Boles v. The United States of Amercia

Filing 45

MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENTS MOTIONS TO DISMISS DKT. NOS. 10 , 29 , 43 AND DISMISSING CASE WITH PREJUDICE Signed by Senior Judge Irene M. Keeley on 2/9/2021. (copy counsel of record)(jmm)

Case 1:20-cv-00041-IMK Document 45 Filed 02/09/21 Page 1 of 29 PageID #: 520

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
BETTY BOLES,
as Administratrix of the
Estate of Khaalid Sharif Frederick,
Plaintiff,
v.

CIVIL ACTION NO. 1:20CV41
(Judge Keeley)

THE UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT’S
MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]
AND DISMISSING CASE WITH PREJUDICE
On March 9, 2020, the Plaintiff, Betty Boles (“Boles”), as the
administratrix

of

the

Estate

of

Khaalid

Sharif

Frederick

(“Frederick”), filed this wrongful death action against the United
States of America (“United States”) under the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. §§ 1346, 2671, et seq. (Dkt. No. 1). At the
time of his death, Frederick was a prisoner in the custody of the
Federal Bureau of Prisons (“BOP”) at USP Hazelton. Boles, who is
Frederick’s sister, alleges that the BOP breached its duty to
reasonably ensure Frederick’s safety, and thereby caused his death.
Pending are several motions filed by the Government to dismiss
Boles’s claim for lack of subject matter jurisdiction under Federal
Rule of Civil Procedure 12(b)(1) (Dkt. Nos. 10, 29, 43). The
Government claims that it is immune from Bole’s suit because its
allegations fall within the discretionary function exception to the
FTCA.

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MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT’S
MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]
AND DISMISSING CASE WITH PREJUDICE
Following four (4) months of discovery and several hearings on
this issue, the Court concludes that Boles’s claim is barred by the
discretionary function exception and that it lacks jurisdiction to
address her claim.
I. BACKGROUND
A.

Factual History
On June 19, 2017, Frederick sustained puncture wounds to his

stomach and back during an altercation with another inmate in a
general population housing unit at USP Hazelton1 (Dkt. No. 1 at 5).
The BOP transported Frederick to Ruby Memorial Hospital (“Ruby”)
for treatment. At Ruby, the doctors ordered x-rays and CT scans of
his chest and pelvis. Id. These diagnostic tests revealed that
Frederick had two “superficial” puncture wounds involving “only
subcutaneous fat of the body wall.” Frederick remained overnight at
Ruby for observation and was discharged on June 20, 2017. Id. at 6.
On June 21, 2017, at approximately 9:30 A.M., while in his
cell in the Special Housing Unit (“SHU”) at USP Hazelton, Frederick
told a guard that he needed medical attention. Id. After the guard
placed him in hand restraints and transferred him to a holding

1

The facts are taken from the Complaint and are construed in the
light most favorable to the plaintiffs. See Kerns v. United States,
585 F.3d 187, 193 (4th Cir. 2009)
2

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MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT’S
MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]
AND DISMISSING CASE WITH PREJUDICE
cell, Frederick became unresponsive. Id. BOP staff moved Frederick
to

the

Health

Services

examination

room,

where

he

stopped

breathing. Id. At approximately 9:40 A.M., BOP staff initiated CPR,
transported Frederick to the Health Services trauma room, and
intubated him. Id. Paramedics arrived at 10:18 A.M., and pronounced
Frederick dead at 10:22 A.M. Id.
According to Boles, BOP records, which indicate Frederick
suffered from “cardiac arrest,” conflict with an autopsy performed
on June 22, 2017, that concluded his death was a homicide.2 The
autopsy report revealed that Frederick had sustained seven stab
wounds to his chest and back and died from a deep abdominal stab
wound that perforated his diaphragm and left lung.3 Id. at 7.
Based on this report, Boles contends that, on either June 20
or

June

21,

2017,

Frederick

was

attacked

a

second

time

and

consequently sustained the stab wound that caused his death. Id.
She further alleges that the second attacker was either the same
inmate who attacked Frederick on June 19, 2017, or an associate of

2

The BOP incident report, dated June 21, 2017, also lists
Frederick’s cause of death as homicide (Dkt. No. 11-1 at 20).
3

The autopsy also disclosed Frederick’s other injuries,
including contusions, lacerations, hemorrhages, and abrasions on
his face, scalp, arms, fingers, wrist, knee, and shin (Dkt. No. 1
at 7).
3

