RICH v. U.S., NO. 14-7204

Decided: December 29, 2015

The Fourth Circuit affirmed in part and remanded in part.

This case stemmed from Joshua Rich’s (“Rich”) attack in a recreation area while serving a fifty-seven year sentence. He sued for the prison officials’ negligence under the Federal Tort Claims Act, alleging that they failed to protect him from the attack by failing to pat down all inmates before the attack. The district court granted the government’s motion to dismiss due to lack of subject matter jurisdiction due to the discretionary function exception. This appeal followed.

The Fourth Circuit began by determining that the standard of review in this case was de novo for lack of subject matter jurisdiction, and abuse of discretion for denial of jurisdictional discovery. The Court first examines the discretionary function exception, noting that courts apply a two-pronged test. They then applied that test to determine if the discretionary function applied in this case, specifically, if “the challenged governmental conduct involves an element of judgment or choice and, if so, whether that judgment was based on considerations of public policy.” The Court looked at the regulations governing the system (“CIM”) that monitors certain inmates, especially those that need to be separated from others. The Court notes that 28 C.F.R. § 524.72(d) provides that those inmates “may” require separation, but that no specific action is required; officials are instead supposed to consider several factors and use their own judgment to determine if inmates need to be separated. Because they exercise broad discretion, the Court concluded that the first prong of the test was satisfied. The Court then turned to the second prong of the test. Because this is a novel issue for the Court, they looked to other circuits for guidance, and in doing so, agreed that the discretionary functions exception applied in this case.

As to Rich’s argument that he was entitled to discovery, the Court held that the discretionary function exception would still apply “to the decision of the officials regarding prisoner placement,” so the district court did not abuse its discretion when it refused to allow Rich discovery. However, on the issue of whether the district court properly denied discovery regarding Rich’s allegations that the officials did not search his attackers properly, the Court said that those facts are “intertwined” with the “disputed jurisdictional facts.” Because Rich alleged that no pat downs occurred, and because the Court said that even if pat-downs had occurred, there still needed to be a determination if those pat-downs comported with the guidelines in the manual, the Court found that Rich should have been allowed discovery on that issue. Finally, the Court held that Rich may have been able to establish jurisdiction, because the exception would not have applied if the officials’ conduct had been “marked by individual carelessness or laziness.” Therefore, the Fourth Circuit affirmed the application of the discretionary function exception, but vacated the judgment with respect to the pat downs and remanded.

Full opinion

Jennie Rischbieter

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