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April 16, 1996


The opinion of the court was delivered by: CASTILLO

 Plaintiff Faustino Calderon ("Calderon") a former federal inmate who was the unfortunate victim of a vicious assault by his former cellmate, has filed this lawsuit against the United States pursuant to the Federal Tort Claims Act asserting that the United States was negligent in failing to prevent the attack. Presently pending before this Court is the United States' motion to dismiss or, in the alternative, for summary judgment. This motion asserts the discretionary function defense to the Federal Tort Claims Act, under which the United States is protected from liability if the prison officials' actions involved discretion and were related to considerations of public policy, even if the officials abused their discretion or were negligent. For the reasons which follow, the Court concludes that it must grant the pending motion.


 The relevant facts are not in dispute. On January 13, 1993, Faustino Calderon was an inmate at a federal prison located in Oxford, Wisconsin ("FCI Oxford"). His cellmate was Luis Perez. (United States' Statement of Material Facts ("Stmt. Facts") P 5). Calderon had provided information to the government relating to criminal activity by a relative of Perez named Jose Rivera. (Stmt. Facts P 6.) Perez knew or believed that Calderon had provided information to the government about his relative and on several occasions had threatened Calderon and extorted money from him. (Stmt. Facts P 7).

 Calderon told several Bureau of Prisons ("BOP") personnel at FCI Oxford about the threats by Perez, including his supervisor at his prison job, his counselor, his case manager, and his supervisory case manager. (Stmt. Facts P 8).

 On January 13, 1993, as Calderon was preparing to take a shower, Perez grabbed him and then attacked him with a home-made knife or razor knife. (Stmt. Facts P 9). As a result of the attack, Calderon's ear was cut off and he was extensively cut about the head and shoulders. (Stmt. Facts P 10). Calderon was taken to a hospital, his ear was reattached, and he received over 100 stitches. (Stmt. Facts P 11). Perez was convicted of assault for his attack on Calderon and ultimately received a ten year sentence. See United States v. Perez., 79 F.3d 79, 1996 U.S. App. LEXIS 5315 (7th Cir. 96). (Stmt. Facts P 12). In February, 1994, Calderon filed an administrative claim for this incident with the Bureau of Prisons, which denied the claim in August, 1994. (Stmt. Facts P 13).


 The United States seeks the dismissal of this action based on a variety of documents outside the pleadings and the plaintiff has opposed that effort in the same manner. However, this does not automatically warrant conversion of the motion to one for summary judgment, because the United States is asserting that the court lacks jurisdiction over the plaintiff's claims. Crawford v. United States, 796 F.2d 924, 928 (7th Cir. 1986); Castor v. United States, 883 F. Supp. 344, 348 (S.D. Ind. 1995). In this situation the district court is entitled to receive appropriate evidentiary submissions --"any rational mode of inquiry will do." Crawford, 796 F.2d at 929. It must then decide the jurisdictional issue, not simply rule that there is or is not enough evidence to have a trial on the issue. "The only exception is in instances when the jurisdictional issue is 'so bound up with the merits that a full trial on the merits may be necessary to resolve the issue.'" Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990) (quoting Crawford, 796 F.2d at 929). That exception is not triggered by the facts of this case.

 Since the United States seeks a case-dispositive outcome based on its motion, the plaintiff has been properly notified of the proper manner in which to contest the government's evidentiary materials and the consequences of failing to do so. English v. Cowell, 10 F.3d 434 (7th Cir. 1993). The plaintiff has been afforded "a full opportunity to present contradicting affidavits or materials in order to cure a jurisdictional or party defect not capable of being resolved on the words of the complaint." Id. at 437 (citing Fountain v. Filson, 336 U.S. 681, 69 S. Ct. 754, 93 L. Ed. 971 (1949)). Indeed, the plaintiff has submitted such materials to the court for its consideration in ruling on the instant motion.


 Generally, the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b) and 2671 et seq. allows the United States to be held liable for negligence to the same extent as a private individual under like circumstances. 28 U.S.C. § 2674. Further, it is well settled that under the FTCA, federal inmates may sue the United States for injuries sustained while incarcerated in federal prisons. United States v. Muniz, 374 U.S. 150, 153, 10 L. Ed. 2d 805, 83 S. Ct. 1850 (1963). However, the FTCA is a limited waiver of the United States' sovereign immunity, which is further restricted by the discretionary function exception found at 28 U.S.C. § 2680(a). The discretionary function exception provides that the FTCA does not apply to:

any 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).

 The discretionary function exception "marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." United States v. Varig Airlines, 467 U.S. 797, 808, 81 L. Ed. 2d 660, 104 S. Ct. 2755 (1984). The creation of the discretionary function exception reflects a congressional intent "to prevent judicial second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort[ ]" and "to protect the Government from liability that would seriously handicap efficient government operations." Id. at 814; see also Rothrock v. United States, 62 F.3d 196, 198 (7th Cir. 1995); Bailor v. Salvation Army, 51 F.3d 678, 685 (7th Cir. 1995); Cassens v. St. Louis River Cruise Lines, Inc., 44 F.3d 508, 511 (7th Cir. 1995).

 In determining whether the discretionary function exception applies, "two requirements must be met: (1) the action complained of must involve an element of judgment or choice; and (2) the action must relate to governmental actions or decisions involving considerations of public policy." Rothrock v. United States, 62 F.3d 196, 198 (7th Cir. 1995) (citing United States v. Gaubert, 499 U.S. 315, 322-23, 113 L. Ed. 2d 335, 111 S. Ct. 1267 (1991) and Berkovitz v. United States, 486 U.S. 531, 536-37, 100 L. Ed. 2d 531, 108 S. Ct. 1954 (1988)); see also Bailor, 51 F.3d at 685; Cassens, 44 F.3d at 512; Barrett, 845 F. Supp. 774, 780 (D. Kan. 1994).

 Applying the foregoing considerations to this action, "if it is determined that the actions of the Bureau of Prisons involved discretion [and that the actions were related to considerations of public policy], the discretionary function exception will serve to protect the government from suit, even if the Bureau of Prisons abused its discretion or was negligent in ...

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