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MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT’S
MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]
AND DISMISSING CASE WITH PREJUDICE
that inmate. Id. at 8.
Finally, Boles avers that, although she requested documents
pertaining to Frederick’s death from the BOP on May 9, 2018, it did
not respond until October 24, 2019. Id. And that response did not
reference a second altercation, contain any video footage of the
morning of June 21, 2017, or provide a statement from his SHU
cellmate. Id. It also did not indicate that the BOP had conducted
an investigation into Frederick’s death. Id. The BOP letter did
state, however, that “there is no evidence of BOP staff negligence,
and if there was negligence, it was not on behalf of the BOP.”4 Id.
Based on this history, Boles brings a single negligence claim
on behalf of Frederick’s estate. She contends the BOP breached its
duty to ensure Frederick’s reasonable safety by (1) failing to
protect him from the June 19, 2017 altercation, (2) failing to
adequately staff the facility and failing to train and supervise
its employees, (3) failing to separate him his June 19, 2017
attacker,5 or that inmates’s associates, upon his return from Ruby,

4

The Government maintains that there is no evidence a second attack
occurred (Dkt. No. 11 at 4). Instead, it contends that Ruby failed
to properly diagnose Frederick’s injuries on June 19, 2017.
5

The Government acknowledged that Frederick was not housed
separately from the inmate who stabbed him on June 19, 2017, until
after he returned from Ruby (Dkt. No. 11 at 3). Boles
4

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MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT’S
MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]
AND DISMISSING CASE WITH PREJUDICE
(4) failing to supervise and monitor him in the SHU, and (5)
failing to transfer him out of the SHU. Id. at 9-10.
B.

Procedural History
i. Government’s Motion to Dismiss
On July 14 2020, the Government moved to dismiss Boles’s claim

for lack of jurisdiction pursuant to the discretionary function
exception to the FTCA (Dkt. No. 10). It contended that no statute,
regulation, or policy dictates how BOP employees must control
contraband weapons, intervene in inmate fights, investigate the
risk of inmate altercations, or decide where to confine inmates.
Id. at 5. Accordingly, the discretionary function exception to the
FTCA deprives the Court of jurisdiction over this case. Id. at 12.
The Government next asserted that its duty to protect its
inmates does not guarantee a risk-free environment. Id. at 9. And,
it is only liable for negligence when it knew, or reasonably should
have known, about a potential conflict between inmates, which it
did not in Frederick’s case. Id.
Boles responded that the Court should not dismiss her case
without first authorizing jurisdictional discovery to resolve

misinterpreted this statement to mean that these inmates were not
separated “once he returned to [USP] Hazelton” (Dkt. No. 15 at 7)
(adding her own language).
5

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MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT’S
MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]
AND DISMISSING CASE WITH PREJUDICE
factual disputes (Dkt. No. 15 at 7). She then contended that the
discretionary

function

exception

is

inapplicable

to

her

case

because the BOP knew or should have known about the conflict
between Frederick and the inmate who stabbed him on June 20 or 21,
2017, and because BOP staff violated nondiscretionary policies
(Dkt. No. 15 at 10).
After hearing argument on July 30, 2020, the Court held the
Government’s motion in abeyance in order to resolve two factual
disputes essential to its jurisdictional inquiry (Dkt. No. 18, 19).
First, the parties disputed whether, after Frederick returned to
USP Hazelton, BOP staff failed to separate him from the inmate, or
a known associate of the inmate, who attacked him on June 19, 2017
(Dkt. No. 15 at 4). Although adamant that Frederick was housed
separately from his attacker in the SHU, the Government provided no
information as to the identity of his SHU cellmate or whether that
cellmate was affiliated with Frederick’s previous attacker (Dkt.
Nos. 11 at 3). Had the BOP housed Frederick with the inmate who
stabbed him on June 19, 2017, or a known associate of that inmate,
such arguably was the result of carelessness. See Rich v. United
States, 811 F.3d 140, 147 (4th Cir. 2015) (explaining, in dicta,
that the discretionary function exception may not apply to conduct

6

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MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT’S
MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]
AND DISMISSING CASE WITH PREJUDICE
marked by carelessness).
Second,

the

parties

disputed

whether

Frederick

had

been

attacked on either June 20 or 21, 2017. According to Boles, the
inconsistent injuries documented in the medical records from Ruby
and the autopsy report supported her theory that Frederick was
attacked a second time while housed in the SHU. (Dkt. Nos. 15 at 3,
14 at 73). In her view, this evidence refuted the Government’s
arguments that no second attack occurred, and that Ruby failed to
properly diagnose Frederick’s injuries in the first instance (Dkt.
No. 11 at 4).
Because of these factual disputes, the Court ordered limited
jurisdictional discovery (Dkt. No. 19). The Government agreed to
produce the full investigation report regarding Frederick’s death,
including

all

photos

and

information

about

Frederick’s

SHU

cellmate, as well as any video evidence. The parties exchanged
initial discovery and the Government eventually disclosed documents
relevant to its investigation into Frederick’s death. Using this
discovery, it then supplemented its motion to dismiss on September
18, 2020 (Dkt. No. 29).
ii. Government’s Supplemental Motion to Dismiss
In its supplemental motion, the Government argued that, prior
7

