Crawford v. UNITED STATES OF AMERICA

Filing 17

MEMORANDUM OPINION AND ORDER GRANTING LEAVE TO FILE SUPPLEMENTAL RESPONSE (ECF NO. 15 ) AND GRANTING MOTION TO DISMISS (ECF NO. 8 ). The Court ORDERS this action is DISMISSED WITH PREJUDICE and STRICKEN from the docket. Signed by District Judge Thomas S. Kleeh on 6/4/2019. (dk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CLARKSBURG
KIMBERLY CRAWFORD, as
Administratrix for the
Estate of Arvel Crawford,
Plaintiff,
v.

Civil Action No. 1:17-CV-224
(Judge Kleeh)

UNITED STATES OF AMERICA,
Defendant.

MEMORANDUM OPINION AND ORDER
GRANTING LEAVE TO FILE SUPPLEMENTAL RESPONSE [ECF NO. 15]
AND GRANTING MOTION TO DISMISS [ECF NO. 8]
Pending before the Court is the United States of America’s
Motion to Dismiss for Lack of Subject Matter Jurisdiction [ECF No.
8]. It is now ripe for consideration. For the reasons discussed
below, the Court GRANTS the motion.
I.
A.

BACKGROUND

Kimberly

Crawford

Procedural History
The

Plaintiff,

(“Plaintiff”),

filed

a

complaint against the United States of America (the “Government”)
on November 22, 2017, as Administratrix for the Estate of her son,
Arvel Crawford. ECF No. 1. She alleges one count of negligence
under the Federal Tort Claims Act (“FTCA”)

based on her belief

that the Government failed to operate USP-Hazelton (“Hazelton”) in

CRAWFORD V. USA

1:17-CV-224

MEMORANDUM OPINION AND ORDER
GRANTING LEAVE TO FILE SUPPLEMENTAL RESPONSE [ECF NO. 15]
AND GRANTING MOTION TO DISMISS [ECF NO. 8]
a reasonably safe manner, leading to her incarcerated son’s death.
Id.
On February 13, 2018, United States District Judge Irene M.
Keeley issued a First Order and Notice Regarding Discovery and
Scheduling. ECF No. 6. On March 14, 2018, the Government filed its
Motion

to

Dismiss.

ECF

No.

8.

Judge

Keeley

then

stayed

all

deadlines pending resolution of the motion. ECF No. 13. On October
31, 2018, Plaintiff moved for leave to file a supplemental response
to the Government’s motion to dismiss, averring that James “Whitey”
Bulger’s murder at Hazelton indicates the serious problems at the
prison and warrants the filing of a supplemental response. ECF No.
15. On December 1, 2018, the case was transferred to United States
District Judge Thomas S. Kleeh. ECF No. 16.
B.

Factual Background
Hazelton is a federal prison located in Preston County, West

Virginia. ECF No. 1 at ¶ 1. Arvel Crawford was incarcerated at
Hazelton from 2014 until his death on March 6, 2015. Id. ¶ 6. On
that date, another inmate, the identity of whom is unknown to
Plaintiff, used a shiv to slice Mr. Crawford’s throat and kill
him. Id. ¶¶ 8, 11. Plaintiff alleges that the Government owed a
duty of care to all inmates and that the duty included ensuring
that contraband, such as a shiv, was not created or carried on the
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MEMORANDUM OPINION AND ORDER
GRANTING LEAVE TO FILE SUPPLEMENTAL RESPONSE [ECF NO. 15]
AND GRANTING MOTION TO DISMISS [ECF NO. 8]
grounds by inmates. Id. ¶ 21. As such, the Government breached its
duty when it allowed another inmate to create and/or possess a
shiv,

which

was

then

used

to

kill

Mr.

Crawford.

Id.

¶

22.

Plaintiff’s counsel made repeated requests to the Government in an
effort to learn the factual details surrounding Mr. Crawford’s
death,

but

the

Government

has

not

provided

them

with

any

information. Id. ¶¶ 9–10. Before bringing this suit, Plaintiff
filed an administrative claim against the Government, which was
denied. Id. ¶¶ 14, 17.
C.

Briefing by the Parties
1.

