Opinion
Case No. CV 09-5651VAP(Ex)
10-31-2013
MANUEL JOE PADILLA, Plaintiff, v. UNITED STATES OF AMERICA, Defendant .
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
This case was tried to the Court without a jury on August 28, 29, and 30, 2013, and the Court took the matter under submission at the conclusion of trial. The Court, having considered all the evidence presented by the parties, the written submissions from both sides, and the argument of counsel, issues the following Findings of Fact and Conclusions of Law.
FINDINGS OF FACT
1. Tony Richard Padilla ("Padilla") was the son of Plaintiffs Manuel Joe Padilla and Clara Fernandez. Padilla had been incarcerated at the United States Penitentiary in Victorville, California ("USP Victorville") since April 11, 2006, and as of May 27, 2006, he was housed in the penitentiary's Special Housing Unit ("SHU"). He had been transferred to the SHU to be placed in protective custody after he had been attacked by other inmates affiliated with a different prison gang. Ex. 24J. 2. Mario Peña Llanas ("Peña Llanas") had been incarcerated at USP Victorville since January 27, 2006, after his conviction for violation of 8 U.S.C. § 1326, illegal reentry into the United States after deportation. He was transferred to the SHU on May 27, 2006, because he had been fighting with other inmates while housed in general population. Ex. 23F. 3. Upon his transfer to the SHU on May 27, 2006, Peña Llanas was assigned to share Cell 206 with Padilla. On July 9, 2006, Padilla and Peña Llanas were moved to Cell 215. 4. USP Victorville is one facility in the Victorville Federal Correctional Complex, and is located within the Central District of California.
Clara Fernandez died during the pendency of the case and has been dismissed.
Conditions and Procedures at USP Victorville's
Special Housing Unit
5. Inmates housed in the SHU at USP Victorville are confined to their cells for 23 hours each day, taking their meals and showers inside the cell. They are released for one hour per day to exercise in a confined exercise area. The dimensions of both cells shared by Padilla and Peña Llanas, Cells 206 and 215, were eight feet by twelve feet. 6. SHU staff conducts checks on the inmates every 30 minutes during daytime and evening hours. During these checks, the correctional officers look into every cell through the window in the cell door. Inmate safety is the primary purpose of these checks. 7. Five times per day, SHU staff does an inmate count. These are conducted at midnight, 3:00 a.m., 5:00 a.m., 4:00 p.m., and 10:00 p.m. on weekdays; the primary purpose of the inmate count is ensuring that all inmates are present and accounted for. 8. Approximately three times per week, the lieutenant in charge of the SHU conducts rounds, during which he or she addresses such issues as medical and dental care needs, counseling, and law library access with the inmates. The lieutenant looks into each cell during these rounds, and spends between 15 seconds and 15 minutes talking to each inmate. The warden conducts rounds of the SHU once per week, accompanied by other Bureau of Prisons ("BOP") staff.
Policies in Force at the USP Victorville SHU Regarding
Violence Between Inmates
9. The evidence presented at trial revealed (1) a policy existed requiring BOP staff to investigate reports or witnessed incidents of fighting between cellmates; and (2) no policy, written or otherwise, existed mandating reassignment of cellmates following a physical altercation.
a. All of the BOP staff members who testified were careful to state (in nearly identical language) that there were no mandatory written BOP policies regarding the reassignment of cellmates who engaged in physical fighting.10. In sum, the evidence was insufficient to demonstrate the existence of a mandatory, nondiscretionary policy of separating cellmates housed in the SHU. The testimony taken as a whole revealed a policy and practice of investigating reported or observed inmate fighting or violence, but the outcome of such investigations, i.e., whether the cellmates would be reassigned, depended heavily on a number of factors. Even the evidence most favorable to Plaintiff on this issue, the testimony by correctional officers Diaz and Sanchez that they could not recall any instances when cellmates who fought were not reassigned, and by Hodak that his usual practice or protocol would be to reassign cellmates after a fight in order to avoid future problems, does not amount to evidence of a nondiscretionary policy mandating such reassignments in all circumstances where fighting occurred.