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MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT’S
MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]
AND DISMISSING CASE WITH PREJUDICE
to placing any inmate in the SHU, BOP staff review relevant records
to determine the reason why an inmates is being housed in the SHU
and whether such placement poses any security threat. Id. at 2.
Regarding Frederick, it asserted that, on June 20, 2017, his
cellmate

had

been

assigned

to

the

SHU

based

on

disciplinary

infractions unrelated to the June 19, 2017 altercation involving
Frederick.6 Id. at 2. And prior to reassigning that inmate, BOP
staff

had

reviewed

his

relevant

records

and

determined

his

placement posed no security threat. There was no separatee note in
his records, no identified gang affiliations, and no indication
that he was associated with the inmate who had stabbed Frederick.
Id.
In her response to the Government’s contention that the
discretionary function exception barred her claim, Boles maintained
that the BOP failed to separate Frederick from his attacker or his
associates (Dkt. No. 30 at 3). She next alleged, for the first
time, that the BOP failed to properly monitor Frederick in the SHU
and failed to adequately train its staff to search for contraband
in the SHU. Id. Boles then requested additional discovery as to
whether any BOP policy relevant to these two allegations existed,
6

Specifically, the inmate had been moved to the SHU for engaging
in a sexual act and refusing to obey an order (Dkt. No. 29 at 2).
8

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MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT’S
MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]
AND DISMISSING CASE WITH PREJUDICE
and if so, to determine whether such policies mandated a course of
action. Id. at 4.
On October 2, 2020, the Court again heard argument on the
Government’s motions and extended the time for jurisdictional
discovery by an additional thirty (30) days (Dkt. Nos. 34, 36).
After the Government produced supplemental discovery, Boles did not
amend her complaint again (Dkt. No. 41, 42).
iii. Government’s Second Supplemental Motion to Dismiss
On

November

9,

2020,

the

Government

filed

its

Second

Supplement to Motion to Dismiss, to which Boles did not respond
(Dkt. No. 43). According to the Government, before inmates enter
the SHU at USP Hazelton, they are pat searched by BOP staff. Id. at
3. And once in the SHU, BOP staff search inmates with a hand-held
metal detector and a scanning machine. Id. Inmates then undergo
documented

visual

searches,

which

include

searching

all

body

surfaces and cavities. Id. After being searched, inmates are often
assigned a cellmate. Id. at 4. BOP staff observe all inmates in the
SHU “at least once in the first 30-minute period of an hour
followed by another round in the second 30-minute period of the
same hour” and record their rounds. Id. As time permits during
their shifts, BOP staff also conduct at least five (5) common area
9

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MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT’S
MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]
AND DISMISSING CASE WITH PREJUDICE
or inmate cell searches and document any contraband found. Id.
The Government has averred that BOP staff visually searched
Frederick and his cellmate upon their entry into the SHU and
discovered no contraband or weapons. Id. at 4. Also, for the two
days that Frederick was housed in the SHU, his cell was observed at
least twice per hour. Id. BOP staff, however, were not required to
search Frederick’s cell during this time, and it was not searched.
Id. However, BOP staff did routinely search common areas and inmate
cells during this time frame, but found no weapons. Id.
The Government also provided a timeline of events on June 21,
2017. At 7:40 A.M., BOP staff held a Unit Disciplinary Committee
meeting in Frederick’s cell. BOP staff recalled that Frederick
displayed no signs of distress and there was no apparent hostility
between

the

cellmates.

At

9:24

A.M.,

a

BOP

guard

observed

Frederick’s cell. At 9:25 A.M., the BOP guard returned to the cell
after hearing an inmate yell “[C]ome back to 150, I need a nurse,”
and observed Frederick sitting on the bottom bunk and his cellmate
lying on the top bunk. Frederick appeared lethargic and requested
medical attention, while grabbing his already bandaged abdomen. At
9:26 A.M., BOP staff placed Frederick and his cellmate in hand
restraints. BOP staff then administered the medical treatment
10

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MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT’S
MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]
AND DISMISSING CASE WITH PREJUDICE
described in Boles’s complaint. At 10:22 A.M., Frederick was
pronounced dead. At 10:24 A.M., an evidence recovery team was
activated, and from 11:35 A.M. to 1:05 P.M. the recovery team
searched and documented all evidence found in the cell. No weapons
were recovered from the cell or the person of Frederick’s cellmate.
Based on this discovery and the parties’ extensive briefings,
the issue of whether the discretionary function exception deprives
the Court of jurisdiction over Boles’s claim is ripe for review.
II. STANDARD OF REVIEW
A party may assert the defense of lack of subject matter
jurisdiction by motion. Fed. R. Civ. Pro. 12(b)(1). While the
burden of proving jurisdiction is on the plaintiff, if the Court
determines “at any time that it lacks subject matter jurisdiction,
the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3); Adams
v. Bain, 997 F.2d 1213, 1219 (4th Cir. 1982). “When a defendant
asserts that the complaint fails to allege sufficient facts to
support subject matter jurisdiction, the trial court must apply a
standard patterned on Rule 12(b)(6) and assume the truthfulness of
the facts alleged.” Kerns, 585 F.3d at 193. Alternatively, where,
as here, the defendant challenges the veracity of the facts
underpinning subject matter jurisdiction, the trial court may go
11

