CARTER v. UNITED STATES OF AMERICA et al

Filing 42

OPINION FILED. Signed by Judge Renee Marie Bumb on 8/15/17. (js)

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

KEVIN CARTER,
Plaintiff,
v.
UNITED STATES OF AMERICA,

Defendant.

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Civil Action No. 14-4741(RMB)

OPINION

APPEARANCES:
SALVATORE J. SICILIANO
Siciliano & Associates, LLC
16 South Haddon Avenue
P.O. Box 25
Haddonfield, NJ 08033
On behalf of Plaintiff
CHRISTOPHER D. AMORE
Assistant United States Attorney
United States Attorney’s Office
970 Broad Street, Suite 700
Newark, New Jersey 07102
On behalf of Defendant
This matter comes before the Court upon the Defendant’s
Motion to Dismiss the [Amended] Complaint Pursuant to Fed. R.
Civ. P. 12(b)(1) (ECF No. 38) and Defendant’s brief in support
(“Def’s Brief,”) ECF No. 38-2; Plaintiffs’ brief in opposition
to Defendants’ motion to dismiss (“Pls’ Brief,” ECF No. 39);

Defendants’

reply

brief

Plaintiff’s sur-reply.

(“Defs’

Reply”,

ECF

No.

40);

(“Pl’s Sur-reply,” ECF No. 41.)

and

For the

reasons discussed below, the Court will grant Defendant’s motion
to dismiss.
I.

BACKGROUND
Plaintiff

Institution

was

in

incarcerated

Fairton,

New

at

the

Jersey

Federal
(“FCI

Correctional

Fairton”)

from

September 27, 2011 to September 1, 2016, at which time he was
transferred to a Residential Re-entry Center. (Declaration of
Ondreya Barksdale (“Barksdale Decl.”), ECF No. 38-4, ¶4; Attach.
B, ECF No. 38-5.) His projected release date was March 2, 2017,
assuming he received all good conduct time available to him
pursuant to 18 U.S.C. § 3624(b). (Barksdale Decl., ¶5, Attach.
A, ECF No. 38-6).
On July 24, 2013, Plaintiff filed an administrative tort
claim with the Bureau of Prisons seeking $3,000,000 for injuries
sustained

as

a

result

of

an

assault

he

suffered

in

federal

prison on January 1, 2012. (Barksdale Decl., ¶11; Attach. D.,
ECF No. 38-8.)

On January 24, 2014, the BOP denied Plaintiff’s

administrative claim. (Barksdale Decl. ¶12, Attach. E, ECF No.
38-9.)
On July 29, 2014, Plaintiff filed the present civil rights
action, arising out of the assault on him in FCI Fairton on
January 1, 2012, when an inmate splashed Plaintiff in the face
2

and shoulder with a “super heated [] homemade concoction of
scalding

hot

coffee,

oil,

and

cleaning

chemicals

mixed

together,” and then hit Plaintiff in the head with a lock in a
sock. (Compl., ECF No. 1 at 8.)

Plaintiff filed an amended

complaint on October 21, 2014, alleging a single cause of action
under the Federal Tort Claims Act against the United States of
America. (Am. Compl., ECF No. 7, ¶26.)
Plaintiff described his negligence claim as “failure to use
reasonable care in preventing the unreasonable risk of scalding
assaults

caused

by

hot

liquids

super

heated

in

easily

[accessible] microwaves.” (Id., ¶5.) Plaintiff alleged:
As a direct result of defendants [sic]
negligence in exercising ordinary diligence
in there [sic] duty to keep plaintiff safe
from unreasonable risk of harm and there
[sic] failure to adhere to the "Zimmer
Amendment"
plaintiff
suffered
serious
physical injuries in the form of second
degree burns to his face and right shoulder
as well as nerve damage to the right side of
his facial area.
(Id., ¶25.) Plaintiff alleges Defendant was negligent by not
adhering to the Zimmer Amendment, 18 U.S.C. § [4042], which
serves as a “functional ban” on microwaves in prison. (Id.,
¶19.) He further alleges that Warden J.T. Shartle was aware of
the risk to inmate safety caused by inmate access to microwaves
because Shartle, in his previous employment at FCI Elkton, had

3

banned microwaves after an inmate on inmate assault involving a
liquid heated in a microwave. (Id., ¶¶9-10.)
Plaintiff was appointed pro bono counsel on June 3, 2016.
(Letter, ECF No. 23.) On December 5, 2016, Defendant filed a
motion

to

dismiss

for

lack

of

jurisdiction.

