The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on the Report and Recommendation ("Report") (Doc. 155) of Magistrate Judge Philip M. Frazier recommending that the Court grant the United States' motion for summary judgment on Count I (Doc. 108). Plaintiff Jose Sanchez-Soriano has filed objections to the Report and has attached to his objections deposition transcripts and exhibits that were not attached to his response to the summary judgment motion (Docs. 156 & 159). The United States has responded to Sanchez-Soriano's objection (Doc. 161). The United States also objects to the Report (Doc. 157) and asks the Court to strike the evidentiary materials submitted by Sanchez-Soriano with his objections (Doc. 160).
I. Report and Recommendation Review Standard
The Court may accept, reject or modify, in whole or in part, the findings or recommendations of the magistrate judge in a report and recommendation. Fed. R. Civ. P. 72(b)(3). The Court must review de novo the portions of the report to which objections are made. The Court has discretion to conduct a new hearing and may consider the record before the magistrate judge anew or receive any further evidence deemed necessary. Id. "If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error." Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999).
From July to October 2007, Sanchez-Soriano was in the legal custody of United States Immigrations and Customs Enforcement ("ICE") and was being housed in the Tri-County Detention Center ("Tri-County"), a non-federal facility owned and operated by Pulaski County, Illinois. Tri-County was housing Sanchez-Soriano pursuant to an intergovernmental service agreement ("IGSA") Pulaski County had with the United States Marshals Service to house federal detainees. Sanchez-Soriano is paraplegic and alleges that during his stay at Tri-County he did not receive the care he needed and, as a result, developed bedsores, lesions and other injuries. Sanchez-Soriano believes ICE breached its duty of care to him by failing to select an appropriate detention center and by failing to ensure that detention center provided an adequate level of physical care during his detention.
Sanchez-Soriano brought this case against a variety of people or entities connected with his detention, including the United States. The current operative pleading, the Fourth Amended Complaint, alleges causes of action under the Federal Tort Claims Act ("FTCA") (Count I), under the Civil Rights of Institutionalized Persons Act (Count II), under a res ipsa loquitur negligence theory (Count III), and under Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971)(Count IV). The Court has dismissed Count I against defendants Geo Group, Pulaski County, Randy Kern and Cliff Cavins, Count II and Count IV*fn1 in their entirety (Doc. 135). The Court further struck Sanchez-Soriano's allegations of medical negligence in Counts I and III. The United States remains a defendant in Counts I and III.
The United States' motion for summary judgment (Doc. 108) asks the Court to find that the sovereign immunity of the United States renders it immune from Sanchez-Soriano's claims. Specifically, it argues that the discretionary function exception and the independent contractor exception to the FTCA's waiver of sovereign immunity bar Sanchez-Soriano's claims against the United States. Alternatively, it argues that the United States is not substantively liable for any FTCA violation. In setting forth its argument, the United States refers in passing to Sanchez-Soriano's criminal history.
In response (Doc. 145), Sanchez-Soriano argues that Tri-County is not an independent contractor because federal standards control its housing of detainees for United States agencies. It believes because it does not have complete control over its own operations in housing federal detainees, the independent contractor exception to the FTCA immunity waiver does not apply. In support of this argument, Sanchez-Soriano points to deposition testimony of two federal employees involved in inspections of Tri-County, but he fails to attach the depositions to his response. Sanchez-Soriano also argues that the United States has not provided specific details showing the decision to place Sanchez-Soriano at Tri-County was an exercise of discretion for policy reasons. He also points to the relevant Immigration and Naturalization Service (ICE's predecessor) Detention Standard for medical care to argue there was no discretion in detainee placement and care decisions. Therefore, Sanchez-Soriano argues, the discretionary function exception to the FTCA immunity waiver does not apply. In support of this argument, Sanchez-Soriano points to deposition testimony, which he failed to attach to his response. He also counters the United States' substantive argument by citing to exhibits generally without identifying them or explaining their significance.
In reply (Doc. 150), the United States reiterates its prior arguments and argues that Sanchez-Soriano arrived at Tri-County with the ulcers and lesions he claims to have developed there and that Tri-County was an appropriate placement for him. It attaches exhibits to its brief to counter Sanchez-Soriano's unsupported factual allegations in his brief.
Magistrate Judge Frazier decided:
* to exclude from consideration Sanchez-Soriano's criminal history because it is immaterial to the United ...