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MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT’S
MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]
AND DISMISSING CASE WITH PREJUDICE
beyond the complaint, conduct evidentiary proceedings, and resolve
the disputed jurisdictional facts.” Id. And when the jurisdictional
facts are inextricably intertwined with those central to the
merits, the court should resolve the relevant factual disputes only
after appropriate discovery, unless the jurisdictional allegations
are clearly immaterial or wholly unsubstantial and frivolous. Id.
(citing Bell v. Hood, 327 U.S. at 682, 682 (1946)).
III. DISCUSSION
It is well established that the United States, as sovereign,
is immune from suit unless it consents to be sued. The terms of its
consent define the Court’s jurisdiction to entertain suit against
the Government. Gould v. U.S. Dep't of Health & Human Servs., 905
F.2d 738, 741 (4th Cir. 1990) (citing United States v. Sherwood,
312 U.S. 584, 586 (1941)). The FTCA waives the sovereign immunity
of the United States and allows suits against it for personal
injuries caused by government employees acting within the scope of
their

employment.

See

28

U.S.C.

§

1346(b),

§

2671

et

seq.

Therefore, in the present case, only if the United States has
waived sovereign immunity under the FTCA does this Court have
jurisdiction to address Boles’s claim.
A.

Administrative Exhaustion
Before filing suit under the FTCA, Boles was required to
12

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MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]
AND DISMISSING CASE WITH PREJUDICE
exhaust her administrative remedies. 28 U.S.C. § 2675(a). Under the
FTCA, a tort claim against the United States must be presented to
the

appropriate

agency

within

two

years

of

its

accrual

by

submitting a Form 95 and a sum certain claim for money damages for
the injury or death alleged to have occurred.7 28 C.F.R. § 14.2. If
the agency denies the claim, the claimant may file suit within six
(6) months. 28 U.S.C. § 2401(b).
Here, Boles has summarily contended that she exhausted her
administrative remedies (Dkt. No. 1 at 1). The BOP denied her claim
on September 10, 2019, giving her until March 10, 2020 to assert
her FTCA claim in court. Id. at 1-2. Boles filed her complaint
within six months of the alleged denial date, but did not include
the date on which she had presented her claim to the BOP or a copy
of her Form 95.8 Boles’s counsel, however, has represented that
7

An FTCA claim accrues when a plaintiff is aware of the existence
of the injury and its cause such that she is “sufficiently armed”
with “critical facts” to investigate the claim. Gould, 905 F.2d at
743; see e.g., Amburgey v. United States, 733 F.3d 633, 638 (6th
Cir. 2013)(holding that the plaintiff’s wrongful death FTCA claim
accrued after she received the autopsy report, not on the date of
her husband’s death). Here, the date of accrual is unclear because
it is unknown when Boles received notice of Frederick’s death or
learned that the autopsy report ruled his death a homicide.
8

Additionally, under West Virginia law, a wrongful death action
shall be brought by the appointed personal representative of the
deceased. See W. Va. Code § 55-7-6(a). Boles alleges that she has
authority to bring this claim on Frederick’s behalf in this
capacity, but has offered no proof of her appointment. The
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MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT’S
MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]
AND DISMISSING CASE WITH PREJUDICE
Boles presented her executed Form 95 requesting two million dollars
in damages for Frederick’s death to the BOP within two years of the
accrual of her claim. As the Government has not challenged Boles’s
satisfaction of this administrative requirement, for the purpose of
resolving these motions the Court assumes that Boles’s claim has
been finally denied by the BOP and that she has exhausted her
administrative remedies.
B.

Discretionary Function Exception
“The FTCA creates a limited waiver of the United States’

sovereign immunity by authorizing damages actions for injuries
caused by the tortious conduct of federal employees acting within
the scope of their employment, when a private person would be
liable for such conduct under state law.” Suter v. United States,
441 F.3d 306, 310 (2006)(citing 28 U.S.C. § 1346(b)(1)).9 This
waiver is subject to various exceptions, including one for the
performance of discretionary functions. Sanders v. United States,
Government did not contest her authority and the Court assumes that
Boles has standing to bring this case for the purpose of resolving
the pending motions.
9