b. Jermaine Diaz worked as a correctional officer in the USP Victorville SHU from May 2006 through August 2006. He investigated any reports made to him of inmate fights, and would notify the Officer in Charge and the lieutenant in his chain of command of any such reports or incidents. He could not recall any situation where two cellmates were found fighting and were not separated, i.e., not reassigned to share a cell with a different inmate.
c. Tony Quale, employed by BOP at the Victorville Federal Correctional Complex since 2000, first assigned to the SHU in 2005, and now holding the title of "Safety and Compliance Specialist" at USP Victorville, testified no mandatory policy exists mandating separation of inmates following a report of violence between them. He would report any inmate fights he observed to the SHU lieutenant, and would investigate any reports of violence. Pedro Barajas, a correctional officer working in the SHU in August 2006, testified he too investigated when he observed or got reports of inmate fights, and would pass along the information to his superior officer. Correctional Officer Joseph Martinez testified to the same effect: he would investigate and report to his superior officer any reports or observations of inmate fights. Both Quale and Barajas testified that no BOP policy exists regarding procedures that staff must follow when an inmate reports a fight.
d. Jesus Sanchez, another corrections officer working at the SHU in USP Victorville in August 2006, testified that when he saw inmates fighting, he would separate the inmates in order to investigate. He could not recall any
instances where inmates who fought in the SHU were not reassigned to different cells.
e. Eduardo Madrid, another correctional officer working at the USP Victorville SHU in August 2006, testified that fighting between inmates was "not tolerated" by the staff, i.e., both inmates would be disciplined if found fighting.
f. Scott Williams served as the lieutenant in charge of the SHU at USP Victorville in August 2006. He testified that the SHU was filled to capacity at that time; if an inmate requested a move, he would have to swap cells with another inmate. He too testified that inmate fighting "was not tolerated."
g. Like the other BOP employees who testified, Williams emphasized the lack of a written institutional policy mandating separation of cellmates who had fought.
h. According to Williams's trial testimony, if an inmate submitted a written complaint, the complaint would be sent to Williams, who would read it, and if it referred to a fight or assault, he first would investigate by talking to both inmates. If the inmates were housed together, Williams would reassign them to different cells only if he thought the fighting would continue. Williams also testified that a
written complaint about inmate fighting would not be retained in an inmate's file or BOP files unless, after investigation, the complaint was found to be "legitimate."
i. Captain Robert Hodak, who was a Special Investigation Services ("SIS") agent at USP Victorville in August, 2006, testified that although it was "always a problem" to reassign inmates, it was done whenever necessary. Although at trial, Hodak testified that the only factors BOP staff consider in making cell assignments for SHU inmates were "race, religion, gang affiliation, basis for transfer to the SHU, and geography," during his deposition, Hodak stated he would reassign two cellmates who requested it "to avoid problems."
j. Hodak also testified that all complaints were passed on to him because the staff had the obligation to do so, and it was his practice to investigate any complaint of fighting and err on the side of caution by separating the cellmates. Finally, Hodak testified during his deposition that if inmates celled together posed a threat to one another, the "general understanding" or unwritten policy was to separate them.
k. The BOP officials testified that serious incidents of violence between inmates must be
reported to the lieutenant in charge of the SHU. Williams and Hodak testified that they would receive reports of any violent conflicts between inmates; Hodak testified that he knew would be notified of such because corrections officers were required to make such reports.
l. Upon receiving such a report of violence or threatened future violence, the BOP staff would conduct an investigation and attempt informally to determine if the cellmates were seeking separate quarters or if there was a danger of future violence.