(Def’s

Mot.

to

Dismiss, ECF No. 38.) Defendant contends Plaintiff’s FTCA claim
is barred by the discretionary function exception to the FTCA.
(Def’s Brief, ECF No. 38-2 at 10-20.)
II.

DISCUSSION
A.

Federal Rule of Civil Procedure 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) provides that a
party may assert a defense of lack of jurisdiction by making a
motion before filing a responsive pleading. A motion under Fed.
R. Civ. P. 12(b)(1) is an appropriate vehicle for a defendant to
challenge

the

Court’s

jurisdiction

over

a

claim

under

the

Federal Tort Claims Act, based on the discretionary function
exception. See e.g., S.R.P. ex rel. Abunabba v. U.S., 676 F.3d
329 (3d Cir. 2012). The Government has the burden of proving the
applicability of the discretionary function exception. Id. at
333.
In addressing a Rule 12(b)(1) motion, a “district court may
not

presume

rather

must

the

truthfulness

‘evaluat[e]

of

for

plaintiff's

itself

the

allegations,
merits

of

but

[the]

jurisdictional claims.’” Hedges v. U.S., 404 F.3d 744, 750 (3d
4

Cir. 2005) (quoting Mortensen v. First Fed. Sav. & Loan Ass'n,
549 F.2d 884, 891 (3d Cir. 1977)). “When a Rule 12(b)(1) motion
is evaluated as a “factual attack” on the Court's subject matter
jurisdiction,

‘the

court

may

consider

evidence

outside

the

pleadings’ in evaluating that attack.” United States ex rel.
Customs Fraud Investigations, LLC. v. Victaulic Co., 839 F.3d
242, 251 (3d Cir. 2016) (quoting Gould Elecs. Inc. v. United
States, 220 F.3d 169, 176 (3d Cir. 2000)).
B.

The Discretionary Function Exception to the FTCA

The

United

States

has

sovereign

immunity

against

suit,

unless it consents to be sued. United States v. Testan, 424 U.S.
392,

399

(1976)).

“The

terms

of

[the

Federal

Government’s]

consent to be sued in any court define that court's jurisdiction
to entertain the suit.” Id.; F.D.I.C. v. Meyers, 510 U.S. 471,
475 (1994) (“sovereign immunity is jurisdictional in nature”).
Thus, absent a waiver of sovereign immunity, a district court
lacks
Federal

subject

matter

Government.

jurisdiction
See

e.g.,

over

claims

White-Squire

v.

against
U.S.

the

Postal

Service, 592 F.3d 453, 456 (3d Cir. 2010) (noting courts should
not extend the waiver of sovereign immunity beyond what Congress
intended.)
The FTCA is a limited waiver of sovereign immunity.

28

U.S.C. § 1346(b); White-Squire, 592 F.3d at 456. The Federal
Government’s consent to be sued under the FTCA is limited by the
5

“discretionary function exception.” U.S. v. Gaubert, 499 U.S.
315, 322 (1991).

28 U.S.C. § 2680(a) provides that the waiver

of sovereign immunity under the FTCA “shall not apply to”:
[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.
The legislative purpose of this exception is to “prevent
judicial

second-guessing

administrative

[by

decisions

tort

grounded

action]
in

of

legislative

social,

and

economic,

and

political policy”. Gaubert, 499 U.S. at 323 (citation omitted).
“[B]efore

determining

whether

the

discretionary

function

exception applies, a court must identify the conduct at issue.”
S.R.P. ex rel. Abunabba, 676 F.3d at 332 (citing Merando v.
U.S., 517 F.3d 160, 165 (3d Cir. 2008)).

Next, a court must

conduct a two-part test for determining if the contested conduct
falls within the exception. Gaubert, 499 U.S. at 322.
The

first

step

is

to

determine

whether

the

challenged

conduct involved an element of judgment or choice. Id. Conduct
does

not

involve

judgment

or

choice

“if

a

federal

statute,

regulation, or policy specifically prescribes a course of action
for

an

employee

to

follow,”

because

6

“the

employee

has

no

rightful option but to adhere to the directive.” Id. (quoting
Berkovitz by Berkovitz v. U.S., 486 U.S. 531, 536 (1988)).
If the challenged conduct involves an element of judgment,
the second step for the court is to determine “whether that
judgment

is

of

the

exception

was

exception

‘protects

kind

designed

to

only

that

the

discretionary

shield.”