West Virginia Code § 55-7-5 authorizes a decedent’s personal
representative to recover damages from a person or entity who
negligently caused the decedent’s death. Accordingly, Boles may
assert this wrongful death FTCA claim because a private person
would be liable under West Virginia law for negligence causing
Frederick’s death.
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AND DISMISSING CASE WITH PREJUDICE
937 F.3d 316, 327 (4th Cir. 2019). This “discretionary function
exception” immunizes the Government from “[a]ny claim . . . 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).
“FTCA

plaintiffs

have

the

burden

of

showing

that

the

discretionary function exception does not foreclose their claim.”
Seaside Farm, Inc. v. United States, 842 F.3d 853, 857 (4th Cir.
2016). But “unduly generous interpretations” of the FTCA exceptions
“run the risk of defeating the central purpose of the statute,
which waives the Government’s immunity from suit in sweeping
language.” Sanders, 937 F.3d at 327 (citing Dolan v. U.S. Postal
Serv., 546 U.S. 481, 491–92 (2006)).
Courts

conduct

discretionary

a

function

two-step
exception

analysis
applies.

to

determine

First,

if

courts

the
must

determine if the conduct at issue “involves an element of judgment
or choice.” Wood v. United States, 845 F.3d 123, 128 (2017)(citing
Berkovitz v. United States, 486 U.S. 531, 536 (1988). When a
statute, regulation, or policy prescribes the employee’s conduct,
such conduct cannot be discretionary and is therefore unprotected
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AND DISMISSING CASE WITH PREJUDICE
by the discretionary function exception. Wood, 845 F.3d at 128.
Second, courts must determine whether the challenged conduct is
based on considerations of public policy. Id. (quoting Berkovitz,
486 U.S. at 537). This step “prevent[]s judicial second-guessing of
legislative

and

administrative

decisions

grounded

in

social,

economic, and political policy....” Sanders, 937 F.3d at 328.
When established governmental policy, as expressed or implied
by statute, regulation, or agency guidelines, allows a Government
agent to exercise discretion, it must be presumed that the agent's
acts are grounded in policy when exercising that discretion.
Gaubert, 499 U.S. at 324. “In short, the discretionary function
exception ... shield[s] decisions of a government entity made
within the scope of any regulatory policy expressed in statute,
regulation, or policy guidance, even when made negligently.” Wood,
845 F.3d at 128. Therefore, to survive a motion to dismiss, a
complaint

must

allege

facts

supporting

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. Id. at 24-25.
C.

Analysis
The discretionary function exception immunizes the Government

from Boles’s claim if the challenged BOP conduct “involve[d] an
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MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]
AND DISMISSING CASE WITH PREJUDICE
element of judgment or choice” and was based on considerations of
public policy. Wood, 845 F.3d at 128 (2017). Pursuant to this
construct, the Court turns to address each of Boles’s allegations
of negligent conduct.
i.

Element of Judgment or Choice
1.

Failure to Protect

Boles first alleges that the BOP failed to protect Frederick
before the incidents, on June 19, 2017, and June 20 or 21, 2017
(Dkt. Nos. 1 at 9, 30 at 2-3). The BOP has a duty to provide for
the “protection,” “safekeeping,” and “care” of “all persons charged
with or convicted of offenses against the United States.” 18 U.S.C.
§ 4042(a)(2), (3). But under the statute’s broad directives, the
BOP retains discretion to implement that mandate. Rich, 811 F.3d at
145.
Courts in this District have uniformly held that decisions
regarding separating inmates from one another, preventing inmate
attacks, and controlling contraband weapons, the very decisions at
issue here, are discretionary, policy-based functions. Crawford v.
United States, 2019 WL 2366017, at *1, 7 (N.D.W. Va. June 4, 2019);
Evans v. United States, 2016 WL 4581339, at *1-2 (N.D.W. Va. Sept.
2, 2016). And, “a federal prisoner’s claims under the FTCA for
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1:20CV41

MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT’S
MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]
AND DISMISSING CASE WITH PREJUDICE
injuries caused by a fellow inmate are uniformly held to be barred
by the discretionary function exception.” Little v. United States,
2014 WL 4102377, at *1, 5-7 (N.D.W. Va. Aug. 18, 2014).
It is beyond dispute that the discretionary function exception
applies to Boles’s failure to protect claim. The BOP clearly
retained discretion to discharge its duty to protect Frederick from
other inmates and to control contraband weapons before and after
the June 19, 2017 altercation.
Nevertheless, if Boles can establish that BOP staff failed to
follow a specific mandatory directive intended to protect an inmate
like Frederick, her claim would not be barred by the discretionary
function exception. A directive is mandatory if "the employee has
no rightful option but to adhere to the directive." Berkovitz, 486
U.S. at 536. Boles argued, for the first time in her response to
the Government's supplemental motion to dismiss, that BOP staff had
failed

to

protect

Frederick

because

they

did

not

search

his

cellmate for weapons when that inmate entered the SHU (Dkt. No. 30
at 4).
Although Boles conducted discovery into the existence of BOP
policies related to the search of SHU inmates and cells, and the
Government identified three such practices for maintaining SHU
security, she has neither amended her complaint nor responded to
18