The Government’s Motion [ECF Nos. 8, 9]

The Government moved to dismiss the action based on lack of
subject matter jurisdiction. Generally, federal courts cannot hear
suits

against

the

federal

government

unless

the

government

expressly consents by waiving sovereign immunity. ECF No. 9 at 4.
The FTCA is a narrow exception to this general rule. Id. at 5. The
Government believes the “discretionary function exception” to the
FTCA applies here. Id. at 6. This exception provides immunity from
liability for its agents’ and employees’ performance of duties
involving discretionary decisions. Id.
The Government cites cases in which this Court, the United
States Supreme Court, and the Fourth Circuit Court of Appeals have
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MEMORANDUM OPINION AND ORDER
GRANTING LEAVE TO FILE SUPPLEMENTAL RESPONSE [ECF NO. 15]
AND GRANTING MOTION TO DISMISS [ECF NO. 8]
found

that

negligence

lawsuits

involving

prisoner-on-prisoner

violence have fallen into the discretionary function exception.
Id. at 7–11. This is because there is no explicit directive as to
how the Bureau of Prisons (“BOP”) should fulfill its obligation to
protect inmates. Id. at 8. The Government attached an affidavit
from Eric Howell (“Howell”), the Deputy Captain at Hazelton, in
which Howell states that he is “familiar with the regulations,
policies, procedures, and general practices used by the BOP to
limit, detect, and control contraband weapons” and that “[t]here
is no specific statute, regulation, or policy that dictates how
BOP employees” are to do so. ECF No. 9-1 at ¶¶ 5, 8. Specifically,
he

writes,

“there

is

no

statute,

regulation,

or

policy

that

mandates when or how BOP employees will physically search inmates
in the common area of a housing unit to detect contraband weapons.”
Id. ¶ 6. He also states that Mr. Crawford was not separated from
his

attacker

because

there

was

no

record

of

his

requesting

protective custody or being involved in another altercation. Id.
¶ 12. Attached to Howell’s affidavit are Mr. Crawford’s inmate
records, including an incident report sheet from the altercation
that led to his death. Id. at 5–16.

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MEMORANDUM OPINION AND ORDER
GRANTING LEAVE TO FILE SUPPLEMENTAL RESPONSE [ECF NO. 15]
AND GRANTING MOTION TO DISMISS [ECF NO. 8]
2.

Plaintiff’s Response [ECF No. 11]

Plaintiff argues that she is entitled to discovery relating
to policies and procedures regarding weapons, inmate patdowns, and
body searches at Hazelton — and to see whether they were followed.
ECF No. 11 at 7. Plaintiff cites a Fourth Circuit case, Rich v.
United States, 811 F.3d 140 (4th Cir. 2015), in which the court
found that discovery was necessary to determine whether adequate
patdowns or searches occurred before an inmate was attacked in the
Special Housing Unit recreation cages at Hazelton. ECF No. 11 at
4–6. Furthermore, Plaintiff argues that under Rich, even if the
facts show that the manner of conducting patdowns or searching for
contraband weapons is discretionary, subject matter jurisdiction
may exist if the conduct is marked by individual carelessness or
laziness.

Id.

Plaintiff’s

response

also

provides

a

timeline

detailing her numerous failed attempts to gain information from
the BOP about what happened to Mr. Crawford. Id. at 2–4. She then
“had no choice” but to file the lawsuit without any factual
information before the statute of limitations ran out. Id. at 4.
3.

The Government’s Reply [ECF No. 14]

The Government argues that Plaintiff is not entitled to
leverage

discovery

discovering

some

as
basis

a

“fishing
of

expedition

jurisdiction.”
5

in

ECF

the
No.

hopes
14

at

of
2.

CRAWFORD V. USA

1:17-CV-224

MEMORANDUM OPINION AND ORDER
GRANTING LEAVE TO FILE SUPPLEMENTAL RESPONSE [ECF NO. 15]
AND GRANTING MOTION TO DISMISS [ECF NO. 8]
Plaintiff,

the

Government

argues,

has

not

met

her

burden

in

establishing jurisdiction. Id. The Government reiterates that it
cannot be sued unless it consents by specifically waiving sovereign
immunity, that the FTCA is a narrow exception to this, and that
the FTCA itself includes an exception for discretionary actions.
Id. at 2–5.
Decisions about how to safeguard prisoners, the Government
argues, are generally discretionary. Id. at 4. The Government
distinguishes Rich because Rich involved policies and procedures
for inmate patdowns and searches in the Special Housing Unit. Id.
at 6. In contrast, Mr. Crawford was attacked in the common area of
a general population housing unit (the “general population”),
where prison officials have broad discretion to decide when to
search inmates for contraband. Id. The Government also argues that
Plaintiff has not established that discovery is necessary and that
the

Government

should

not

be

exposed

to

extensive

rounds

of

discovery. Id. at 9.
II.