Id.

governmental

at

function

322-23.

actions

and

“[T]he

decisions

based on considerations of public policy.’” Id. at 323 (quoting
Berkovitz, 486 U.S. at 537.) The Court explained:
For a complaint to survive a motion to
dismiss, it must allege facts which would
support
a
finding
that
the
challenged
actions are not the kind of conduct that can
be said to be grounded in the policy of the
regulatory regime. The focus of the inquiry
is not on the agent's subjective intent in
exercising
the
discretion
conferred
by
statute or regulation, but on the nature of
the actions taken and on whether they are
susceptible to policy analysis.
Id. at 324-25. Thus, a government employee may be negligent in
exercising his discretion, but the challenged conduct may still
fall

within

employee’s

the

actions

Merando,

517

decision

to

F.3d

discretionary
are
at

implement

function

susceptible
172
and

to

(finding
execute

an

exception

National

The Parties’ Arguments

7

See

Park

inspection

hazardous trees is susceptible to policy analysis.)
C.

the

analysis.

policy

if

Service’s

program

for

Defendant contends that there is no statute, regulation,
policy, or rule that either precludes or requires the BOP to
make microwave ovens accessible to inmates. (Declaration of John
T. Shartle (“Shartle Decl.”) ECF No. 38-3, ¶6). The BOP’s Trust
Fund Policy allows prison trust fund profits to be expended on
inmate service items, including “inmate-use” microwave ovens.
(Shartle Decl., ECF No. 38-3, ¶7; Attach. F, ECF No. 38-10 at
19-20.)
The warden determines the policy involving inmate use of
the

microwave

Plaintiff’s

ovens.

injury,

(Shartle

Decl.,

microwave

ovens

¶8).
were

At

the

available

time
to

of
the

inmates in FCI Fairton’s general population housing units. (Id.,
¶9). The purpose of making microwaves available for inmate use
is to provide inmates with an alternative or supplement to the
meals provided by the BOP, which are governed by a “National
Menu,” and which cannot be changed at the local level. (Id.,
¶¶10-11.)

Inmates may purchase food from the commissary and

heat it in the inmate-use ovens. (Id., ¶¶9, 11.)
Inmates are subject to disciplinary action if they heat
liquids

in

an

inmate-use

microwave

oven

to

injure

another

inmate.

(Id., ¶12.) The available reports show that Plaintiff’s

incident was the only incident involving the misuse of microwave
ovens that occurred while Shartle was the Warden at FCI Fairton.
(Id., ¶13.)

Shartle determined that the benefits of providing
8

inmate-use

microwave

ovens

to

the

general

inmate

population

outweighed the negative consequences of possible misuse. (Id.,
¶14.)
Defendant relies on several cases in support of application
of the discretionary function exception under the circumstances
presented here.

(Def’s Brief, ECF No. 38-2 at 15-16.) In Fields

v. United States, No. 5:11-cv-8-Oc-29PRL, 2013 WL 4779229 (M.D.
Fla. Sept. 5, 2013), a plaintiff prisoner claimed the BOP was
“negligent because they provided microwaves for inmates to use.”
Id. The court rejected this argument, finding that “such a claim
falls under the discretionary function exception” to the FTCA.
Id. at *6.
Defendant contends that the Third Circuit, in Graham v.
United States, No. 97-1590, 2002 WL 188573 (E.D. Pa. Feb. 05,
2002), aff’d without opinion, 47 F. App’x 198 (Table) (3d Cir.
2002),

upheld

the

application

of

the

discretionary

function

exception in analogous circumstances, where a prison official
allowed inmates access to items easily converted into weapons.
(Def’s

Brief,

ECF

No.

38-2

at

16-17.)

