Farley et al v. United States of America
DECISION AND ORDER GRANTING Defendant's 126 Renewed Motion to Dismiss; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, United States District Judge on 8/15/2017. (MEAL)- CLERK TO FOLLOW UP -
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MICHAEL L. FARLEY and
DECISION AND ORDER
UNITED STATES OF AMERICA,
Michael Farley brings this negligence action against Defendant the United States
of America under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b). Presently
before this Court is Defendant’s third motion to dismiss (or, in the alternative, for summary
judgment), in which it argues that certain exceptions to the FTCA apply here and serve
to prohibit Farley from bringing this suit. For the following reasons, Defendant’s motion
Factual History 1
At the time of the relevant events, Farley was employed as a security officer with
Asset Protection & Security (“Asset”). Asset is a private company that contracted with
the Department of Homeland Security, Immigration and Customs Enforcement (“ICE”) to
“furnish unarmed custody officer services, including management personnel, supervision,
manpower, relief custody officers, uniforms, equipment, and supplies to provide custody
For the sake of brevity and clarity, this Court will recite only those facts pertinent to the pending motion.
The facts are drawn from the parties’ Rule 56 Statements of Facts and the attached exhibits, and are
undisputed unless otherwise noted.
officer services seven (7) days a week, twenty-four (24) hours per day at” the Buffalo
Federal Detention Facility located in Batavia, New York (the “Detention Facility”). 2 As
part of Farley’s duties, he worked at different Asset-controlled posts within the Detention
Facility, including housing units.
Pursuant to Asset’s contract with ICE, Asset was
responsible for “security, care, and supervision of detainees,” as well as “for the safety
and security of the facility.” However, ICE maintained decision-making authority as to
where detainees were housed, whether they were classified as security risks, and how
and when certain detainee information would be disseminated. ICE also maintained a
staff presence on site to inspect the facility and ensure that Asset personnel were
complying with the terms of the contract. These ICE inspections included at least one
round per shift (there were three eight-hour shifts per day) through the Detention Facility,
stopping at each housing unit. During rounds, ICE supervisors would check and sign log
books, speak with Asset officers, and sometimes speak with detainees. If compliance
issues were noted, an ICE supervisor would report them to an Asset supervisor.
On August 11, 2008, Detainee T (whose full name has been purposely withheld)
arrived at the Detention Facility. Detainee T was classified as “Level 3,” the highest
security classification, due to a domestic assault conviction and a history of mental health
issues. Level 3 detainees wear red uniforms (in contrast to detainees who are deemed
lower risk, and wear either blue or orange uniforms), and are assigned to a housing unit
where they are placed in locked cells and segregated from lower risk detainees. On
August 19, 2008, Detainee T threatened to fight any officer who tried to place handcuffs
The Detention Facility was originally under the control of Immigration and Naturalization Services (“INS”),
but this changed on March 1, 2003 when INS was dissolved and its responsibilities transferred to the
Department of Homeland Security. Homeland Security Act, Pub. L. 107-296, § 291, 116 Stat. 2135 (2002).
on him during processing. This threat was documented by an Asset officer and, while it
is not clear how that report was escalated, it was eventually placed in Detainee T’s
detention file, and therefore came into the possession and control of ICE. It appears that
the report was not relayed to other Asset employees.
Detainee T was punished for his failure to follow facility guidelines by being placed
in the Segregated Housing Unit (“SHU”). On August 20, 2008, Detainee T was written up
and given fourteen days in SHU because of his refusal to be handcuffed and refusal to
return to his housing unit. Because Detainee T continued refusing handcuffs at the end
of the fourteen days, his SHU detention was renewed on September 4, 2008. The records
relating to Detainee T’s disciplinary violations document this noncompliance, but do not
indicate any violence or threats of violence.
The Asset officers who supervised Detainee T while he was in SHU also testified
that Detainee T had not made any threats or been violent, though they did state that he
was verbally combative and non-compliant with rules and orders. No Asset officer made
a log entry or any other documentation of Detainee T’s behavior while in SHU. Asset
Officer David Thom stated that he did not think it necessary to document Detainee T’s
behavior because it was already known by others and, if he wrote down every incident, it
would fill the log book. While Detainee T was in SHU, he was assessed for potential
mental health problems by ICE medical staff. The staff found him to be somewhat
delusional with evidence of paranoia, as well as a history of hearing voices, and
prescribed Risperdal with the caveat that there was no need to force the medication if
Detainee T refused to take it. The documentation of this evaluation was sent to ICE
processing and was not relayed to Asset officers.