STANDARD OF REVIEW

Rule 12 of the Federal Rules of Civil Procedure provides that
“[i]f the court determines at any time that it lacks subjectmatter jurisdiction, the court must dismiss the action.” Fed. R.
Civ. P. 12(h)(3). The burden of proving subject matter jurisdiction
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MEMORANDUM OPINION AND ORDER
GRANTING LEAVE TO FILE SUPPLEMENTAL RESPONSE [ECF NO. 15]
AND GRANTING MOTION TO DISMISS [ECF NO. 8]
on a motion to dismiss lies with the party asserting jurisdiction.
CSX Transp., Inc. v. Gilkison, No. 5:05CV202, 2009 WL 426265, at
*2 (N.D.W. Va. Feb. 19, 2009). A trial court may consider evidence
by affidavit without converting the proceeding into one for summary
judgment. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). No
presumptive truthfulness attaches to the plaintiff’s allegations,
and the existence of disputed material facts will not preclude the
trial court from evaluating the merits of the jurisdictional
claims. Gilkison, 2009 WL 426265, at *2.
III. GOVERNING LAW
Federal courts generally lack subject matter jurisdiction to
address lawsuits against the federal government unless the United
States expressly consents to be sued by waiving sovereign immunity.
FDIC v. Meyer, 510 U.S. 471, 475 (1994). The FTCA, 28 U.S.C.
§ 1346,

is

a

waiver

of

sovereign

immunity

when

the

federal

government “would be liable to the claimant in accordance with the
law of the place where the act or omission occurred” for certain
torts, such as negligence, committed by federal employees acting
within the scope of their employment. 28 U.S.C. § 1346(b)(1).

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MEMORANDUM OPINION AND ORDER
GRANTING LEAVE TO FILE SUPPLEMENTAL RESPONSE [ECF NO. 15]
AND GRANTING MOTION TO DISMISS [ECF NO. 8]
A.

The Discretionary Function Exception to the FTCA
Within the FTCA, there are exceptions under which the federal

government still may not be sued. One such exception is the
“discretionary function exception,” which includes
[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.
28 U.S.C. § 2680(a). The exception “insulates the United States
from liability for its agents’ and employees’ performance of duties
involving discretionary decisions.” Williams v. United States, 50
F.3d 299, 308 (4th Cir. 1995). The purpose of this exception, as
the Supreme Court of the United States has explained, is to
“prevent

judicial

administrative

‘second-guessing’

decisions

grounded

in

of

legislative

social,

and

economic,

and

political policy through the medium of an action in tort.” United
States

v.

S.A.

Empresa

de

Viacao

Aerea

Rio

Grandense

(Varig

Airlines), 467 U.S. 797, 814 (1984).
In

deciding

whether

the

discretionary

function

exception

applies, courts apply a two-step test. “First, the Court must
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MEMORANDUM OPINION AND ORDER
GRANTING LEAVE TO FILE SUPPLEMENTAL RESPONSE [ECF NO. 15]
AND GRANTING MOTION TO DISMISS [ECF NO. 8]
consider

the

nature

of

the

conduct

and

determine

whether

it

involves an ‘element of judgment or choice.’” Little v. United
States, No. 5:11CV41, 2014 WL 4102377, at *5 (N.D.W. Va. Aug. 18,
2014) (citing United States v. Gaubert, 499 U.S. 315, 322 (1991)).
“If a statute or regulation mandates a certain course of action,
there is no element of discretion.” Id. (citing Branch v. United
States, No. 2:05cv423, 2006 WL 1770995, at *3 (E.D. Va. June 22,
2006)). On the other hand, conduct is discretionary if the actor
is entrusted to exercise judgment or choice. Gaubert, 499 U.S. at
322–23. The second step is to “determine whether that judgment is
grounded in considerations of public policy.” Little, 2014 WL
4102377, at *5. Finally, the plaintiff bears “the burden of proof
to show an unequivocal waiver of sovereign immunity exists and to
show that none of the FTCA’s waiver exceptions apply.” LeRose v.
United States, 285 F. App’x 93, 96 (4th Cir. 2008).
B.

