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Joseph Chess v. United States of America

December 1, 2011

JOSEPH CHESS, PLAINTIFF,
v.
UNITED STATES OF AMERICA,
DEFENDANT.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

On February 6, 2007, Joseph Chess, then an inmate at the Metropolitan Correctional Center Chicago ("MCC"), suffered second-degree burns when another inmate, Jerome Adams, threw a cup of scalding water onto Chess's face and then physically assaulted him by hitting him with the cup and punching him. In September of 2007 Chess brought this action to recover for the injuries he sustained as a result of the attack. Plaintiff asserts a claim for relief against the United States ("defendant" or "Government") pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. ("FTCA"). Chess's second amended complaint asserts that the United States failed to properly screen Adams upon intake and also failed to monitor him afterward, both on and before February 6, 2007. Chess and the United States have brought cross-motions for summary judgment. For the reasons stated below, plaintiff's motion for summary judgment is denied, and defendant's cross-motion for summary judgment is granted in part and denied in part.

I.

Joseph Chess entered the MCC in September of 2006. Chess was housed in general population unit 13 ("Unit 13"). Jerome Adams had entered the MCC as a pre-trial inmate in January 2006. He was supposed to stand trial for bank robbery the next month but was found incompetent. Adams was tranferred to the Federal Medical Center in Butner, North Carolina ("FMC Butner") for treatment and restoration of competency. During his treatment at FMC Butner, Adams was diagnosed with Schizoaffective Disorder, Bi-Poler Type. On September 13, 2006, Adams returned to the MCC after BOP medical staff at FMC Butner determined that he was stable, receiving medication, and competent to stand trial. When Adams returned to the MCC, he was housed in Unit 13.

On September 28, 2006, Adams requested protective custody because he felt threatened by other detainees. Adams was placed in administrative detention in the special housing unit ("SHU"). BOP staff later determined that Adams did not want to be in the general population unit because he did not like being around gang members, though no specific threat had been made against him. On November 3, 2006, Dr. John Pindelski, chief psychologist at MCC, met with Adams to discuss the need for Adams to return to the general population.*fn1 Adams reiterated his concern about gang members and stated that he would refuse placement in the general population. During the meeting, Adams was insolent toward Dr. Pindelski and refused to comply when Dr. Pindelski instructed him to remain in his chair. As a result, Adams was issued an incident report for his conduct. Adams was subsequently issued another incident report for failing to comply with an order to return to the general population on November 20, 2006.

Adams did return to the general population on December 4, 2006, and remained there until December 22, 2006. On December 23, 2006, BOP psychologist Dr. Dan Greenstein entered a progress note on Adams, stating that he had been placed in the SHU the prior evening. The progress note stated that the operations lieutenant who moved Adams to the SHU reported that Adams "appeared on the verge of striking out [at] him" and that the reason for the SHU placement was "protection of inmate and of staff." Dr. Greenstein also noted that during the interview on December 23, Adams "stared intensely at [him] in a menacing manner" and "failed to reply about whether he has been medication compliant." The December 23 review was the last documented review until February 16, 2007, after the attack on Chess. On December 28, 2006, Adams was returned to Unit 13.

At around 9:30 p.m. on February 6, 2007, Officer DePaul, the correctional officer assigned to Unit 13, began his lockup routine. This included DePaul telling the inmates to get their water and ice and instructing them to get ready for the lock-down. DePaul also collected his personal items and packed them away in his duffle bag. The call for the inmates to prepare for lock-down prompted Chess to go downstairs to collect the rags that he previously used to clean the dayroom. While Chess was descending the stairs, Adams threw a cup of scalding hot water in Chess's face, slammed the cup in Chess's face, and proceeded to punch Chess in the face repeatedly. After the attack was quelled, Chess was taken to Northwestern Hospital, where he was treated for second-degree burns to his face, neck, ear, and eye.

After the attack, DePaul was disciplined by the BOP for inattention to duty and received a five-day suspension.*fn2 Chess submitted an administrative tort claim to the BOP under the FTCA, but the claim was denied on July 2, 2007.

II.

Summary judgment is appropriate where the record shows that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A genuine issue for trial exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). On cross-motions for summary judgment, I construe all facts and inferences "in favor of the party against whom the motion under consideration is made." In re. United Air Lines, Inc., 453 F.3d 463, 468 (7th Cir. 2006) (quoting Kort v. Diversified Collection Servs., Inc., 394 F.3d 530, 536 (7th Cir. 2005)). Because the defendant has raised the discretionary function exception as a defense, I will start with a consideration of its motion.

A. Discretionary Function Exception The United States argues that it is immune from suit because the discretionary function exception to the FTCA applies to this case. The United States typically enjoys sovereign immunity from suits for damages. The FTCA, however, waives this immunity in actions "for money damages ... for ... personal injury ... where the United States, if a private person, would be liable" under the applicable state tort law. 28 U.S.C. § 1346(b)(1); Parrott v. United States, 536 F.3d 629, 635 (7th Cir. 2008). Waiver under the FTCA is not absolute, and the discretionary function exception is one limit on the FTCA's waiver. Calderon v. United States, 123 F.3d 947, 948 (7th Cir. 1997). Specifically, the discretionary function exception bars 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. § 2680(a). The 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." Calderon, 123 F.3d at 949 (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984)). "It is the Government's burden to assert [this] exception[] if and when it seeks to defeat a claim because of [it]." Parrott, 536 F.3d at 634-35.

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 United States v. Gaubert, 499 U.S. 315, 322-23, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991); Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536-37, 108 S.Ct. 1945, 100 L.Ed.2d 531 (1988)).

The Government cannot satisfy the first prong if "a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow" because there is no "element of judgment or choice" involved. Calderon, 123 F.3d at 949 (quoting Gaubert, 499 U.S. at 322). With respect to the second prong, the decision at issue in the FTCA claim must involve a public policy concern, but the exception is not limited to decisions by those in "the policymaking or planning ranks of government." Palay v. United States, 349 F.3d 418, 428 (7th Cir. 2003). Thus, even day-to-day discretionary decisions may satisfy the second prong if they are "susceptible to policy analysis." Id. Further, I must presume that an action is grounded in public policy "where the statute or regulations allow the government agent to exercise discretion." Id. at 950 (citing Gaubert, 499 U.S. at 323); see also Palay, 349 F.3d at 428.

The Government makes several arguments for why the discretionary function exception should apply in this case. First, it argues that under Calderon, Chess's claim that defendant violated its duty of care, as set forth in 18 U.S.C. ยง 4042, is barred. Section 4042 states that the BOP "shall ... provide for the safekeeping, care, and ...


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