On September 23, 2008, Detainee T was no longer refusing handcuffs and ICE
determined that there was no longer any basis to hold him in SHU. He was handcuffed
without incident and taken to be processed for release back to the “Bravo 1” locked-cell
housing unit. After “processing,” which generally takes 30-45 minutes and during which
a detainee’s cuffs are removed, Detainee T arrived at Bravo 1. He was free to leave his
cell for approximately two-and-a-half hours during that day for recreation and dinner, and
records indicate that this time also passed without incident.
Farley began his shift on the Bravo 1 housing unit at 3:55 p.m. At approximately
9:00 p.m., the cells were again unlocked for an indoor recreation period. Detainee T left
his cell and, at approximately 9:04 p.m., began to assault Farley. Farley alleges that
Detainee T approached him from behind, exclaimed, “where’s my [expletive] money, give
me my [expletive] money.” Farley also alleges that Detainee T exclaimed, “I told you that
I was going to hurt the first officer that I got my hands on and I did” and, “I told them I was
going to do it and I did it.” Though Farley’s recollection of the event is not completely
clear, he does remember being repeatedly struck on the head, struggling with Detainee
T, and trying to use his radio to call for help. Shortly thereafter, at approximately 9:05
p.m., two officers arrived, stopped the assault, and handcuffed Detainee T. Farley was
then taken to the hospital by a co-worker. He alleges that he suffered a broken nose,
neck injury, and permanent traumatic brain injury as a result of the assault.
There is no documentation of Detainee T’s alleged threats to “hurt the first officer”
he saw, nor is there any testimony from the officers who observed Detainee T in SHU
that he previously made such a threat.
Defendant has made two previous motions challenging the sufficiency of Plaintiffs’
pleadings, and familiarity with this Court’s prior orders is assumed. 3 Plaintiffs commenced
this action on March 8, 2011 by filing a complaint in this Court. Defendant filed its first
motion to dismiss on June 20, 2011. On March 4, 2012, this Court granted that motion in
part, dismissing the loss of consortium claim brought by Farley’s wife, any claims that
sought to hold Defendant liable for alleged negligence in the selection and supervision of
Asset employees, and any claims that Defendant “fail[ed] to exercise its authority to
inspect Asset’s compliance with the terms of the contract.” Farley I, 2012 WL 713399, at
*7. However, it denied the motion as to certain aspects of Farley’s FTCA claims, noting
that “the record [was] insufficiently developed” to issue a final ruling with respect to all of
Defendant’s jurisdictional arguments for dismissal. Id.
The parties then conducted limited discovery on the issue of jurisdiction, after
which, on May 22, 2013, Defendant filed a second motion to dismiss, or in the alternative,
for summary judgment. On January 15, 2014, this Court again denied the motion, finding
that two potentially viable theories for Plaintiff’s negligence claim remained: (1) that ICE
officials negligently failed to disclose relevant information to Farley regarding Detainee
T’s propensity for violence, and (2) that ICE officials negligently released Detainee T from
SHU. Farley II, 2014 WL 198331, at *6. This Court further noted that, although the
discretionary-function exception may be applicable in this case, Defendant had failed to
meet its burden demonstrating that application was appropriate because it had not set
Farley v. United States, No. 11-CV-198S, 2012 WL 713399 (W.D.N.Y. Mar. 5, 2012) (“Farley I”); Farley v.
United States, No. 11-CV-198S, 2014 WL 198331 (W.D.N.Y. Jan. 15, 2014) (“Farley II”).
forth a basis for why the alleged negligent acts could be considered discretionary
The parties have now completed discovery, and the Defendant has filed the motion
presently before this Court, the renewed Motion to Dismiss the Complaint and in the
Alternative for Summary Judgment.
Farley alleges that Defendant, specifically ICE, was negligent in operating the
Detention Facility and that this negligence led to his injuries. Plaintiffs bring these claims
against Defendant under the authority of the FTCA. Defendant argues that this Court
does not have subject matter jurisdiction over the claims or, in the alternative, that it is
entitled to summary judgment.
A case is properly dismissed for lack of subject matter jurisdiction under Rule
12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). The plaintiff bears the
burden of establishing the existence of federal jurisdiction. Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). The jurisdictional
challenge here is based on sovereign immunity, which shields the United States from suit
without its consent and strips this Court of jurisdiction. See, e.g., F.D.I.C. v. Meyer, 510
U.S. 471, 475, 114 S. Ct. 996, 1000, 127 L. Ed. 2d 308 (1994). In resolving such a
challenge, the court may consider affidavits and other evidence outside the pleadings.
