discretionary function test.‖ R. 17 at 5.
Thus, the Court proceeds to step two: was the discretionary function exception
designed to shield the action? See United States v. Gaubert, 499 U.S. 315, 322 (1991).
Here, courts look to Congress‘s purpose, which was 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.‖ United States v. Varig Airlines, 467 U.S. 797, 814
(1984).
When established government policy—through statute, regulation, or agency
guidelines—allows the agent to exercise discretion, courts presume that the agent‘s acts are
grounded in policy. Gaubert, 499 U.S. at 324–25. In this instance, the relevant statutes and
federal regulations allow ―BOP officials to exercise judgment when making decisions
regarding [prisoner] safety.‖ Montez, 359 F.3d at 397.
Presumably, this would end the inquiry. It appears that every court to have looked at
the discretionary function exception has determined that prisoner safety decisions are
grounded in policy and thus not subject to judicial second guessing. As Judge Rogers noted
in Montez, courts look to the ―nature of the decision-making process, not the nature of the
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threat‖ to determine whether the act is grounded in policy.
Id. at 399 (Rogers, J.,
concurring).
But the Montez majority did not see it that way.
The court indicated that the
discretionary function exception may not apply when the complaint alleges that BOP
officials had knowledge of a sufficiently (A) specific and (B) immediate threat. See id. at
398 (―As a general principle, a complaint that alleges the existence of a specific and
immediate threat against an inmate is more likely to survive a motion to dismiss than a
complaint that either alleges a nonspecific threat or provides only conclusory statements
regarding the existence of a threat.‖).
A. Examples of “Specific and Immediate” Threats
So how does a court determine when a threat is specific and immediate? The Sixth
Circuit illustrated the specific and immediate threat test in Montez with three case examples:
a yes, a no, and a ―close call.‖
Yes: When a prison guard stands by idly while a number of inmates chase and
severely beat another inmate, a specific and immediate threat exists. Montez, 359 F.3d at
398 (citing United States v. Muniz, 374 U.S. 150, 152 (1963)). ―A guard‘s conscious
decision not to protect an inmate from a specific and immediate attack cannot ‗be said to be
grounded‘‖ in policy. Id. (quoting Gaubert, 499 U.S. at 325).
No: The facts of Montez itself provide a ―no‖ example. There the plaintiff alleged
that prison officials should have known he was in imminent danger of attack because he was
in protective lock-up prior to the attack. Id. He also alleged that prison officials should have
known that they placed him in a facility that was inadequate to protect him from assaults by
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fellow prisoners. Id. Neither of these allegations demonstrated a specific or immediate
threat. Id. at 398-99.
Close call: A closer case exists when a plaintiff alleges that prison officials were
negligent by not informing him that his youthful appearance placed him at a higher risk of
sexual assault. Id. at 397-98 (citing Dykstra v. United States Bureau of Prisons, 140 F.3d
791, 795-96 (8th Cir. 1998)). After the plaintiff informed guards that another inmate had
been staring at him, he claims the guards were again negligent in not acting. Id. at 397–98
(citing Dykstra, 140 F.3d at 795). While the Sixth Circuit recognized this was a ―close case,‖
it did not criticize the Eighth Circuit‘s ultimate decision to dismiss the case under the
discretionary function exception. Id. at 398 (citing Dykstra, 140 F.3d at 795).
B. Why the Exception to the Exception?
Judge Rogers noted in his concurring opinion that the specific and immediate test is a
break from how courts normally think of applying the discretionary function exception. But
if courts extend the protections of the discretionary function exception to non-policy
positions—like prison guards—perhaps the ―specific and immediate‖ test makes some sense.
Indeed, in Gaubert, Justice Scalia cautioned against applying the discretionary function
exception to employees ―working at the operational level‖ who are ―not responsible for
policy decisions, even though policy considerations may be highly relevant to [their]
actions.‖ 499 U.S. at 335 (Scalia, J., concurring). Justice Scalia‘s view did not win the day
and the discretionary function exception now has broad application, including protection for
low-level government employees not vested with making policy decisions. But it cannot be
that all operational decisions are based in policy.