Similarly,

the

First

Circuit found that the discretionary function exception applied
to the BOP’s decision to allow an inmate to work as a kitchen
orderly, providing him with access to a potentially dangerous
sweeping brush. Santana-Rosa v. United States, 335 F.3d 39 (1st
Cir. 2003). (Id. at 17-18.)
9

Defendant asserts that because Warden Shartle’s decision to
make

microwave

ovens

accessible

to

BOP

inmates

involved

an

element of judgment and choice, it satisfies the first element
of a discretionary function analysis. (Id. at 19.) The second
step of the Gaubert test is met, Defendant claims, because it
takes

into

consideration

the

health

and

welfare

of

inmates,

providing inmates with alternatives to meals prepared by the
BOP, and budgetary concerns. (Def’s Brief, ECF No. 38-2 at 19.)
Defendant argues that the Zimmer Amendment, relied on by
Plaintiff, and formally known as the “No Frills Prison Act” is
inapposite

to

the

application

of

the

discretionary

function

exception. (Id. at 20-21.) Defendant submits that the No Frills
Prison Act amended the Violent Crime Control and Law Enforcement
Act of 1994 (the “Act”) and provides, in part, that none of the
appropriated funds made available by the Act “shall be used to
provide [inmates with] . . . possession of in-cell coffee pots,
hot plates, or heating elements.” (Id. at 20, quoting Omnibus
Consolidated Rescissions and Appropriations Act of 1996, Pub. L.
No. 104-134, § 611, 110 Stat. 1321 (Apr. 26, 1996)).
The Zimmer Amendment “was primarily aimed at reducing or
eliminating public funding for perceived ‘prison frills.’” (Id.
at 20, quoting Jewell v. Gonzales, 420 F. Supp. 2d 406, 421
(W.D.

Pa.

2006.))

In

1995,

Representative

Dick

Zimmer,

the

sponsor of the Amendment, stated on the floor of the House:
10

“[T]his amendment deals with prison amenities. Prison perks are
bad public policy and a waste of taxpayer dollars. My amendment
is designed to start eliminating them from Federal Prison.” (Id.
at 20-21, quoting 141 Cong. Rec. H7751-16 01.)) The microwave
ovens

that

are

accessible

to

the

inmate

population

at

FCI

Fairton are located in the general population housing units, and
are

not

in-cell

heating

elements

barred

by

the

“Zimmer

Amendment.” (Def’s Brief, ECF No. 38-2 at 21.)

Accordingly,

Defendant

support

argues

this

legislation

provides

no

for

Plaintiff’s claims. (Id.)
Defendant further argues that the discretionary function
exception is applicable here because Congress has charged the
BOP with a broad statutory duty to “provide suitable quarters
and provide for the safekeeping [and] protection . . . of all
persons charged with or convicted of offenses against the United
States.” (Def’s Brief, ECF No. 38-2 at 22, citing 18 U.S.C. §
4042.) Yet, the manner in which the BOP exercises its statutory
duty is discretionary. (Id., quoting Calderon v. United States,
123 F.3d 947, 950 (7th Cir. 1997) ([Section 4042] “sets forth no
particular conduct the BOP personnel should engage in or avoid
while attempting to fulfill their duty to protect inmates.”)
Defendant concludes that the broad discretion afforded the BOP
under

this

statute

satisfies

the

first

prong

discretionary function exemption analysis. (Id. at 22.)
11

of

the

Defendant asserts that the type of decision and judgment
involved here, safeguarding federal inmates, is grounded in the
sort

of

policy

decisions

that

the

discretionary

function

exception was designed to cover, thus meeting the second prong
of the Gaubert test. (Id. at 22-23.)
In

opposition,

Plaintiff

contends

that

all

authorities

cited by Defendant are distinguishable, and public policy favors
letting the complaint proceed. (Pl’s Brief, ECF No. 39 at 4.)
Plaintiff

distinguishes

Fields,

2013

WL

4779229

(M.D.

Fla.

2013), because the court placed weight on the fact that there
was no history of attacks with heated liquids or chemicals at
the prison. (Id. at 6-7.) Plaintiff pled that Warden Shartle had
reason to know of the danger of attacks presented by inmate use
of microwaves from his experience at FCI Elkton. (Id. at 7.)
Thus, Plaintiff contends the court should provide less deference
to

the

warden

Plaintiff

under

the

distinguishes

circumstances

Graham,

2002

WL

in

this

188573

case.
for

(Id.)

the

same

reason, that there was a factual dispute as to whether there had
been similar attacks in the past. (Id.)
Furthermore,

