Opinion
CV 00-0529 (RR)
March 19, 2001
ROBERT BROWN, Inmate No. 42463-054, FCI Schuylkill, Minersville, PA, Plaintiff Pro Se.
Amy R. Chester, Special Assistant U.S. Attorney, HONORABLE LORETTA E. LYNCH, UNITED STATES ATTORNEY, EASTERN DISTRICT OF NEW YORK, Brooklyn, New York, Attorney for Defendant.
Memorandum and ORDER
Plaintiff Robert Brown is a federal prisoner who, in 1999, injured his hand while playing basketball at the Metropolitan Detention Center ("MDC") in Brooklyn, where he was then detained on charges filed against him in the Southern District of New York. Brown asserts that the injury occurred when he cut his hand on metal bolt heads that were not flush with the steel plate anchoring the backboard to the wall. Am. Compl. ¶ 4. He submits that it was negligent to use this particular design to secure the backboard Id. Resp. to Summ. J. Mot. at 2. In the alternative, he submits that it was negligent not to cover the bolt heads with plastic caps to minimize injury. Resp. to Order of 12/27/00 at 1-2.
Initially, Brown sued the Warden of the MDC and the Director of the Bureau of Prisons for violating his constitutional rights by tolerating a hazardous backboard. By order dated March 2, 2000, this court sua sponte dismissed that complaint since the law is clear that mere negligence by a federal official does not state a claim for violation of constitutional rights. See Brown v. Holder, CV 00-0529 (RR) (E.D.N.Y. Mar. 2, 2000).
On March 22, 2000, Brown filed another complaint, arising out of the same facts but invoking the Federal Torts Claims Act ("FTCA"). See 28 U.S.C. § 1346(b), 2672 et seq.. The court accepted the submission as a motion to amend the original complaint. See Brown v. Holder, CV 00-0529 (RR) (E.D.N.Y. Apr. 10, 2000) (order reopening case). Thereafter, Brown moved to amend further to add new parties, including the Attorney General of the United States. By order dated July 28, 2000, the court advised Brown that the only proper defendant in an FTCA case is the United States of America. The following week, on August 7, 2000, the United States moved to dismiss Brown's FTCA complaint or, in the alternative, for summary judgment. A preliminary review of the motion papers raised two concerns. First, it was not clear from the record whether Brown had been advised of the nature and consequences of a summary judgment motion. See Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999). The court remedied this omission by order dated December 27, 2000. Second, although the government relied on the discretionary function exception to the FTCA's waiver of sovereign immunity, 28 U.S.C. § 2680(a), in making its motion, it had not distinguished this case from Coulthurst v. United States, 214 F.3d 106 (2d Cir. 2000), the Court of Appeals' most recent discussion of that exception. Further briefing was requested and has now been received.
Having carefully reviewed the supplemental submissions of the parties, the court concludes that the motion for summary judgment should be granted.
Discussion
28 U.S.C. § 2680(a) provides that Congress's waiver of sovereign immunity to sue the United States for damages under the FTCA "shall not apply to . . . [a]ny claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of . . . an employee of the Government, whether or not the discretion involved be abused." For this "discretionary function exception" to apply, two conditions must be met: (1) the acts complained of must involve an "element of judgment or choice" and not be compelled by statute or regulation, and (2) the judgment or choice at issue must be grounded in "considerations of public policy." Coulthurst v. United States, 214 F.3d at 109 (and cases cited therein).
In Coulthurst, another federal inmate injured himself while using prison recreation equipment, specifically, a weight machine. Id. at 107. He claimed that defendant's failure to inspect the machine for signs of worn cables caused his injury. Id. at 108. The government moved to dismiss relying on the discretionary function exception to the FTCA waiver of sovereign immunity. Id. The Court of Appeals ruled that the exception would apply to so much of plaintiff's claim as faulted federal authorities for negligently designing the procedures and schedules applicable to weight equipment inspection. "These types of negligently made decisions would involve elements of judgment or choice, would not be compelled by statute or regulation, and would be grounded in considerations of public policy since they would involve . . . considerations of economy, efficiency, and safety." Id. at 109. But the Court of Appeals ruled that the exception would not apply to a claim that an official negligently carried out an inspection policy. An employee's "laziness," "haste," or "inattentive[ness]" in carrying out a particular task would not implicate considerations of public policy. Id. at 109-110.
Having carefully considered the distinction drawn in Coulthurst, this court concludes that the negligence complained of by Brown in connection with the basketball backboard in this case does come within the discretionary function exception.
As the government notes in its Memorandum of Law, federal regulations relating to inmate recreation programs require only that wardens provide some opportunities for leisure activities. See 28 C.F.R. § 544.32, 544.81(f). No specific sport or physical recreation is mandated. Similarly, no statute or regulation dictates particular equipment or equipment installation for particular sports. It necessarily follows that a warden's decision to provide basketball as a sports option for inmates involves a discretionary decision. Further choices about how to implement the decision are also discretionary and require considerations of public policy. For example, the warden must balance the physical and psychological benefits to inmates of playing basketball against the security risks presented by this particular team sport. Among these concerns are the possible misuse of equipment, including the hoop and backboard, to endanger other inmates and guards.
Viewed in this context, defendant's decision about how best to anchor a basketball hoop to allow prisoners to play the sport with minimal risk to prison security implicates a discretionary policy choice in the same way that designing weight machine inspection procedures and schedules did inCoulthurst v. United States, 214 F.3d at 109. Indeed, Brown concedes as much when he faults authorities for giving more consideration to "their security" than "inmates' health." Resp. to Order of 12/27/00 at 1-2. Of course, plaintiff also accuses prison officials of "laziness," but nothing in the papers before this court supports the conclusion that there was anything inattentive, hasty, or lazy about the actual backboard installation. Plaintiff's complaint is with the policy decision made by prison authorities, not with its negligent execution. Summary judgment is granted in favor of defendant.
Conclusion
For the reasons stated, the court finds that the discretionary function exception to the FTCA waiver of sovereign immunity applies in this case and that summary judgment must be awarded in favor of the United States.
SO ORDERED.