See J.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004), cert. denied, 544 U.S.
968, 125 S. Ct. 1727, 161 L. Ed. 2d 616 (2005). Indeed, courts “must” consult factual
submissions “if resolution of a proffered factual issue may result in the dismissal of the
complaint for want of jurisdiction.” Robinson v. Gov't of Malaysia, 269 F.3d 133, 140 n. 6
(2d Cir. 2001).
Under Federal Rule of Civil Procedure 56, the court can grant summary judgment
only “if the movant shows that there is no genuine dispute as to any material fact.” A fact
is “material” if it “might affect the outcome of the suit under the governing law.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).
A genuine dispute exists “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id. In determining whether a genuine dispute regarding
a material fact exists, the evidence and the inferences drawn from the evidence “must be
viewed in the light most favorable to the party opposing the motion.” Adickes v. S.H.
Kress & Co., 398 U.S. 144, 158-59, 90 S. Ct. 1598, 1609, 26 L. Ed. 2d 142 (1970) (internal
quotations and citation omitted).
Subject Matter Jurisdiction
“It is elementary that the United States, as sovereign, is immune from suit save as
it consents to be sued.” United States v. Mitchell, 445 U.S. 535, 538, 100 S. Ct. 1349, 63
L. Ed. 2d 607 (1980) (internal citations, quotation marks, and modifications omitted). The
FTCA constitutes such consent by waiving sovereign immunity for:
[C]ivil actions on claims against the United States, for money damages . . .
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. 4
The law of New York State applies here.
28 U.S.C. § 1346(b)(1). While these provisions of the FTCA constitute a broad waiver of
the government's sovereign immunity, Congress has exempted certain classes of tort
When evaluating whether a claim is exempt, “the government’s waiver of
sovereign immunity under the FTCA must be strictly construed in favor of the
government.” Akutowicz v. United States, 859 F.2d 1122, 1125 (2d Cir. 1988) (internal
For purposes of the FTCA, employees of the government are “officers or
employees of any federal agency.” 28 U.S.C. § 2671. In turn, federal agencies include
“the executive departments, the judicial and legislative branches, the military
departments, independent establishments of the United States, and corporations
primarily acting as instrumentalities or agencies of the United States, but does not include
any contractor with the United States.” Id. Courts have interpreted this provision to
expressly preclude the United States from being held liable for the negligence of its
independent contractors. Roditis v. United States, 122 F.3d 108, 111 (2d Cir.1997)
(“[S]overeign immunity precludes suits against the United States for injuries caused by its
independent contractors.”). This exception has narrowed the scope of Plaintiffs’ claims
to those which relate specifically to ICE as opposed to Asset contractors. See Farley II,
2014 WL 198331, at *6.
The discretionary-function exception presents a further limitation on the waiver of
Pursuant to 28 U.S.C. § 2680(a), the discretionary-function
exception bars suits against the United States for:
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.
This exception “marks the boundary between Congress’ willingness to impose tort liability
upon the United States and its desire to protect certain governmental activities from
exposure to suit by private individuals.” United States v. S.A. Empresa de Viacao Aerea
Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S. Ct. 2755, 2762, 81 L. Ed. 2d
Separation of powers principles further support Congress’ decision 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.” Id. at
814. It is a plaintiff's burden in the first instance to come forward with a complaint that
adequately alleges a claim that is not barred by the discretionary-function exception.
Coulthurst v. United States, 214 F.3d 106, 111 (2d Cir. 2000). If the United States
responds by demonstrating that the action falls within a discretionary framework, a plaintiff
must rebut that showing sufficiently to demonstrate that there is a plausible case for nondiscretionary or non-policy action in order to defeat dismissal. Id. at 110.
The Supreme Court's decisions in Berkovitz v. United States, 486 U.S. 531, 108
S. Ct. 1954, 100 L. Ed. 2d 531 (1988), and United States v. Gaubert, 499 U.S. 315, 111
S. Ct. 1267, 113 L. Ed. 2d 335 (1991), outline the test for whether the FTCA’s
discretionary-function exception may apply to particular conduct. Under the BerkovitzGaubert test, the United States remains immune from suit “if two conditions are met: (1)
the acts alleged to be negligent must be discretionary, in that they involve an ‘element of
judgment or choice’ and are not compelled by statute or regulation and (2) the judgment
or choice in question must be grounded in ‘considerations of public policy’ or susceptible
to policy analysis.” Coulthurst, 214 F.3d at 109 (citing Gaubert, 499 U.S. at 322-23;
Berkovitz, 486 U.S. at 536-37).