The Duty of Care Owed to Prisoners
The Supreme Court has held that the duty of care owed to

federal prisoners by the BOP is fixed by 18 U.S.C. § 4042. United
States v. Muniz, 374 U.S. 150, 164–65 (1963). Section 4042 defines
this as “the exercise of ordinary diligence to keep prisoners safe
and free from harm.” Little, 2014 WL 4102377, at *5 (citing Jones
v. United States, 534 F.2d 53, 54 (5th Cir. 1976)). “Under the
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MEMORANDUM OPINION AND ORDER
GRANTING LEAVE TO FILE SUPPLEMENTAL RESPONSE [ECF NO. 15]
AND GRANTING MOTION TO DISMISS [ECF NO. 8]
statute’s broad directives, the BOP retains discretion regarding
the implementation of those mandates.” Rich, 811 F.3d at 145.
As

the

Fourth

Circuit

has

recognized,

“other

federal

appellate courts have held that prisoner placement and the handling
of threats posed by inmates against one another are ‘part and
parcel of the inherently policy-laden endeavor of maintaining
order and preserving security within our nation’s prisons.’” Id.
at 145–46 (citing Cohen, 151 F.3d at 1344; Alfrey v. United States,
276 F.3d 557, 563–65 (9th Cir. 2002); Calderon v. United States,
123 F.3d 947, 951 (7th Cir. 1997)). The United States can be found
negligent in its obligation to protect prisoners if it reasonably
knew or should have known about a potential conflict between
inmates. Saunders v. United States, No. 5:14CV48, 2015 WL 997907,
at *11 (N.D.W. Va. Mar. 6, 2015).
Federal district courts in West Virginia have found that FTCA
negligence

suits

involving

prisoner-on-prisoner

violence

are

barred by the discretionary function exception. Little, 2014 WL
4102377; Evans v. United States, No. 3:15-CV-64, 2016 WL 4581339
(N.D.W. Va. Sept. 2, 2016). In Little, the United States District
Court for the Northern District of West Virginia (Judge Stamp)
examined an FTCA case involving prisoner-on-prisoner violence. The
Plaintiff, Michael Little (“Little”), was convicted of murder and
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MEMORANDUM OPINION AND ORDER
GRANTING LEAVE TO FILE SUPPLEMENTAL RESPONSE [ECF NO. 15]
AND GRANTING MOTION TO DISMISS [ECF NO. 8]
incarcerated at Hazelton. Little, 2014 WL 4102377, at *1. Within
24 hours, he was attacked in his cell block by the brother of his
murder victim. Id. Little brought an FTCA action against the
Government, arguing that the staff improperly classified him; that
the staff allowed him to be in a unit with family members of his
victim; and that the prison staff failed to properly screen other
inmates for weapons. Id. at *2.
The Government argued that the improper classification and
the