Plaintiff

asserts

that

even

if

the

Zimmer

Amendment does not apply to microwaves purchased with BOP Trust
Fund profits or microwaves placed in housing units, the fact
that microwaves were prohibited in some circumstances by the
legislature supports the proposition that the prison may have
12

been negligent in providing them. (Pl’s Brief, ECF No. 39 at 8.)
At the very least, the Zimmer Amendment shows a legislative
determination

that

microwaves

should

not

be

accessible

to

inmates. (Id.) The existence of the Zimmer Amendment and Warden
Shartle’s decision to provide the microwaves in Fairton should
be properly considered by the court. (Id.)
In reply, Defendant asserts that even if the warden had
knowledge of the possibility that inmates would use microwave
ovens to heat liquid to assault other inmates, the discretionary
function exception still applies because there is no “federal
statute,

regulation,

or

policy

specifically

prescrib[ing]

a

course of action for an employee to follow”). (Def’s Reply, ECF
No. 40 at 2, quoting Cestonaro v. United States, 211 F. 3d 749,
753 (3d Cir. 2000)).
Plaintiff responds that the BOP has interpreted the Zimmer
Amendment as an outright ban of certain items; thus, the conduct
at issue here does not involve judgment. (Pl’s Sur-reply, ECF
No. 41 at 2, citing Amatel v. Reno, 156 F.3d 192, 194 n.1 (D.C.
Cir. 1998) (in prison when the government absolutely monopolizes
the means of speech or controls a bottleneck . . . a refusal to
fund functions the same as an outright ban."); Kimberlin v. U.S.
Dep’t of Justice, 31 F. 3d 228, 232 (D.C. Cir. 2003) (BOP'S
interpretation of Zimmer Amendment as imposing an outright ban
of electrical instruments was reasonable).
13

C.

Analysis

First,

this

Court

must

determine

the

conduct

at

issue.

S.R.P. ex rel. Abunabba, 676 F.3d at 332 (citing Merando v.
U.S., 517 F.3d 160, 165 (3d Cir. 2008)).

The conduct at issue

here is the warden’s decision to use BOP Trust Fund profits to
purchase inmate-use microwave ovens and make them available in
the general population.
Once

the

conduct

has

been

identified,

the

court

must

determine whether the challenged conduct involved an element of
judgment or choice. Gaubert, 499 U.S. at 322. Deciding how to
spend BOP Trust fund profits involved an element of choice, and
deciding to permit inmate-use of microwave ovens in the general
population involved an element of judgment after weighing the
costs and benefits.
The final step is to determine whether the judgment at
issue was a government action based on considerations of public
policy, protected by the discretionary function exception. Id.
at 323. “The focus of the inquiry is . . . on the nature of the
actions taken and on whether they are susceptible to policy
analysis.”

Id. at 325. The nature of the action taken is two-

fold, deciding how to use BOP Trust Fund profits, and deciding
to put microwave ovens in the general population for inmate-use.
Deciding how to use government resources is subject to public
policy

analysis.

See

Merando,
14

517

F.3d

at

172

(government

decision on how to use its limited financial resources in a
manner that balanced visitor safety with visitor enjoyment and
conservation

of

National

Park

was

susceptible

of

policy

analysis).
The
involved

decision
two

to

permit

microwave

considerations,

oven

security

of

use

the

by

inmates

facility

and

providing food to inmates. (Shartle Decl., ¶¶7-14.) Weighing the
interest of providing more food options to prisoners against the
interest in keeping inmates and staff safe from potential misuse
of

the

microwaves

was

a

policy

choice

exercised

by

the

administrator in managing the prison.
Due

to

typically

the

provide

administrators.

difficulty
great

of

prison

deference

to

management,
decisions

of

courts
prison

See, e.g., Thornburgh v. Abbot, 490 U.S. 401,

407-08 (1989) (“the judiciary is ill equipped to deal with the
difficult

and

delicate

problems

of

prison

management,”

and

therefore courts must “afford[ ] considerable deference to the
determinations of prison administrators”); Turner v. Safley, 482
U.S. 78, 84-85 (1987) (“running a prison is an inordinately
difficult undertaking that requires expertise, planning, and the
commitment of resources.”)
The

Zimmer

Amendment

does

not

preclude

the

warden’s

exercise of discretion in making the policy decision that was
made here.

The purpose of the Zimmer Amendment was not to
15

dictate how an administrator provides for security of inmates
and staff, but to preclude the use of appropriated funds to
purchase luxury items for inmates. In this instance, the warden
chose to use non-appropriated funds to provide microwaves for
inmate use.

The purpose of the action was to allow inmates to

heat foods purchased in the commissary as a supplement to the
mandatory National Menu.