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Perhaps the best way to think about the Sixth Circuit‘s exception to the discretionary
function is that it allows courts to consider situations where there is a high likelihood that
actions are not based in policy. Inaction in the face of a specific and immediate threat
presents just this kind of situation. As discussed in Montez, when an employee does nothing
in response to a specific and immediate threat, it is less likely the decision was ―grounded‖ in
policy. See Montez, 359 F.3d at 398 (reasoning that inaction by BOP officials in response to
specific and immediate threats is less likely to be grounded in a specific policy). But even
inaction is not always clear. For example, a prison guard may wait to intervene in an
altercation between inmates until he feels it is safe to do so, in accordance with BOP
occupational safety policies. U.S. Dep‘t of Justice, Federal Bureau of Prisons Program
Statement 1600.09, ch. 1 (October 31, 2007) (directing employees to ―[p]erform their duties
in the safest possible manner‖). Depending on the facts of the case, this may be sufficient for
the discretionary function exception.
This shows that the exception to the exception must be a two-way street. That is, the
Sixth Circuit‘s exception to the discretionary function must involve burden shifting between
the plaintiff and defendant.
The initial presumption is that actions by BOP officials
regarding prisoner safety are grounded in policy. The plaintiff can rebut this presumption
with allegations of a specific and immediate threat because there is a higher likelihood that
actions are not grounded in public policy in these situations. But if so, the government must
still be given the opportunity to explain how its action or inaction was ―grounded‖ in some
kind of policy. Fortunately, the Court does not have to delve into burden shifting for this
case because Ceballos did not allege an immediate threat.
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II. Ceballos Alleged a Specific Threat
The threat to Ceballos was specific because he identified the two assailants that
eventually attacked him. The government asserts that Ceballos never notified prison officials
of the threat, but even if this were true, the Court could not rely on this ground to grant the
government‘s Rule 12(b)(1) motion to dismiss. When a factual attack on subject-matter
jurisdiction also implicates the merits of the plaintiff‘s claim, the Sixth Circuit requires a
district court to hold that jurisdiction exists and address the objection as an attack on the
merits of the plaintiff‘s claim. See Gentek Bldg. Prods., 491 F.3d at 330 (―If, on the other
hand, an attack on subject-matter jurisdiction also implicates an element of the cause of
action, then the district court should ‗find that jurisdiction exists and deal with the objection
as a direct attack on the merits of the plaintiff‘s claim.‘‖ (quoting Garcia v. Copenhaver, Bell
& Assoc., 104 F.3d 1256, 1261 (11th Cir. 1997)).1
Here, whether officials received
Ceballos‘s copout is not only a question about the applicability of the discretionary function
exception, but also it is relevant as to whether the officials were negligent at all. Thus, the
factual attack presented by the government is ―intertwined with the merits‖ of Ceballos‘s
1
Although there is some logic to this point, it seems odd that a court would ever assume jurisdiction in order to
―skip ahead‖ and resolve the merits of a claim. Without jurisdiction, a court is without authority. May v. Wal-Mart
Stores, Inc., 751 F. Supp. 2d 946, 949 (E.D. Ky 2010). Thus, irrespective of whether a jurisdictional decision affects
the ultimate outcome, a court‘s jurisdiction should always be determined at the outset. Steel Co. v. Citizens for a
Better Environment, 523 U.S. 83, 101 (1998) (plurality opinion) (rejecting a doctrine of ‗―hypothetical jurisdiction‘
that enables a court to resolve contested questions of law when its jurisdiction is in doubt‖); see id. (―Hypothetical
jurisdiction produces nothing more than a hypothetical judgment—which comes to the same thing as an advisory
opinion, disapproved by [the Supreme Court] from the beginning.‖) (citing Muskrat v. United States, 219 U.S. 346,
362 (1911) and Hayburn’s Case, 2 Dall. 409 (1792)). This is especially true with respect to sovereign immunity,
which protects, among other things, the coffers of the government. See Turner v. Astrue, 790 F. Supp. 2d 584,
585-86 (E.D. Ky. 2011). If courts say, ―We will not determine whether the government‘s immunity exists until we
make a merits-based decision,‖ then the purpose—in part—is lost as scarce government resources are expended.