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BOLES V. USA

1:20CV41

MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT’S
MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]
AND DISMISSING CASE WITH PREJUDICE
the motion. Nor has she alleged that these practices are mandatory
or even formally established through duty post orders, Program
Statements, Institutional Supplements, or the Correctional Service
Manual, all of which describe various security measures to be
implemented by BOP officials.
Nor is there any indication in the Government's pleading that
these practices are mandatory or formally implemented. The SHU
security practices were identified by Joshua Brawley, the executive
assistant at USP Hazelton, who stated that, prior to entering the
SHU, inmates undergo pat, electronic, and visual searches (Dkt. No.
43 at 3-4). He does not state, however, that this directive is a
formal policy at USP Hazelton or that any other procedure exists
that BOP staff must follow to properly conduct these searches.
According to Brawley, as time permits, BOP staff conduct at least
five (5) searches of common areas and cells per shift. Id. at 4.
This practice allows BOP staff to rely on their observations and
experience to determine which areas should be searched and how
frequently searches are needed.
The record in this case establishes that the BOP adopted these
discretionary practices to fulfill its duty to protect inmates.
Without a mandatory directive prescribing a course of conduct,
decisions involving the control of contraband and protection of
19

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BOLES V. USA

1:20CV41

MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT’S
MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]
AND DISMISSING CASE WITH PREJUDICE
inmates from one another constitute discretionary, policy-based
functions. Crawford, 2019 WL 2366017, at *1. Therefore, as Boles
has not identified any policy which mandates BOP conduct, she
cannot avoid the discretionary function exception. Seaside Farm,
842 F.3d at 857.
Additionally,

the

Government

has

produced

evidence

establishing that BOP staff were not careless in carrying out these
protocols in this case. BOP staff reviewed the inmate records for
both Frederick and his SHU cellmate prior to their assignments to
the SHU and discovered no reason to separate them (Dkt. No. 29 at
2). Both inmates were visually searched for weapons upon entering
the SHU (Dkt. No. 43 at 2-4). Moreover, although BOP staff searched
common areas and inmate cells throughout their shifts, they found
no weapons or any other reason to search Frederick’s shared cell.
Id.
Based on this record, Boles has failed to allege any mandatory
policy

depriving

BOP

staff

of

their

discretion

to

protect

Frederick.
2.

Failure to Staff, Supervise, and Train

Boles next contends that the BOP failed to adequately staff
the facility and failed to train and supervise its employees (Dkt.
20

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BOLES V. USA

1:20CV41

MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT’S
MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]
AND DISMISSING CASE WITH PREJUDICE
No. 1 at 9-10). She later expanded on this theory by asserting the
BOP failed to train its staff to discover weapons in the SHU (Dkt.
No. 30 at 4).
Decisions

of

hiring,

supervising,

and

training

employees

essentially involve judgment and policy considerations, and are
“precisely the types of decisions that are protected under the
discretionary function exception.” LeRose v. United States, 285 F.
App’x 93, 96-97 (4th Cir. 2008). For example, BOP officials must
evaluate applicant qualifications, consider staffing requirements,
assess training needs as well as budgetary considerations, and, on
a daily basis, make numerous decisions regarding supervision of
employees. Id.; Dorsey v. Relf, 2013 WL 781604, at *5 (N.D. Tx.
Mar. 4, 2013). These multi-faceted choices require the balancing of
competing objectives, and are of the nature and quality that
Congress intended to shield from tort liability. LeRose, 285
F.App’x at 96. Therefore, BOP decisions regarding staffing at USP
Hazelton, as well as the supervision and training of employees,
involve an element of judgment or choice.
iii. Failure to Separate
Boles has alleged that the BOP failed to separate Frederick
from the person who stabbed him, or his known associate, before or
21

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BOLES V. USA

1:20CV41

MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT’S
MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]
AND DISMISSING CASE WITH PREJUDICE
after the June 19, 2017 incident (Dkt. No. 1 at 9-10). 28 C.F.R. §
524.72 permits, but does not require, the BOP to separate certain
inmates based on past behavior. “[P]rison officials must consider
several factors and exercise independent judgment in determining
whether inmates may require separation.” Rich, 811 F.3d at 145
(barring an FTCA claim based on allegations that the BOP should
have housed an inmate separately from gang members affiliated with
the inmate who previously had attacked him). Accordingly, BOP staff
retain discretion to determine where to house inmates and whether
to separate certain inmates from one another, and such separation
decisions are outside the scope of the FTCA. Id.
Here, BOP staff retained discretion to determine whether
Frederick should have been separated from any other inmate before
and after the June 19, 2017 altercation. Had the BOP’s housing
decisions been careless, or had Frederick’s SHU cellmate been the
same inmate with whom he had had an altercation on June 19, 2017,
or one of that inmate’s known associates, those decisions would not
be protected by the discretionary function exception. Rich, 811
F.3d at 147. But this is not the case here, where there is
undisputed

evidence

that,

upon

his

return

from

Ruby

to

USP

Hazelton, Frederick was housed separately from the inmate who
stabbed him on June 19, 2017. The Government has also established
22