This is the type of “difficult and

delicate” problem of prison management where the judicial branch
has afforded deference to prison administrators.
Plaintiff

distinguishes

Fields

and

Graham,

cited

by

Defendant, because the courts placed weight on the fact that
there was no history of attacks with heated liquids or chemicals
at

the

prison.

negligence

claims

In
by

Fields,

the

Plaintiff,

court

only

one

addressed
of

which

multiple
involved

analysis of the discretionary function exception. The court’s
reliance on the lack of prior inmate attacks using boiling water
related to a negligence claim that the Government failed to
prevent the inmate assault on Plaintiff because the attack was
not reasonably foreseeable. Fields, 2013 WL 4779229, at *5. The
discretionary function exception was not raised as a defense to
that claim.
In the background section of the opinion in Graham, the
court noted that it was disputed whether there had been a series
of inmate-on-inmate stabbings and attacks with sharp objects.
16

Graham, 2002 WL 188573, at *2.
role

in

the

court’s

This fact, however, played no

analysis

and

conclusion

that

the

discretionary function exception barred Plaintiff’s FTCA claim.
Id. at *4 (“[i]t may be tragically unwise for Allenwood prison
officials to allow inmates access to razor blades . . . [b]ut
these

choices

are

within

the

discretion

that

Congress

has

committed solely to prison officials.”)
The

factors

considered

by

the

prison

administrator

in

deciding to allow inmate access to an item that could be used as
a weapon is not relevant to the analysis for the discretionary
function exception to the FTCA. It is the fact that the prison
administrator had the authority to use his or her own judgment
that matters in the analysis. In Fields and Graham, as here, the
prison administrator exercised his or her judgment in permitting
inmate access to an item that could be used as a weapon, and the
decision was protected by the discretionary function exception.
Finally, Plaintiff contends the BOP’s interpretation of the
Zimmer

Amendment,

through

its

Program

Statements

and

supplements, precludes a finding that the warden exercised his
discretionary

judgment

because

the

BOP

has

interpreted

the

Zimmer Amendment as an outright ban on certain items. However,
in

the

cases

cited

by

Plaintiff,

there

was

a

specific

regulation or Program Statement banning the item at issue.

17

BOP

For example, in Kimberlin v. U.S. Dep’t of Justice, 318
F.3d 228, 230 (D.C. Cir. 2003), there was a 1995 BOP Memorandum
providing

guidance

Amendment.

The

institutions

on

the

implementation

memorandum

will

not

included

purchase

of

instructions
electric

or

the

Zimmer

that

“new

electronic

instruments;” and “Trust fund profits . . . will not be used to
purchase or repair electric or electronic equipment. Donations
of

these

types

of

instruments

will

not

be

accepted.”

Id.

Additionally, an institutional supplement to the BOP memorandum
from FCI-Cumberland directed that “the only musical instrument
an inmate may possess is a harmonica.”

Id.

In Amatel v. Reno, 156 F.3d 192, 193 (D.C. Cir. 1998),
prisoners challenged a statute that banned the use of prison
funds to distribute sexually explicit material to prisoners. The
statute was not directly enforced, rather the BOP “promulgated
regulations

defining

the

terms

of

the

proscription

and

significantly narrowing its scope.” Id. The D.C. Circuit held
that

First

regulations

Amendment
and

not

scrutiny

the

statute

mediated through the regulations.

should

be

because

directed

all

Id. at 194.

at

the

enforcement

was

The Court held

that the regulations satisfied the demands of Turner v. Safely,
482

U.S.

78

circumscribed

(1987),
a

that

a

prison

constitutionally

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regulation,

protected

even

interest,

if

it

will

be

upheld if it is “reasonably related to legitimate penological
interests.” Id.
Kimberlin and Amatel are inapposite because there was an
identified

prison

regulation

or

policy

inmate possession of a particular item.

statement

that

banned

Here, the parties have

not cited to any BOP regulation, Program Statement, or even
institutional policy statement that prohibited inmate access to
microwaves.
access

to

Therefore,
microwaves

the
was

warden’s

decision

discretionary,

to

and

allow

subject

inmate
to

the

discretionary function exception to the FTCA.
III. CONCLUSION
For

the

reasons

discussed

above,

the

Court

grants

Defendant’s motion to dismiss for lack of jurisdiction pursuant
to Fed. R. Civ. P. 12(b)(1).
An appropriate Order follows.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: August 15, 2017

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