failure

to

protect

claims

should

be

dismissed

under

the

discretionary function exception to the FTCA. Id. The magistrate
judge, upon referral of the motion to dismiss, found that the
classification of an inmate is a discretionary function of the BOP
and that Little had not shown that a “family tree” search must be
conducted before classification; that the placement of inmates in
the general population is a discretionary function of Hazelton
staff; and that Little had not shown that mandatory directives
were violated by staff or that a BOP employee made a discretionary
judgment not grounded in the policy of the BOP. Id. The district
court adopted the magistrate judge’s report and recommendation and
provided the following guidance:
This Court and numerous other courts have held
that a federal prisoner's claim under the FTCA
for injuries caused by a fellow inmate are
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MEMORANDUM OPINION AND ORDER
GRANTING LEAVE TO FILE SUPPLEMENTAL RESPONSE [ECF NO. 15]
AND GRANTING MOTION TO DISMISS [ECF NO. 8]
uniformly
held
to
be
barred
by
the
discretionary function exception. Donaldson
v. United States, 281 F. App'x 75, 76–78 (3d
Cir. 2008) (upholding dismissal of FTCA claim
that federal prison employees failed to
protect plaintiff from assault by a fellow
prisoner on a finding that the claim was
barred
by
the
discretionary
function
exception); Calderon, 123 F.3d at 948–49
(same); Buchanan v. United States, 915 F.2d
969 (5th Cir. 1990) (discretionary function
exception applied to FTCA claim for damages by
prisoners held hostage by other inmates during
a prison uprising); Usry, 2013 WL 1196650 at
*8.
Id. at *7 (emphasis added).
One year later, in Rich v. United States, the Fourth Circuit
examined an FTCA claim involving prisoner-on-prisoner violence.
811 F.3d 140. The Plaintiff, Joshua Rich (“Rich”), was severely
beaten and stabbed by several other inmates while in the recreation
cage within the Special Housing Unit at Hazelton. Id. at 142. Rich
claimed

that

members

of

a

white

supremacist

group

had

been

targeting him. Id. Rich sued under the FTCA, alleging that prison
officials were negligent in failing to protect him. Id. He alleged
negligence on two grounds: (1) the decision not to separate him
from his attackers, and (2) the manner in which the officials
searched the other inmates before placing them in the recreation
cage with Rich. Id.
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MEMORANDUM OPINION AND ORDER
GRANTING LEAVE TO FILE SUPPLEMENTAL RESPONSE [ECF NO. 15]
AND GRANTING MOTION TO DISMISS [ECF NO. 8]
In the Government’s motion to dismiss, it attached several
exhibits: portions of Rich’s prison file; “Post Orders” relating
to the Special Housing Unit, which require an inmate’s hands to be
restrained behind his body before leaving for recreation and also
require patdowns, searches, and screens before inmates enter or
exit the recreation cages; and declarations from prison officials
who stated that they properly performed patdowns and searches on
inmates before the attack. Id. at 143. The Post Orders did not
otherwise describe how a patdown should be performed. Id.
The
dismiss,

district
concluding

court
that

granted
the

the

Government’s

discretionary

function

motion

to

exception

applied to both (1) the prison officials’ decision not to separate
Rich from his attackers and (2) the manner in which the officials
searched other inmates prior to placing them with Rich in the
recreation cage. Id. It found that the Post Orders did “not mandate
a specific course of conduct.” Id. The Fourth Circuit affirmed as
to the decision not to separate Rich from his attackers, finding
that the discretionary function exception applied because both
prongs of the test were met: it involved judgment or choice, and
it was a matter of public policy. Id. at 146 (writing that even
assuming his allegations of targeting by the white supremacist
group were true, “the discretionary function exception still would
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MEMORANDUM OPINION AND ORDER
GRANTING LEAVE TO FILE SUPPLEMENTAL RESPONSE [ECF NO. 15]
AND GRANTING MOTION TO DISMISS [ECF NO. 8]
apply

to

the

placement,

decisions

ultimately

of

the

depriving

officials
us

of

regarding

jurisdiction”

prisoner
(emphasis

added)).
The

court,

however,

remanded

for

additional

discovery

regarding the manner in which the officials searched other inmates,
noting that some exhibits included specific procedures to be
followed. Id. at 147–48 (adding that “the BOP ‘Program Statement’
applicable to all prisons, including USP Hazelton, provides that
‘[a]ny

pat

Correctional

search

shall

Services

be

conducted

Manual’”).

as

Furthermore,

outlined
the

Post

in

the

Orders

instructed that “when an inmate has a prior history of weapons
possession, prison officials must perform a ‘visual search’ of the
inmate, including a search of the inmate’s body cavities, prior to
his entry into a creation cage.” Id. at 143. As to the patdowns
and searches, the Rich court believed discovery was appropriate
because “disputed jurisdictional facts [were] intertwined with the
merits of Rich’s claim regarding the execution of patdowns.” Id.
at 146. The prison had provided declarations that it did in fact
perform patdowns, and the court noted that those declarations were
in contrast to Rich’s allegations that the officials “failed to
properly screen, ‘wand,’ or search the inmates entering” the
Special Housing Unit. Id.
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MEMORANDUM OPINION AND ORDER
GRANTING LEAVE TO FILE SUPPLEMENTAL RESPONSE [ECF NO. 15]
AND GRANTING MOTION TO DISMISS [ECF NO. 8]
Another year later, in 2016, this Court (Judge Groh) again
examined