Under the first prong, a court must consider whether the challenged act or omission
violated a mandatory regulation or policy that allowed no judgment or choice. Gaubert,
499 U.S. at 322-23. “The requirement of judgment or choice is not satisfied if a ‘federal
statute, regulation or policy specifically prescribes a course of action for an employee to
follow,’ because ‘the employee had no rightful option but to adhere to the directive.’” Id.
at 322 (quoting Berkovitz, 486 U.S. at 536). At the second step, determination of whether
the judgment in question is “of the kind” to which the discretionary-function exception
applies requires a court to examine whether the exercise of that judgment involves policy
considerations. The Supreme Court has indicated that “the focus of [this] inquiry is . . .
on the nature of the actions taken and on whether they are susceptible to policy analysis.”
Gaubert, 499 U.S. at 325. Thus, whether a decision is made at the operational versus
the planning level is not determinative of whether the act of judgment is the result of policy
considerations: the status of the actor in question does not control. Berkovitz, 486 U.S.
at 536; see also Brown v. United States, No. 92-CV-82S, 1994 WL 319015, at *8
(W.D.N.Y. June 8, 1994) (“Further, the subjective intent of the actor in question does not
control . . . [t]he key inquiry is whether the decisions, be they initial decisions or
implementation decisions, are necessarily susceptible to policy analysis.” (citing
Andrulonis v. United States, 952 F.2d 652, 654-55 (2d Cir. 1991), cert. denied, 505 U.S.
1204, 112 S. Ct. 2992, 120 L. Ed. 2d 869 (1992))). Finally, for purposes of determining
susceptibility to policy analysis, “it is unimportant whether the government actually
balanced economic, social, and political concerns in reaching its decision,” it is only
necessary that the decision be “susceptible to policy analysis.” In re Joint Eastern &
Southern Dist. Asbestos Litig., 891 F.2d 31, 37 (2d Cir. 1989) (citations and quotation
1. Dissemination of Information
Plaintiffs contend that ICE was negligent in its failure to disseminate information
regarding Detainee T’s violent propensities. Plaintiffs have identified the Buffalo Federal
Detention Facility Policy 3.1.13, “Facility Intelligence Program,” which states:
It is the policy of the [Detention Facility] to maintain an information based
system of identifying, tracking, and informing officers of detainees who
present unusual escape or management problems (such as suicide or
assault-prone behavior) so officers can properly supervise and manage
them on a day-to-day basis.
The Facility Intelligence Team will be responsible for informing all staff of
new arrivals who pose unusual escape or management problems, as well
as any information of this type (including information regarding assaultprone behavior) regarding detainees already housed at the [Detention
(Docket No. 136, Defendant’s Appendix, Exhibit U (the “Policy”).) Plaintiffs argue that the
August 19, 2008 Report, in which an Asset Officer recorded a threat against custodial
officers by Detainee T (that he would fight any officer who tried to place handcuffs on him
in processing), demonstrates that Detainee T had presented “assault-prone behavior”
and, therefore, that ICE was obligated by the Policy to inform all staff of the threat.
However, the Policy leaves considerable discretion in determining which detainees
present “unusual escape or management problems.” It does not define “assault-prone
behavior,” leaving it for the Facility Intelligence Team to determine whether information
should be passed on to staff and contractors. Although Plaintiffs contend that a threat
such as the one contained in the August 19, 2008 Report is sure evidence of “assault-
prone behavior,” the threat contained in the report is conditional, and was addressed by
the time that Detainee T spent in SHU.
“[I]f a regulation allows the employee discretion, the very existence of the
regulation creates a strong presumption that a discretionary act authorized by the
regulation involves consideration of the same policies which led to the promulgation of
the regulations.” Gaubert, 499 U.S. at 324. While this presumption may be rebutted upon
a showing that “the challenged actions are not the kind of conduct that can be said to be
grounded in the policy of the regulatory regime,” id. at 324-35, that is not the case here.
