cell on December 13 and 14. There is no information as to whether
Stringfellow was in an individual cell on those nights. On
December 15-16 the number of prisoners in the Admissions &
Orientation Unit substantially exceeded the number of individual
cells and those inmates for whom there were no individual cells,
approximately 40, including Fleishour and Stringfellow, were
assigned to the dormitory room for the night.
9. At 2:30 A.M. on December 16, 1960, Stringfellow assaulted
the sleeping Fleishour by hitting him on the head with a tank
type fire extinguisher which was situated in the dormitory.
10. The Bureau of Prisons employee in charge of the Admissions
& Orientation Unit from 12:15 A.M. to 8:15 A.M., December 16, was
Senior Correctional Officer Claude O. Connell. Officer Connell
had responsibility for the supervision of the cell blocks on the
upper three floors and the dormitory.
11. At the time of the assault Officer Connell was at his
station in the Admissions & Orientation Unit on the floor above
the dormitory where he was sorting mail. The officer's station
consisted of a desk in the corridor of the stairway which ran
from the dormitory room to the three floors of cell blocks. He
heard a noise and checked his immediate surroundings on A tier.
Upon hearing the noise again he immediately went to the floor
below to investigate. When he entered the large dormitory he
found an inmate, one Aldridge, holding Stringfellow, who was
trying desperately to take off a pair of prison-issue socks which
he was wearing on his hands. Officer Connell inquired as to what
had occurred and then heard a moan to his left. There, he found
the plaintiff lying on the floor, his head, back, and shoulders
covered with blood.
12. Officer Connell immediately called his superior, Lieutenant
Victor N. Downing, who was in the Control Center, a building next
to the Admissions and Orientation Unit. Connell then returned to
the inmates. He asked Stringfellow what he had used to strike
Fleishour, but Stringfellow did not answer. Inmate Aldridge
informed the officer that Stringfellow had hit Fleishour with a
fire extinguisher, which Aldridge then pointed out and which was
bloody. As Fleishour was removed to the hospital, Stringfellow
was taken out of the dormitory. Upon being asked if he had used
the fire extinguisher to hit Fleishour, Stringfellow admitted his
Conclusions of Law
1. This Court has jurisdiction over the instant action, the
exceptions to Federal Tort Claims Act suits found in 28 U.S.C. § 2680(a)
and 2680(h) not being dispositive of all allegations set
out in the complaint.
2. The officials charged with maintenance of the United States
Penitentiary at McNeil Island, Washington, carried out their
duties with reasonable care under all the circumstances and
therefore without negligence toward the plaintiff.
3. The United States is therefore not liable to him under the
Federal Tort Claims Act for any damages sustained as a result of
the occurrence which is the basis of this case.
This action for damages is brought under the Federal Tort
Claims Act, 28 U.S.C. § 1346(b) and 2671 et seq. The defendant
challenges the jurisdiction of the court on three grounds:
1) The suit is barred by 28 U.S.C. § 2680(h) which bars "[a]ny
claim arising out of assault [or] battery."
2) The suit is barred by that part of 28 U.S.C. § 2680(a) which
bars "[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."
3) The suit is barred by that part of 28 U.S.C. § 2680(a) which
bars any claim "based upon the exercise or performance or the
failure to exercise or perform a discretionary function or duty."
1. THE SECTION 2680(h) DEFENSE
The government urges that because the acts here complained of
arose out of
an assault and battery, the instant case falls under the
exception to the Federal Torts Claims Act stated in 28 U.S.C. § 2680(h).
In support of this position, it cites a host of cases.
In each one, however, the assault and/or battery inflicted upon
the complaining party came at the hand of a government employee
or his agent: United States v. Hambleton, 185 F.2d 564, 23
A.L.R.2d 568 (9 Cir. 1950) (mental suffering resulting from
interrogation by sergeant from Army Criminal Investigation
Division); Lewis v. United States, 194 F.2d 689 (3 Cir. 1951)
(injury inflicted by army sentry on duty when plaintiff failed to
obey orders to halt at gate); Stepp v. United States,
207 F.2d 909 (4 Cir. 1953), cert. denied 347 U.S. 933, 74 S.Ct. 627, 98
L.Ed. 1084 (1954) (civilian seaman shot by army guard on duty at
dock upon refusal of seaman to stop for search); Jones v. United
States, 249 F.2d 864 (7 Cir. 1957) (injury caused by heavy labor
and inadequate medical attention while federal prisoner)*fn2;
Alaniz v. United States, 257 F.2d 108 (10 Cir. 1958) (shooting by
F.B.I.-appointed agent [a deputy sheriff] while agent was seeking
to apprehend thief); Hall v. United States, 274 F.2d 69 (10 Cir.
