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Bailor v. Salvation Army

April 3, 1995

ADELA T. BAILOR AND DARRYL BAILOR, PLAINTIFFS-APPELLANTS,

v.

SALVATION ARMY AND UNITED STATES OF AMERICA, DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 93 C 121--Roger B. Cosbey, Magistrate Judge.

Before BAUER, REAVLEY *fn* and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

ARGUED DECEMBER 5, 1994

DECIDED APRIL 3, 1995

Adela Bailor was assaulted brutally and raped by William Holly on May 9, 1991, while Ms. Bailor was working as an administrative assistant at the Fort Wayne office of Prison Fellowship Ministries. At the time of the rape, Holly was serving the final six months of his prison sentence at a Salvation Army "half-way house" in Chicago. Ms. Bailor sued the Salvation Army on the basis of common law negligence and later amended her complaint to bring an action against the United States under the Federal Tort Claims Act, 28 U.S.C. sec. 1346. The district court granted the Salvation Army's motion for summary judgment and granted the Government's motion to dismiss for lack of jurisdiction. For the reasons stated below, we affirm.

I. BACKGROUND

A. Facts

William Holly, a convicted felon, *fn1 violated the conditions of his work release from prison in December 1988 when he left Fort Wayne, Indiana and travelled to Indianapolis for a weekend. *fn2 Federal marshals were notified, and Holly was picked up and arrested December 12, 1988 on an escape charge for which he later received a twenty-four-month sentence.

The Bureau of Prisons sent Holly to the Metropolitan Correctional Center ("MCC"), a secure facility for federal inmates in Chicago, to serve his term. *fn3 After Holly had served some time at the Correctional Center, he completed an application for transfer to a community corrections center, a halfway house in which federal inmates can spend the last six months of their sentence. These halfway houses are designed to ease the transition for inmates from prison to society.

In December 1990, a Bureau of Prisons group recommended that Holly be transferred to the Salvation Army facility. The group expressed concern over Holly's placement because of a prior conviction for bank robbery. However, the acting warden of the Correctional Center approved the application after reviewing Holly's file and learning that the warden had previously discussed Holly's placement and had expressed an intent to approve the transfer. The file included sentence monitoring reports, progress reports, a FBI record sheet, and the U.S. Probation Department's pre-sentence report prepared in connection with Holly's escape charge.

The entire referral packet was reviewed by the intake officer at the Salvation Army facility. The Salvation Army has the right to reject applicants, but, generally, individuals with a history of "excessive violence" constitute the only rejections. *fn4 Additional information from the Bureau of Prisons was requested, but none was made available. With the exception of a 1966 rape charge, Holly's history was deemed unremarkable, and his transfer was approved. On January 21, 1991, Holly was transferred to the Salvation Army facility.

At the Salvation Army facility, as in other community correction centers, Holly was free to leave the facility as long as he returned by 11:00 p.m., participated in a counseling program, and submitted to random drug testing. In April, Holly's drug test revealed traces of cocaine. The Salvation Army personnel had two options upon the failure of a drug test. They could draft an incident report, give Holly a copy, and proceed to a disciplinary hearing. Holly would be able to remain at the facility until the resolution of such a proceeding. In the alternative, if the personnel believed Holly presented a risk of harm to himself or other residents, or was a potential escapee, the personnel could request, without any notice or hearing, that the United States Marshals Service immediately detain him. The Salvation Army personnel believed Holly did not present an immediate risk and informed him on May 6, 1991 about the disciplinary violation. Approximately eight minutes later, Holly left the facility after being warned by the Salvation Army shift manager about the consequences of such an action. At the time, Holly stated, "I'm out of here. I'm not going back to no MCC."

The Bureau of Prisons was immediately notified of Holly's escape. The Bureau in turn notified the federal marshals for the Northern District of Illinois. Two days later, Holly contacted Ken Jackson of the Prison Fellowship Ministries in Fort Wayne for assistance. Holly informed him that he was released and was coming for assistance. Mr. Jackson asked Holly to telephone him when he arrived into town.

On May 9, 1991, Holly called Jackson's office numerous times. Jackson and his staff, with the exception of Adela Bailor, were not present in the office. Holly ultimately arrived at the offices in the afternoon; he was told by Ms. Bailor that he could wait for Mr. Jackson. Holly became increasingly agitated and hostile. He eventually raped and beat Ms. Bailor.

B. District Court Proceedings

On May 6, 1993, the Bailors filed their complaint against the Salvation Army, the Prison Fellowship Ministries, and Ken Jackson. They alleged common law negligence against the Salvation Army, and common law intentional tort and sec. 1983 claims against Mr. Jackson and the Prison Fellowship Ministries. Jurisdiction was based on diversity of citizenship. In November 1993, the Bailors filed an amended complaint, adding the United States pursuant to the Federal Tort Claims Act.

In June 1994, the district court issued its judgment. The court granted the summary judgment motions of the Salvation Army, Jackson, and the Prison Fellowship Ministries. It also granted the United States' motion to dismiss for lack of jurisdiction. The Bailors appeal ...


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