The Policy is specifically aimed at increasing safety in the Detention Facility, and
discretion is given to those interpreting it to determine how best to achieve that aim. This
is precisely the type of policy determination that the discretionary-function is intended to
protect: the balance of “considerations of inmate safety, officer safety, and available
resources.” Young v. United States, No. 12-CV-2342 ARR SG, 2014 WL 1153911, at *14
(E.D.N.Y. Mar. 20, 2014). The policy analysis applies as well with respect to Plaintiffs’
contention that Detainee T’s medical history and mental illness evaluation should have
been shared with staff under the Policy. There is no statute or regulation that addresses
the dissemination of medical information, and the release of such information necessarily
involves the balancing of a detainee’s privacy interests against the need for detainee and
Accordingly, the decision as to whether or not to disseminate information regarding
Detainee T was susceptible to a policy determination that involved balancing safety and
security against detainee privacy.
2. Detainee T’s Release from SHU
Plaintiffs also contend that ICE was negligent in its release of Detainee T from
SHU on September 23, 2008. Although Plaintiffs contend that the release constitutes a
violation of accepted correctional practices and procedures, they have not identified any
statutes or mandatory regulations that address where a detainee should be housed, nor
identified a duty imposed on ICE regarding evaluating a detainee for release from SHU.
“In the absence of allegations demonstrating relevant mandatory obligations, the Court
presumes that the challenged acts and omissions are discretionary and not amenable to
suit.” Molchatsky v. United States, 778 F. Supp. 2d 421, 435 (S.D.N.Y. 2011), aff’d, 713
F.3d 159 (2d Cir. 2013), and aff’d, 713 F.3d 159 (2d Cir. 2013).
Defendant contends that the decision requires considerations of policy regarding
prison security, and that ICE must balance rights of detainees, possible medical needs,
and economic constraints.
“The internal security of prisons normally is left to the
discretion of prison administrators.” Hooker v. United States, No. 11 CIV. 2840 LGS,
2013 WL 3491089, at *5-6 (S.D.N.Y. July 12, 2013) (citing Rhodes v. Chapman, 452 U.S.
337, 349 n. 14, 101 S. Ct. 2392, 2401, 69 L. Ed. 2d 59 (1981)). Decisions regarding the
housing of prisoners or detainees, as well as their handling and placement, necessarily
implicate safety and security and are therefore the sort of decisions that generally fall
under the discretionary-function exception. See Farley I, 2012 WL 713399, at *6 (“FTCA
cases have uniformly held that prison decisions regarding security matters are protected
by the discretionary function exception.” (quoting Chen v. United States, No. 09-CV-2306
(ARR), 2011 WL 2039433, at *8 (E.D.N.Y. May 24, 2011), aff’d 494 F. App’x 108 (2d Cir.
2012))). Accordingly, the decision as to release Detainee T from SHU was susceptible
to a policy determination that involved balancing safety and security against detainee
rights and available resources.
3. Negligent Guard Theory
Plaintiffs argue that, even if the decisions at issue were discretionary and
susceptible to policy analyses, the discretionary-function exception is inapplicable under
the “negligent guard” theory. In Coulthurst, the Second Circuit distinguished between two
types of negligence: negligence arising from a lack of proper care while implementing or
designing official policy, and negligence stemming from individual “carelessness,”
“laziness,” and “inattent[ion].” 214 F.3d at 109. The latter class of “negligent acts neither
involve an element of judgment or choice within the meaning of Gaubert nor are grounded
in considerations of governmental policy,” and are therefore not protected by the
discretionary-function exception to the FTCA. Id. A plaintiff is thus eligible for recovery
when an official, because of laziness, hastiness, or general carelessness, fails to perform
his discretionary duty. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 476 (2d
Cir. 2006); Chen, 2011 WL 2039433.
Plaintiffs rely on Triestman, 470 F.3d 471, and Hartman v. Holder, No. 100-CV6107-ENV-JMA, 2009 WL 792185 (E.D.N.Y. Mar. 23, 2009), both cases in which an
inmate sued the United States following an attack by another inmate, in support of their
argument that the negligent guard theory applies here. In Triestman, the Second Circuit
found the pro se plaintiff could defeat a pre-discovery motion to dismiss where he alleged
that he was attacked because guards had failed to follow internal policies requiring guardsupervision and signaling devices for inmates in locked housing units. 470 F.3d 471.