Altercations Between Padilla and Peña Llanas
11. Peña Llanas's BOP records showed he was disciplined numerous times for fighting before 2006. See Exs. 10-B, 10-C, 10-D, 10-F, 10-G. Peña Llanas admitted during his trial testimony that by May 27, 2006, when he was transferred to the USP Victorville SHU, he had been in fights with other inmates about 20 times. 12. Nevertheless, SHU staff considered Peña Llanas one of the "less dangerous" inmates on the unit, and in approximately July 2006, Williams assigned him an orderly position on his tier. Williams testified he would not have given Peña Llanas this assignment if he had known that Peña Llanas had ever assaulted his cellmate in the SHU. Serving as an orderly was a privilege for SHU inmates, because rather than being confined to one's cell for 23 hours per day, an orderly was allowed outside while performing his duties and often had access to extra food. 13. Peña Llanas testified he began fighting with Padilla within 15 minutes of meeting him in the cell they were assigned to share on May 27, 2006. The fight began when Peña Llanas observed Padilla exposing his genitals to an inmate housed across the hall. Although Padilla stopped this behavior when Peña Llanas protested, he soon resumed. Peña Llanas began to fight with Padilla, and hit or punched him repeatedly. Peña Llanas called out to a correctional officer he heard in the corridor, and told the officer he and Padilla were fighting because Padilla repeatedly exposed his genitals. Peña Llanas also told this correctional officer that things between the two cellmates "were getting out of hand," and showed his injured hand. The correctional officer responded by telling Peña Llanas to "do what he had to do" and that there should be "no blood." Peña Llanas told the correctional officer he was worried about his safety because Padilla was much larger and heavier, and that he wanted to be moved to a different cell. The correctional officer told him there were no cells available. 14. Later the same day, after a shift change, Peña Llanas told another officer he was worried about his safety, showed the officer his injured hand, and asked to be transferred. This officer also told Peña Llanas there were no available cells to which he could be transferred. 15. Several BOP employees, including Quale, Martinez, Diaz, Williams, Sanchez, and Hodak, testified that Peña Llanas and Padilla appeared to get along well as cellmates; at least one of these witnesses described the two as a "happy little couple." Hodak, for example, testified he was not aware of any problems or discord between the two cellmates before August 8, 2006. Other officers testified that they never witnessed or heard of any discord between Peña Llanas and Padilla. 16. Peña Llanas testified that after his initial requests for transfer were denied, he told Padilla he did not want to continue fighting and began to try to get to know and help his cellmate. Padilla showed Peña Llanas pictures of his family, and Peña Llanas helped Padilla by writing letters for him. This confirms the testimony from the BOP staff that there appeared to be no friction between these cellmates. 17. Nevertheless, Padilla's chronic, open masturbation in the shared cell was a constant cause for arguments and fights between the two cellmates, and Peña Llanas testified that he continued to complain about it to correctional officers. He complained both orally and by sending "cop outs," or written complaints, requesting to speak to the lieutenant in charge of the SHU about a transfer. The absence of any record of these written complaints does not undercut Peña Llanas's credibility on this issue; as noted above, the BOP employee witnesses testified that such records were not retained unless an investigation had been done and any complaint had been "sustained." 18. Peña Llanas testified that he and Padilla physically fought about ten times before August 7, 2006, and some of these fights were witnessed by correctional officers, including Officers Madrid and Diaz. Peña Llanas brought these fights to the attention of other correctional officers. 19. Peña Llanas also testified that although he repeatedly complained to corrections officers about Padilla's chronic masturbation, his fear of Padilla, and his fear of future violence between him and his cellmate, his complaints and warnings were never investigated. 20. The Court found credible Peña Llanas's testimony regarding (1) the pattern of violent conflict between Padilla and Peña Llanas, (2) his verbal and written complaints to BOP staff, and (3) the failure of the BOP staff to investigate or act in any manner on the complaints and warnings.
a. Peña Llanas's testimony that he assaulted Padilla approximately ten times before August 7, 2006, constituted admissions against his penal interest. Even if the statute of limitations, or the plea agreement between Peña Llanas and the government, barred his future prosecution for this conduct, it still constitutes admission of21. Williams and Hodak testified they were unaware of any violence between Padilla and Peña Llanas. They each testified they never received or heard any reports of past confrontations, written or oral, nor any warnings of future violence. 22. Their subordinates testified they knew it was their responsibility to forward any complaints by inmates to the lieutenant in charge, or to investigate these complaints themselves. Nevertheless, they all denied having received any complaint or warning from Peña Llanas, and denied any awareness of the assaults inflicted on Padilla by Peña Llanas. 23. Hence, having accepted the testimony of Peña Llanas that he made complaints and warned of future violent conflicts with his cellmate, the Court finds that either (1) those officials with supervisory responsibility in the SHU received the complaints and failed to act on them, or (2) those corrections officers to whom the complaints were made orally, or to whom the written complaints were handed, failed to forward them to their superiors.