1959) (negligent performance of tests by Department of
Agriculture inspectors which resulted in plaintiff selling cattle
at a price below actual value); Klein v. United States,
268 F.2d 63 (2 Cir. 1959) (exposure to elements and subjection to mental
indignity by Customs Officers and Agents of the F.B.I.); United
States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614
(1961) (misrepresentation of property value by Federal Housing
Administration appraiser); United States v. Faneca, 332 F.2d 872
(5 Cir. 1964), cert. denied 380 U.S. 971, 85 S.Ct. 1327, 14
L.Ed.2d 268 (1965) (plaintiff fired at by United States marshals
during efforts to carry out court order); Richardson v. United
States, 226 F. Supp. 49 (E.D.Va. 1964) (Marine officer injured by
enlisted man as former assisted latter in leaving officers'
The best analysis of a situation analogous to the one at bar,
where the battery is not administered by a government employee
but by a third party, is Mr. Justice, then Judge, Harlan's
opinion in Panella v. United States, 216 F.2d 622 (2 Cir. 1954):
"It is true that Section 2680(h), retaining
immunity against claims arising out of assault and
battery, can literally be read to apply to assaults
committed by persons other than government employees.
But we think such a construction out of keeping with
the rest of the act. For in the present case the only
basis of liability against the government is the
negligence of its employees, not their deliberate
torts, since the assailant was not a Government
employee. Unless it can be shown that government
employees were negligent in maintaining the internal
security of the Hospital, no liability could be
imposed under the Tort Claims Act for the alleged
assault, even if § 2680(h) did not exist, and the
Government had thus waived immunity for claims
arising out of assault. It is therefore important to
distinguish cases in which it was sought to hold the
Government liable on a negligence theory for assaults
committed by government employees." At 624. (Emphasis
Although mentioning Panella only in passing
was struck by another prisoner in the federal institution at
Danbury, Connecticut. The guard on the scene locked the dormitory
into which Muniz was chased by his assailant and other inmates.
While inside the dormitory Muniz was beaten by his tormentors.
His right to bring an action against the United States was upheld
by the Supreme Court: "None of the exceptions [to Section 2680]
precludes suit against the Government by federal prisoners for
injuries sustained in prison. So far as it appears from the face
of the Act, Congress has clearly consented to suits such as those
involved in the case at bar. Whether a claim could be made out
would depend upon whether a private individual under like
circumstances would be liable under state law, but prisoners are
at least not prohibited from suing." 374 U.S. at 153, 83 S.Ct. at
From the above, it follows that Fleishour is not barred from
this court by the exception to the Federal Tort Claims Act found
in Section 2680(h).
2. THE SECTION 2680(a) DEFENSES
The two challenges to the Court's jurisdiction under Section
2680(a), referring to acts and omissions in the execution of a
statute or regulation and to discretionary functions are closely
related and may be discussed together. In essence, the United
States claims that a series of decisions made by the Bureau of
Prisons and acted upon by employees of that agency may not be
challenged in the courts, e.g., the decision to transfer
Stringfellow from Lompoc to McNeil Island rather than to a
hospital institution such as the medical center at Springfield,
Missouri, the decision to house newly-arrived prisoners in a
dormitory type arrangement without reference to their individual
records and other decisions which may be categorized as being at
the "planning level" or as "policy making". The government's
position, as it refers to decisions made in the discretion of
policy makers, is consistent with the landmark case in this area,
Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed.
1427 (1953), which holds that decisions made at a planning rather
than operational level may not be the subject of court suits.
The complaint in the instant case, however, addresses itself to
more than high level policy decisions. At page 5, it is stated
that "the said unit was unguarded and without any supervision of
any kind, and in any event, while there was inadequate
supervision and custody, and while fire extinguishers and other
lethal and dangerous articles were left unguarded in the said
room, the defendant, Troy Lee Stringfellow, assaulted the
plaintiff, without reasonable or any provocation, while the
plaintiff was asleep at night, with a fire extinguisher * * *."
It is further alleged, at page 7, that the government "did not
provide adequate custody or protection to the said unit, and the
officer ostensibly in charge thereof was not in the unit at the
time of the acts complained of, but in another unit." These
allegations put the instant action in the posture of the Muniz
case, supra, in which the plaintiff alleged "that the prison
officials were negligent in failing to provide enough guards to
prevent the assaults leading to his injuries and in letting
prisoners, some of whom were mentally abnormal, intermingle
without adequate supervision." 374 U.S. at 152, 83 S.Ct. at 1852.
From the Supreme Court's holding in Muniz that a prisoner may
sue under the Federal Torts Claims Act to recover damages
allegedly resulting from the negligence of a prison official, it
appears that the actions of such government employees are at what
the Court in Dalehite, supra, conceived to be the "operational
level" and thus actionable. Hence, the Section 2680(a) exemption
is not available to the defendant under the facts of this case
and this court has jurisdiction over the matter.