Furthermore, when courts act without jurisdiction, we are truly usurping powers we simply do not have. See Stump
v. Sparkman, 435 U.S. 349, 356 n.6 (1978) (―Where there is clearly no jurisdiction over the subject-matter any
authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is
known to the judge, no excuse is permissible.‖ (quoting Bradley v. Fisher, 80 U.S. 335, 351–52 (1871)).
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claim. Id. at 331. Therefore, under current Sixth Circuit law, it cannot be a basis for a
12(b)(1) dismissal. Id.
III. Ceballos Did Not Allege a Sufficiently Immediate Threat
If specificity were the only issue, the Court would have to find that the discretionary
function exception does not apply. But Ceballos must also allege a sufficiently immediate
threat, which he did not.2 Ceballos warned BOP officials of the two specific inmates that
would attack him, but at best Ceballos alleged a threat at ―some point‖ in the future, not an
imminent threat. Even Ceballos concedes that the same inmates had threatened him more
than a month prior to the lockdown and had done nothing up to that point to follow through
on the threat. R. 2 at 2. This lacks the same degree of immediacy seen in Muniz, where
harm to the inmate was virtually assured unless BOP officials intervened. Additionally,
applying a strict immediacy rule makes sense for at least two reasons. First, it provides a
way to filter out decisions that are not grounded in policy and therefore not entitled to
substantial deference. Second, it is in line with other courts that have agreed that deference
to prison safety decisions is important and should only be second-guessed in the rarest of
circumstances. See Dykstra, 140 F.3d at 796 (―Prison officials supervise inmates based upon
security levels, available resources, classification of inmates, and other factors. These factors
upon which prison officials base such decisions are inherently grounded in social, political,
and economic policy. We have no difficulty in concluding that the discretionary function
2
There is some debate as to who bears the burden of proof on this point. See Sharp, 401 F.3d at 443 n.1. Because
the plaintiff bears the burden of rebutting the presumption that safety decisions by prison officials are not the kind
the discretionary function exception was designed to protect, Montez, 359 F.3d at 397, it would seem the ultimate
burden is on Ceballos to demonstrate that the exception to the exception applies. But that debate need not be
decided here. No matter who bears the burden, the immediacy element is simply not met. There is no evidence in
the record demonstrating that the threat was going to be acted on immediately. And, if the burden is on the
government, they have submitted evidence that the attack was not imminent when it was allegedly reported.
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exception applies to the correctional officer‘s decision not to place Dykstra in protective
custody or to take other protective action.‖); Cohen v. United States, 151 F.3d 1338, 1344
(11th Cir. 1998) (―Deciding how to classify prisoners and choosing the institution in which
to place them are part and parcel of the inherently policy-laden endeavor of maintaining
order and preserving security within our nation's prisons.‖); Donaldson v. United States, 281
F. App‘x 75, 77 (3d Cir. 2008) (―[T]he judgment involved in this case—i.e., how best to
protect one inmate from the threat of attack by another—‗is of the kind that the discretionary
function exception was designed to shield.‘‖); Alfrey v. United States, 276 F.3d 557, 565 (9th
Cir. 2002) (―[T]o decide what steps to take in response to a reported threat, an officer must
set priorities among all extant risks: the risk presented by the reported threat, along with the
other risks that inevitably arise in a prison. Those types of decisions implicate social and
public-policy considerations.‖).
Even accepting all of his allegations as true, Ceballos has simply not alleged facts
showing that BOP officials were aware of an immediate threat that would allow this Court to
conclude that their decisions were not grounded in public policy. Indeed, according to his
allegations alone, he provided this information during the lockdown. Obviously, during a
lockdown, guards and prison officials have many pressing considerations and priorities. If
courts were to second-guess these decisions, effective prison administration would be a thing
of the past. Ceballos has simply failed to demonstrate that they should have acted quicker on
his alleged copouts or that the threat to him was ―immediate.‖
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CONCLUSION
Accordingly, it is ORDERED that the United States‘ motion to dismiss, R. 15, is
GRANTED. The Court will issue a separate judgment.
This the 22nd day of November, 2011.
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