a

similar

FTCA

claim

involving

prisoner-on-prisoner

violence. Evans, 2016 WL 4581339. In Evans, the Plaintiff, Michael
Shawn Evans (“Evans”), brought suit under the FTCA after another
inmate stabbed him with screwdriver at FCI Gilmer in Glenville,
West Virginia. Id. at *2. Evans alleged that the prison was
negligent in failing to protect him from his attacker. Id.
When the Government moved to dismiss, the Court found, first,
that because “there is no federal statute, regulation or policy
specifically prescribing a course of action for BOP employees to
follow in regard to contraband weapons,” the first prong of the
discretionary

function

exception

test

(judgment/choice)

was

satisfied. Id. Second, the court found that the second prong
(public policy) was satisfied: “because the BOP is given discretion
in exercising control over contraband shanks, it ‘must be presumed’
that its acts in this area are grounded in public policy.” Id. The
court

again

noted

that

“courts

have

consistently

found

that

prisoner suits alleging injury by other inmates are barred by the
discretionary function exception.” Id. (emphasis added). The Court
found,

as

it

did

in

Little,

that

the

discretionary

function

exception applied and, therefore, that it lacked subject matter
jurisdiction. Id. The Fourth Circuit affirmed the decision and
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MEMORANDUM OPINION AND ORDER
GRANTING LEAVE TO FILE SUPPLEMENTAL RESPONSE [ECF NO. 15]
AND GRANTING MOTION TO DISMISS [ECF NO. 8]
denied a rehearing en banc. See Evans v. United States, 671 F.
App’x 186 (4th Cir. 2016) (mem.). The Supreme Court then denied a
petition for writ of certiorari. See Evans v. United States, 138
S. Ct. 189 (2017) (mem.).
IV.
Plaintiff

bears

the

APPLICATION

burden

of

proving

that

a

waiver

of

sovereign immunity exists and that the discretionary function
exception of the FTCA does not apply to the Government’s conduct.
This would entail proving that the Government’s conduct was subject
to a mandate and not discretionary, such as the existence of
policies and/or directives that the Government did not follow.
Plaintiff has not met this burden here and, thus, has failed to
prove that this Court has subject matter jurisdiction to address
her claim.
The BOP must provide for the protection, safekeeping, and
care

of

inmates,

environment.

but

Decisions

this

does

about

how

not
to

guarantee
safeguard

a

risk-free

prisoners

are

generally discretionary. Judge Stamp and Judge Groh both found, at
the motion to dismiss level, that FTCA suits against the Government
stemming from prisoner-on-prisoner violence are barred by the

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MEMORANDUM OPINION AND ORDER
GRANTING LEAVE TO FILE SUPPLEMENTAL RESPONSE [ECF NO. 15]
AND GRANTING MOTION TO DISMISS [ECF NO. 8]
discretionary function exception. Notably, Judge Groh’s decision
in Evans came after the Fourth Circuit’s decision in Rich. 1
Here,

Plaintiff

does

not

explicitly

allege

that

the

Government was negligent by placing Mr. Crawford and his attacker
in the same unit. The Complaint focuses on its allegations that
the Government negligently allowed Mr. Crawford’s attacker to
create and/or possess a shiv. See ECF No. 1 at ¶ 22. Still, the
Court will address why it lacks subject matter jurisdiction based
on both a “failure to separate” theory and a “failure to protect”
theory.
A.