Although defendant argued that it had acted within its discretion, the court found that the
complaint raised a possible argument that the prison’s “staffing policy [fell] outside the
range of appropriate judgment, such that it [could] no longer be viewed as an exercise of
‘discretion’ under the discretionary function exception.” Id. at 477. Similarly, in Hartman,
an inmate attacked plaintiff after an officer had placed the unit on “lock down” for the night
and all the inmates were together in the dormitory room. 2009 WL 792185, at *1. Despite
rules requiring an officer to conduct frequent rounds when a unit is on lock down, the
“uncontroverted” record showed that it took the officer on duty at least fifteen minutes to
respond to a “noisy, violent altercation.” Id. at *10. The officer had also failed to address
plaintiff’s multiple reports that he had been receiving threats and his requests to be
transferred out of fear for his safety. Id. at *8. The court held that these allegations
sufficiently gave rise to an inference of careless disregard of the officer’s duties, because
the allegations supported the claim that she was “distracted or inattentive.” Id. at 10.
Like other negligent guard cases, Triestman and Hartman are “defined by
negligent disregard of official policy.” Nabe v. United States, No. 10-CV-3232 NGG VPP,
2014 WL 4678249, at *6-7 (E.D.N.Y. Sept. 19, 2014) (citing Coulthurst, 214 F.3d 106
(failure to inspect the safety of weight-room equipment); Hartman v. Holder, No. 00-CV6107, 2005 WL 2002455 (E.D.N.Y. Aug. 21, 2005); Triestman, 470 F.3d 471). In other
words, courts generally apply the negligent guard theory only where “the negligent
discretion at issue was the decision to disregard the official policy, not a negligent decision
made in pursuit of official policy.” Id. But Plaintiffs here have “not pointed to any evidence
in the record to affirmatively show that the [ICE employees] acted in a lazy or careless
manner, nor do the surrounding circumstances give rise to an inference that the officers
must have been negligent.” Young, 2014 WL 1153911, at *16-17. Instead, the only
evidence presented that suggests ICE could have been warned of the potential attack are
Plaintiff’s allegations that Detainee T had made previous threats to attack the first officer
he saw while in SHU. However, this evidence comes only in the form of rumors—the
SHU officers who were deposed have testified that they never heard any threats from
Detainee T—and hearsay—Detainee T’s alleged statements during the attack as to what
he had previously said cannot be considered because they are a recollection of past
events. 5 Fed. R. Evid. 803(3). Even taken in the light most favorable to Plaintiffs, the
facts underlying this claim place it within the category of discretionary negligence
protected by Berkovitz and Gaubert, not the exceptional category of Triestman and
Hartman. There is no indication that ICE disregarded any applicable safety policy and
so, if the decisions at issue were negligent, they were nevertheless made in furtherance
of an issue that is susceptible to policy analysis, not out of laziness or carelessness.
Farley may be correct that, if the ICE employees had made different decisions with
regard to Detainee T, the assault may have been prevented. In choosing to release
Detainee T from SHU, or in choosing not to disseminate information regarding his
conditional threat, ICE employees may have misjudged the situation. But these decisions
were not so “far outside the range of appropriate judgment that they can no longer be
viewed as an exercise of discretion.” Enigwe v. Zenk, No. 03-CV-854 CBA, 2007 WL
2713849, at *9 (E.D.N.Y. Sept. 14, 2007). Rather, faced with a possible but uncertain
threat, ICE employees “exercised . . . judgment as to which of a range of permissible
Moreover, Plaintiffs’ contention that ICE officials were negligent for not recording the threats is misplaced.
Although ICE Supervisors made periodic rounds of each unit, including SHU, they were not responsible for
recording the day-to-day happenings. That responsibility lay with Asset officers and, if Asset officers were
negligent in failing to record Detainee T’s behavior, the United States is not liable for their actions under the
independent contractor exception.
courses [was] the wisest.” Gaubert, 499 U.S. at 325. “Such decisions, even if negligent,
are shielded by the discretionary function exception.” Chen, 2011 WL 2039433, at *10
(noting that under the FTCA, a court “may not, through hindsight, second-guess the
decisions” of federal employees). Therefore the negligent guard theory does not apply.
Accordingly, because the actions taken by ICE employees satisfy both prongs of
the discretionary-function exception, and because the negligent guard theory does not
apply in this case, this court lacks subject matter jurisdiction over Plaintiffs’ claims.
Having found that this Court lacks subject matter jurisdiction over Plaintiffs’ claims,
it does not address Defendant’s summary judgment arguments.
Defendant’s motion to dismiss for lack of subject matter jurisdiction is granted.
This Court lacks jurisdiction to hear Plaintiffs’ remaining claims under the discretionaryfunction exception.
IT HEREBY IS ORDERED, that Defendant’s Renewed Motion to Dismiss (Docket
No. 126) is GRANTED;
FURTHER, that the Clerk of Court is directed to close this case.
Dated: August 15, 2017
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
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