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BOLES V. USA

1:20CV41

MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT’S
MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]
AND DISMISSING CASE WITH PREJUDICE
that Frederick’s SHU cellmate had no known association with the
inmate involved in the June 19, 2017 altercation, and that there
was no security risk in placing him with Frederick. Thus, the BOP’s
decisions as to where to house Frederick, whether to place him in
a shared cell, and who his cellmate should be either before and
after the June 19, 2017, incident involved judgment or choice.
iv.

Failure to Supervise and Monitor

Boles has alleged that BOP staff failed to adequately monitor
Frederick for signs of physical distress following his return from
Ruby (Dkt. No. 1 at 10). She later added that BOP staff had failed
to supervise Frederick adequately while in his shared cell in the
SHU, thereby allowing a second stabbing to occur on June 20 or 21,
2017 (Dkt. No. 30 at 2-3). These arguments fail, however, because
no BOP policy mandates a course of action for inmate monitoring in
the SHU.
Pursuant to 18 U.S.C. § 4042 (a)(2), the BOP had a duty to
provide for Frederick’s safekeeping. However, the BOP retained
discretion in determining how to care for and supervise Frederick
while he was in the SHU. Rich, 811 F.3d at 145.
Boles contends that 28 C.F.R. § 541.31 is a mandatory policy
that deprives BOP staff of their discretion in monitoring inmates
housed in the SHU (Dkt. No. 15 at 12). However, § 541.31(m) merely
23

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BOLES V. USA

1:20CV41

MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT’S
MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]
AND DISMISSING CASE WITH PREJUDICE
provides that inmates in the SHU “will be monitored by staff,” thus
clearly vesting BOP staff with the discretion to determine how to
monitor Frederick while in the SHU.
Moreover, the implementing instruction for § 541.31(m) states:
Program staff, including unit staff, arrange to visit
inmates in the SHU within a reasonable time after
receiving the inmate’s request.
In addition to direct supervision by the unit officer,
qualified health personnel and one or more responsible
officers
the
Warden
designates
(ordinarily
the
Institution Duty Officer) visit each segregated inmate
daily, including weekends and holidays. A Lieutenant must
visit the SHU during each shift to ensure all procedures
are followed.
Federal Bureau of Prisons, Program Statement 5270.11, at 14 (Nov.
23, 2016).
While this program statement obligates BOP staff to visit
inmates upon request, it merely requires that such visits occur
“within a reasonable time,” without defining this term. It vests
discretion in BOP staff to prioritize their response among their
other

duties.

The

program

statement

also

calls

for

“direct

supervision,” but does not explain how BOP staff may meet this
requirement. Because Program Statement 5270.11 includes suggestive,
permissive,

and

discretionary

language,

as

well

as

specific

directives, it is discretionary. Gonzalez v. United States, 814
F.3d 1022, 1029 (9th Cir. 2016) (considering the language of a
24

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BOLES V. USA

1:20CV41

MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT’S
MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]
AND DISMISSING CASE WITH PREJUDICE
guideline “as a whole” to determine whether it mandated certain
conduct); Herden v. United States, 726 F.3d 1042, 1047 (8th Cir.
2013) (finding the discretionary function exception applicable to
a code with predominantly permissive language mixed with mandatory
language); see e.g., Warren v. United States, 244 F. Supp. 3d 1173,
1243

(D.N.M.

2017)

(finding

that

the

discretionary

function

exception applied to a policy requiring BOP staff to regularly
inspect all areas accessible to inmates and maintain visual contact
with holding cells at all times).
Notably, Boles has not alleged that BOP staff failed to
respond to a request by Frederick “within a reasonable time,” or
that a qualified health personnel or responsible officer failed to
visit him as required. Instead, she contends that BOP staff failed
to monitor Frederick’s cell in the SHU and that adequate monitoring
would have allowed BOP staff to notice signs of distress or would
have prevented a second attack. Program Statement 5270.11, however,
is discretionary and does not mandate a course of conduct for
inmate monitoring in the SHU.
Finally, the Government has established that SHU staff at USP
Hazelton observe each cell at least once every thirty minutes (Dkt.
No.

43

at

4).