Separation
Although Plaintiff concedes that “the discretionary function

exception

may

[Government]’s

bar
failure

Plaintiff’s
to

separate

claims
Arvel

relating

to

the

Crawford

from

his

assailant,” 2 the Court will address it here briefly. The Court made
clear in Little that the placement of inmates in general population
is a discretionary function of federal prison staff. As discussed
above, the Fourth Circuit confirmed this reasoning in Rich, when

1

As noted, the Fourth Circuit affirmed Judge Groh’s decision and
then denied rehearing en banc post-Rich.
2 See ECF No. 11 at 1 (admitting this point but arguing that “it
still does not bar Plaintiff’s claims based upon Defendant’s
failures in allowing the assailant to have a shiv or other type of
weapon within the common area of the C-1 Housing Unit”).
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MEMORANDUM OPINION AND ORDER
GRANTING LEAVE TO FILE SUPPLEMENTAL RESPONSE [ECF NO. 15]
AND GRANTING MOTION TO DISMISS [ECF NO. 8]
it upheld the district court’s finding that the discretionary
function exception applied to the prison officials’ decision not
to separate Rich from his attackers. Rich, 811 F.3d at 146.
Here, Howell, the Deputy Captain at Hazelton, states in his
affidavit that “[t]here is no specific statute, regulation, or
policy that mandates when and how BOP employees intervene in fights
between inmates” or “how BOP employees investigate and respond to
the risk of altercations between inmates.” ECF No. 9-1 at ¶¶ 7, 8.
Furthermore, he writes that “[t]here is no record of any previous
altercation” between Mr. Crawford and his attacker or that Mr.
Crawford ever requested separation from any inmate. Id. ¶ 12. If
there had been a report or investigative efforts by staff regarding
a risk, he avers, it would have been documented. Id. Both prongs
of the discretionary function test are met: (1) based on the
affidavit,

the

separation

of

inmates

involves

discretion

and

choice; and (2) under Rich, these issues are policy-laden.
Based on the affidavit and the clear precedent in Rich, to
the extent this issue is challenged, the Court finds that Mr.
Crawford’s

placement

in

general

population

with

his

attacker

constituted discretionary conduct on the part of Hazelton staff
and falls under an exception to the FTCA. This Court does not have

18

CRAWFORD V. USA

1:17-CV-224

MEMORANDUM OPINION AND ORDER
GRANTING LEAVE TO FILE SUPPLEMENTAL RESPONSE [ECF NO. 15]
AND GRANTING MOTION TO DISMISS [ECF NO. 8]
subject matter jurisdiction over FTCA claims based on prisoner
placement.
B.

Contraband
The

actions

taken

by

Hazelton

correctional

officers

to

control contraband in the prison constitute discretionary conduct.
In his affidavit, Howell testifies that he is “familiar with the
regulations, policies, procedures, and general practices used by
the BOP to limit, detect, and control contraband weapons” and that
“[t]here

is

no

specific

statute,

regulation,

or

policy

that

dictates how BOP employees control contraband weapons.” ECF No. 91 at ¶¶ 5,6. Specifically, “there is no statute, regulation, or
policy that mandates when or how BOP employees will physically
search inmates in the common area of a housing unit to detect
contraband weapons.” Id. ¶ 6.
The circumstances in Rich can quickly be distinguished from
the circumstances surrounding Mr. Crawford’s death. Unlike the
incident that took place in Rich, Mr. Crawford was not attacked in
the

Special

Housing

Unit.

He

was

attacked

in

the

general

population. While there was evidence submitted in Rich that a
patdown policy existed in the Special Housing Unit, there has been
no evidence submitted here that a patdown policy existed in the
general population. The specific, detailed policies cited in Rich
19

CRAWFORD V. USA

1:17-CV-224

MEMORANDUM OPINION AND ORDER
GRANTING LEAVE TO FILE SUPPLEMENTAL RESPONSE [ECF NO. 15]
AND GRANTING MOTION TO DISMISS [ECF NO. 8]
stripped

away

correctional

correctional
officers

officers’

here

had

discretion,

wide

whereas

discretion

in

the

their

performance of searches and patdowns. The correctional officers in
general population are left to their own experiences and training
to police inmates in the general population for contraband.
While Mr. Crawford’s situation is distinguishable from Rich,
it is easily comparable to the situations in Little and Evans.
The incident described in Little took place in general population
at Hazelton, and this Court dismissed the case for lack of subject
matter jurisdiction under the discretionary function exception.
The incident described in Evans took place in a dining area at
Gilmer FCI, and this Court again dismissed the case for lack of
subject

matter

exception.