3. THE DEFENSE OF NO NEGLIGENCE
Having determined that this Court has jurisdiction over the
instant case, we now turn to the merits. The liability of the
United States is dependent
upon "whether a private individual under like circumstances
should be liable under state law." Muniz, supra, at 153, 83 S.Ct.
at 1853. The State of Washington does not hold a person liable
without proof of negligence. United States v. Coffey, 233 F.2d 41
(9 Cir. 1956). The significant question then becomes, "did the
agents of the United States act or fail to act as reasonable
persons would under all the circumstances?"
Plaintiff asserts that they were negligent in "the placing of a
dangerous mental defective in an open, unguarded prison dormitory
with a large number of inmates where dangerous objects are left
lying about * * *."
The evidence before the court indicates that while Stringfellow
undoubtedly had aggressive tendencies, his record at Lompoc was
not substantially different from that of the other transferees
including plaintiff. All of them had been troublemakers and
disciplinary problems at Lompoc which is why they were being
transferred to McNeil.
Was it negligent to place approximately forty prisoners,
including many with assaultive records, in a single dormitory
room with no guard in the room and with various objects present,
including fire extinguishers, which could be used as weapons? To
a layman, the first and quick answer seems obviously "yes". It is
only after all relevant factors are considered that the answer
becomes less obvious.
A number of penologists of long and extensive experience in
both the Federal and state prison systems testified that when
prisoners are transferred from an institution where they have not
made a satisfactory adjustment and have run into conflict with
the guards and other authorities, it is accepted practice to give
them an opportunity to make a fresh start at the transferee
institution and not treat them as troublemakers unless they
warrant it by their conduct at that institution. Accordingly,
they expressed the opinion that the dormitory sleeping
arrangements here involved were reasonable.
These same experts pointed out that all aspects of prison life
which seek to encourage rehabilitation and responsible conduct by
prisoners inevitably involve calculated risks. Most of those
incarcerated have greater or lesser assaultive tendencies and the
only certain way to insure against prison episodes is by complete
isolation which is not only physically very difficult, if not
impossible, but also least likely to induce positive attitudes in
and the rehabilitation of persons so treated.
Accordingly, it is, we are told, standard practice in modern
penal institutions to take calculated risks in various aspects of
prison life, housing, work, recreation, religious worship and
others, so that prisoners may learn to get along with other
persons as part of the rehabilitation process. The result is,
that from time to time, there occurs an episode such as that here
involved in which the gamble is lost and another prisoner is
It was the opinion of all the experts who testified that the
officials at McNeil had acted reasonably and in a manner
consistent with accepted prison practices at the time here
involved. In the face of such testimony, the court cannot
conclude that plaintiff has established by a preponderance of the
evidence that these officials were negligent and judgment must
therefore be entered for the defendant.
The court reaches this conclusion with some reluctance since it
seems unfortunate that plaintiff who here may be euphemistically
characterized as an "innocent bystander" should not be
compensated for his injuries. Risk of serious physical damages or
even death should not be an inherent and uncompensated element of
every prison sentence. If the experts are correct that sound
penology requires the taking of such calculated risks, some
provision should be made to compensate a prisoner who, through no
fault of his own and in the absence of negligence by prison
officials, nevertheless is seriously injured.
This is not to suggest that the Government should become the
insurer of the
physical well-being of every prisoner. But where, as here, a
prisoner is attacked in his sleep with no provocation or other
action on his part and the attacker has the opportunity to strike
because it is desirable as a matter of broad penal policy to give
it to him, the innocent and fortuitous victim, if not
compensated, pays a far greater penalty than the sentence imposed
upon him and that paid by others given the same term but luckily
not injured during incarceration.
Our society has recognized that the taking of calculated risks
is sometimes desirable or even necessary. With the use of all
conceivable safety devices, our technological and industrial
civilization still requires known risk taking. By and large, we
have sought to compensate persons injured as a result of taking
such risks even though the law generally precludes compensation
for damages resulting from risks taken by the person injured. The
Federal Employers' Liability Act, other federal laws as well as
most state Workmen's Compensation Laws, exclude assumption of
risk as a defense to a claim. The reasons are obvious and sound.
We ask people to take risks in the interest of the entire
community. If, as a result, they are injured, they should be
Similarly, we ask prisoners to take risks in the process of
attempting to rehabilitate as many as possible, a result greatly
in the community interest. If, as a consequence, one is injured
through no fault of his own it seems unfortunate and unfair that
he be made to accept his injuries as additional punishment. To
date at least the law gives a prisoner so injured no right to
compensation. In the opinion of one judge, at least, it should.
As presented to the court, however, the facts are not such as to
hold that, under the law of the State of Washington, the United
States was negligent so as to be liable to the plaintiff in the
As previously indicated, the issue of liability on Count I is
resolved in favor of the defendant. The other counts having been
disposed of at an earlier date, the case is hereby dismissed. An
appropriate order will be entered.