The opinion of the court was delivered by: Judge Wayne R. Andersen
MEMORANDUM OPINION AND ORDER
Plaintiff Joseph Chess, a federal prisoner incarcerated at the Metropolitan Correctional Center ("MCC"), initiated this civil rights action in September 2007 against four MCC psychologists, a fellow inmate Jerome Adams, and the Bureau of Prisons (BOP). Initially, only the MCC Defendants were served. Plaintiff alleges that, on February 6, 2007, Adams poured scalding water on Plaintiff, causing him to suffer severe burns to his face, neck, eye, and ear. Allegedly, the MCC Defendants knew that Adams was mentally unstable and dangerous, yet allowed him to be housed in general population. In August 2008, the court denied the MCC Defendants' motion to dismiss for failing to exhaust, but later granted their motion for summary judgment on the exhaustion issue. (R. 46 and 47, Order and Opinion of 1/23/09.) The court dismissed Plaintiff's claims against the MCC Defendants but, noting that his complaint included an exhausted claim against the United States, allowed Plaintiff to proceed with a Federal Tort Claims Act ('FTCA") claim and ordered that the United States be served and respond to the complaint. (R. 46, Order of 1/23/09.)
Currently before the court is the United States' motion to dismiss. (R. 55.) The United States contends that the discretionary function exception applies to Plaintiff's claims, such that it is immune from suit. Plaintiff has filed responses. (R. 60 and 66). The United States has replied. (R. 64.) For the following reasons, the court denies the Government's motion to dismiss.
When considering a motion to dismiss, the court assumes to be true all well-pleaded allegations and views the alleged facts, as well as any inferences reasonably drawn therefrom, in a light most favorable to the plaintiff. Erickson v. Pardus, 551 S.Ct. 89, 93-94 (2007); Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000). The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide the merits of the case or determine the plaintiff's ability to succeed on his claims. Weiler v. Household Finance Corp., 101 F.3d 519, 524 n.1 (7th Cir. 1996).
Under the notice pleading requirement of Fed. R. Civ. P. 8(a)(2), the complaint need only provide"a short and plain statement of the claim showing that the pleader is entitled to relief." Pleading extensive facts is not necessary. Thompson v. Washington, 362 F.3d 969, 971 (7th Cir. 2004). However, the allegations of a complaint must at least "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level.'" E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 -77 (7th Cir. 2007). A court need not presume facts not alleged. Id. Furthermore, if a plaintiff pleads facts that demonstrate that he has no claim, a court may dismiss the complaint. McCready v. eBay, Inc., 453 F.3d 882, 888 (7th Cir. 2006).
Discretionary Function Exception
The United States typically enjoys sovereign immunity from suits for damages. The Federal Tort Claims Act (FTCA), however, waives the Government's immunity "for civil actions... for money damages... for... personal injury... caused by the negligent or wrongful act or omission of any employee of the Government... under circumstances where... a private person... would be liable" under applicable state tort law. 28 U.S.C. § 1346(b)(1); Parrott v. U.S., 536 F.3d 629, 635 (7th Cir. 2008). In this case, the Government argues that, although the FTCA waives sovereign immunity to allow tort claims against it, the discretionary function exception bars Plaintiff's claims. (R. 56 at 2-6.) The discretionary function exception applies to claims "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.A. § 2680. The exception serves 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." Palay v. United States, 349 F.3d 418, 427 (7th Cir. 2003) (quoting United States v. Gaubert, 499 U.S. 315, 323 (1991)).
Two factors must be present for the exception to apply: "(1) the action complained of must involve an element of judgment or choice; and (2) the action must relate to considerations of public policy." Bailor v. Salvation Army, 51 F.3d 678, 685 (7th Cir. 1995) (citing Gaubert, 499 U.S. at 322-23); Berkovitz v. United States, 486 U.S. 531, 536-37 (1988)).
With respect to the judgment or choice prong, so long as the action or inaction that is the subject of the FTCA claim involves an element of discretion, this prong is satisfied, even if the Government employee's decision was an abuse of discretion. Palay v. U.S., 349 F.3d at 428; Bailor, 51 F.3d at 685. However, "[i]f 'a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow,' the discretionary function exception does not apply." Calderon v. U.S., 123 F.3d 947, 949 (7th Cir. 1997) (quoting, Gaubert, 499 U.S. at 322). The failure to follow a specific rule, mandate, or order constitutes an absence of discretion, as opposed to an abuse of discretion. See Gaubert, 499 U.S. at 322-24. Thus, even when a more general decision may be discretionary, such as whether to keep two inmates separated, if "a valid separation order is in effect, there is no discretion left to operate on that narrow question." Parrott v. U.S., 536 F.3d at 638.
With respect to the public policy prong, the decision that is the subject of the FTCA claim must involve a policy concern. The exception, however, is not limited to the decisions by those in "policymaking or planning ranks of government," but also applies to the day-to-day decisions when carrying out such policies. Palay, 349 F.3d at 428. "It is the nature of the conduct, rather than status of the actor, that governs whether the discretionary function applies in a given case." Palay, 349 F.3d at 428. "When established government 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." Id. (quoting Gaubert, 499 U.S. at 324). Thus, the second prong of the discretionary function exception applies not only to the promulgation of Bureau of Prisons (BOP) rules and regulations enacted by policymakers, but also to the discretionary decisions of officers when carrying out such rules. Id.
Before a court engages in the two-part inquiry to determine if the discretionary function exception bars a suit based upon Government conduct, "[the court] must identify the conduct at issue." Merando v. United States, 517 F.3d 160, 165 (3rd Cir. 2008). In the instant case, the Government identifies the challenged conduct as "Adams' placement in general population." (R. 56, Defs.' Motion to Dismiss, 6.) The Government states that the placement of inmates within a facility is left to the discretion of BOP officials. In support of this contention, the Government cites 28 C.F.R. § 541.22(a) and Gaubert, 499 U.S. at 324. Neither § 541.22(a) nor the Government's citation to Gaubert assists with determining whether Adams' placement in general population was discretionary.
The citation to Gaubert refers to the Court's reasoning that "if a regulation allows the employee discretion, the very existence of the regulation creates a strong presumption that a discretionary act authorized by the regulation involves consideration of the same policies which led to the promulgation of the regulations." (R. 56, Motion to Dismiss, p.6, quoting Gaubert, 499 U.S. at 324.) The quote from Gaubert addresses whether a decision satisfies the second prong of the discretionary function test -- whether a decision involves policy considerations -- and does not assist in determining whether the challenged conduct in this case was discretionary. Section 541.22(a) states that a BOP warden or lieutenant "may" place an inmate in administrative detention under certain circumstances, including if the inmate is a new commitment awaiting classification or if the inmate's continued presence in general population poses a threat of safety to the inmate or others, or he is ...