jurisdiction

Crucially,

the

under

Fourth

the

discretionary

Circuit

affirmed

function

the

Evans

decision after Rich had already been decided. The Fourth Circuit
then declined to rehear it en banc. The Government’s actions here
involve judgment and choice, and under guiding case law, they are
policy-laden. This Court finds that the correctional officers’
conduct here is discretionary, and this finding is consistent with
Little, Evans, and Rich. Because the conduct at issue here is
discretionary, the Court has no subject matter jurisdiction over
Plaintiff’s claims.
20

CRAWFORD V. USA

1:17-CV-224

MEMORANDUM OPINION AND ORDER
GRANTING LEAVE TO FILE SUPPLEMENTAL RESPONSE [ECF NO. 15]
AND GRANTING MOTION TO DISMISS [ECF NO. 8]
C.

Discovery
Finally, Plaintiff has not established that discovery is

necessary or warranted to determine whether this Court has subject
matter jurisdiction. Exposing the Government to extensive rounds
of discovery on the merits would undermine the discretionary
function exception and introduce the very litigation pressures
that Congress meant to avoid when it developed the exception.
Mitchell v. Forsyth, 472 U.S. 511, 525–27 (1985). Hazelton has not
developed any additional specific directives or instructions that
would have required prison officials to search Mr. Crawford or his
assailant in a general population unit. See ECF No. 9-1 at ¶¶ 6–
12. It is also clear under Fourth Circuit precedent that prisoner
placement is discretionary behavior. The Government neither knew
nor

should

have

known

that

a

potential

conflict

between

Mr.

Crawford and his attacker would arise.
Regardless, as the Government noted in its Reply brief, “the
question
situation

of
is

whether
an

the

entirely

government
different

is

negligent

inquiry

than

in

a

given

whether

the

relevant government actor was given discretion to engage in the
challenged conduct.” ECF No. 14 at 7–8 (citing Seaside Farm, Inc.
v. United States, 842 F.3d 853, 861 (4th Cir. 2016)). This is
reflected in the language of the FTCA: the discretionary function
21

CRAWFORD V. USA

1:17-CV-224

MEMORANDUM OPINION AND ORDER
GRANTING LEAVE TO FILE SUPPLEMENTAL RESPONSE [ECF NO. 15]
AND GRANTING MOTION TO DISMISS [ECF NO. 8]
applies “whether or not the discretion involved be abused.” 28
U.S.C. § 2680(a). Under the appropriate jurisdictional inquiry,
which is completely separate from the merits of the case, Plaintiff
has not met her burden to prove that the conduct of Hazelton
employees

was

not

discretionary.

Because

the

conduct

is

discretionary, the jurisdictional issues are not intertwined with
the

merits

of

the

case,

and

Plaintiff

cannot

establish

that

additional discovery would enable her to gather information that
would allow her to articulate a jurisdictional basis for this
lawsuit. The Court dismisses the case for lack of subject matter
jurisdiction.
V.
Before

dismissing

CONCLUSION

the

case,

the

Court

will

also

grant

Plaintiff’s motion for leave to file a supplemental response [ECF
No. 15]. Plaintiff’s proposed supplemental response [ECF No. 151] calls attention to James “Whitey” Bulger’s death at Hazelton in
October 2018 – nearly three years after the incident giving rise
to

this

litigation.

The

news

stories

and

related

arguments

addressed in Plaintiff’s supplemental response do not change the
Court’s analysis that the Government’s actions at issue in this
case constitute discretionary conduct under both a “failure to

22

CRAWFORD V. USA

1:17-CV-224

MEMORANDUM OPINION AND ORDER
GRANTING LEAVE TO FILE SUPPLEMENTAL RESPONSE [ECF NO. 15]
AND GRANTING MOTION TO DISMISS [ECF NO. 8]
separate” theory and a “failure to protect” theory. For the reasons
discussed above, the Court ORDERS the following:
(1)

Plaintiff’s motion for leave to file a
supplemental response is GRANTED [ECF No.
15];

(2)

the Government’s motion to dismiss is
GRANTED [ECF No. 8];

(3)

this action is DISMISSED WITH PREJUDICE
and STRICKEN from the docket.

It is so ORDERED.
The Clerk is directed to transmit copies of this Order to
counsel of record.
DATED: June 4, 2019

___________________________
THOMAS S. KLEEH
UNITED STATES DISTRICT JUDGE

23