This

practice

is

not

mandated

in

a

statute,

regulation, or policy. While this custom prescribes a minimum
25

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BOLES V. USA

1:20CV41

MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT’S
MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]
AND DISMISSING CASE WITH PREJUDICE
standard of conduct, it does not wholly deprive SHU staff of
discretion. It does not state what constitutes proper observation
or mandate how staff must conduct their rounds. Further, while
Frederick was housed in the SHU BOP staff observed his cell twice
per hour, held a meeting in his cell at 7:40 A.M. on June 21, 2017,
and last observed his cell 9:24 A.M., less than a minute before he
called for help. Id. at 4. Accordingly, BOP staff were not careless
in

monitoring

Frederick

in

the

SHU,

nor

would

any

further

observation have allowed staff to better respond to Frederick or
protect him from an attack.
v.

Failure to Transfer

Finally, Boles has alleged that the BOP failed to transfer
Frederick out of the SHU in a timely manner10 (Dkt. No. 30 at 3).
She has contended that BOP staff violated non-discretionary Program
Statement 5270.11, which authorizes the BOP to place inmates in the
SHU for disciplinary and administrative segregation purposes.11
10

It is worth noting that Boles raised this theory for the first
time in response to the Government’s motion to dismiss (Dkt. No.
30). Accordingly, the Court need not consider this new claim. To
the extent that it may fairly be viewed as an extension of her
failure to protect theory, however, the Court will consider her
argument.
11

This Program Statement pertains to 28 C.F.R. § 541.27(d), which
describes the circumstances in which an inmate may be placed in
administrative detention as a protection case.
26

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BOLES V. USA

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MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT’S
MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]
AND DISMISSING CASE WITH PREJUDICE
Specifically, this program statement provides:
When an inmate is placed in Administrative Detention for
an investigative period and the threat is verified,
correctional officers should seek alternative housing, by
transferring the threatened inmate either to the general
population of another institution or to a special-purpose
housing unit for inmates who face similar threats, with
conditions comparable to those of the general population.
When the inmate poses such security risk that even a
special-purpose housing unit is insufficient to ensure
the inmate’s safety and the safety of staff, other
inmates, and the public, the inmate may be housed in more
restrictive conditions. The inmate’s placement should be
regularly reviewed to monitor any medical or mental
health deterioration and to determine whether the
security risks have subsided.
Federal Bureau of Prisons, Program Statement 5270.11, at 8 (Nov.
23, 2016).
Assuming that Frederick was in the SHU for an investigative
period and that the threat against him was “verified” one day after
the June 19, 2017 incident, Program Statement 5270.11 indicates
that correctional officers “should” seek alternative housing. Id.
It also provides that, in certain cases, BOP staff “may” place
inmates in more restrictive housing and that such placement “should
be regularly reviewed.” Id.
The

language

used

within

this

program

statement

clearly

involves elements of judgment or choice. It neither requires
correctional officers to seek alternative housing nor mandates the
27

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BOLES V. USA

1:20CV41

MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT’S
MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]
AND DISMISSING CASE WITH PREJUDICE
time requirement for their review of an inmate’s housing. Because
it “repeatedly limits its own recommendations,” it cannot be
characterized as mandatory. Hart v. United States, 630 F.3d 1085,
1090 (8th Cir. 2011). Accordingly, Program Statement 5270.11 does
not mandate any conduct that the BOP violated by failing to
transfer Frederick out of the SHU less than two days after he
returned from Ruby. BOP staff retained discretion to determine if
and when such transfer was warranted.
vi.

Policy Considerations

Boles has made no argument regarding the policy element of the
discretionary function exception. However, because each instance of
alleged negligent conduct involves an element of judgment or
choice, it may be presumed that the BOP’s decisions relative to
Frederick were grounded in policy. Gaubert, 499 U.S. at 324.
Accordingly, each instance of negligent conduct alleged by
Boles involved an element of judgment or choice and implicated
public policy considerations. As Boles has not met her burden of
“showing

that

the

discretionary

function

exception

does

not

foreclose [her] claim,” Seaside Farm, 842 F.3d at 857, the Court
lacks jurisdiction to address the merits of her wrongful death
suit. See Holbrook v. United States, 673 F.3d 341, 345 (4th Cir.
2012).
28

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BOLES V. USA

1:20CV41

MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT’S
MOTIONS TO DISMISS [DKT. NOS. 10, 29, 43]
AND DISMISSING CASE WITH PREJUDICE
IV. CONCLUSION
For the reasons discussed, the Court:
1.

GRANTS the Government’s motion to dismiss (Dkt. No. 10);

2.

GRANTS the Government’s supplemental motion to dismiss
(Dkt. No. 29);

3.

GRANTS the Government’s second supplemental motion to
dismiss (Dkt. No. 43); and

4.

DISMISSES the Plaintiff’s claim for wrongful death WITH
PREJUDICE and DIRECTS that it be stricken from the
Court’s active docket.

The Clerk SHALL enter a separate judgment order and transmit
copies of both orders to counsel of record.
DATED: February 9, 2021.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

29