criminal conduct. Furthermore, Peña Llanas stood to gain nothing by testifying for Plaintiff; rather, as he faces a long period of incarceration in BOP custody, testifying against the interests of the Government, and the BOP officials in whose custody he is confined, is also against his interest.
b. Key points of Peña Llanas's testimony were corroborated by other witnesses. For example, corrections officer Barajas testified that when he arrived at Cell 215 on August 8, 2006, he observed that Padilla's face was swollen and puffy. The fatal blows that night, however, were two kicks to Padilla's temple. The swelling and puffiness on his face that officer Barajas observed was consistent, however, with a beating the night before, as Peña Llanas testified he had inflicted on his cellmate because of the latter's open masturbation.
c. Inmate Luiz Edsall testified he had witnessed injuries on Padilla on more than one occasion.
Pefia Llanas pled guilty to voluntary manslaughter and assault with a deadly weapon on February 13, 2009, pursuant to a plea agreement.
The Fatal Assault on Padilla
24. Both Padilla and Peña Llanas were in their cell on August 7, 2006, when Padilla began masturbating; Peña Llanas warned him to stop and when Padilla did not, Peña Llanas punched him in the face, bruising Padilla's eye. 25. Peña Llanas's account that he had inflicted visible injuries on Padilla on August 7, 2006, was supported by testimony from inmate Edsall. Edsall worked as the barber for the SHU inmates, and claimed he saw Padilla with a black eye and bruises and notified Williams about it, who told him there was no other available cell for Peña Llanas. 26. The next day, August 8, 2006, Peña Llanas reported for work on his orderly shift. At the end of his shift at approximately 8:00 p.m., Madrid and Sanchez escorted Peña Llanas back to his cell. Then, according to Peña Llanas, Sanchez observed the obvious injury to Padilla's face from the blows Peña Llanas had inflicted the previous day. Sanchez asked Padilla if he had suffered an injury in the recreation room, and Padilla gestured toward Peña Llanas. Nevertheless, the officers placed Peña Llanas back in his cell with Padilla and uncuffed him. 27. Shortly after this, Peña Llanas observed Padilla once again masturbating, this time while looking at a letter written to Peña Llanas by his sister. This angered Peña Llanas so much that he grabbed the letter away from Padilla and kicked him twice, hitting Padilla in the temple with his foot. 28. Peña Llanas did not intend to kill Padilla when he kicked him, but was angry with his cellmate and wanted to make Padilla stop masturbating. He was afraid of Padilla, because of the latter's size advantage, and testified he previously had told correctional officers he was afraid he might "do something stupid" if he was not transferred to another cell, as a result of Padilla's inappropriate behavior. And, Peña Llanas explained, when two inmates began fighting, "who knew what would happen?" 29. Immediately after Peña Llanas kicked Padilla in the temple, Padilla fell to the floor, and began groaning, twitching, bleeding and foaming from his mouth. Peña Llanas tried to assist Padilla, brought him water and tried to comfort him, urging Padilla to think of his mother. 30. Barajas was working in the USP Victorville SHU the night of August 8, 2006. At approximately 10:15 p.m. he was called to Cell 215. Peña Llanas told Barajas that Padilla was suffering a seizure. Barajas observed that Padilla's face was "puffy" and one eye was swollen up and closed. 31. Dr. Frank Sheridan, the forensic pathologist who performed the autopsy on Padilla, testified that Padilla died on August 12, 2006, at the Arrowhead Regional Medical Center as a result of the injuries sustained in the assault. 32. Peña Llanas pled guilty to one charge of voluntary manslaughter of Padilla, and one count of assault with a deadly weapon on him, on February 13, 2009.
CONCLUSIONS OF LAW
1. The Court has jurisdiction over this negligence action pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680.
Elements of a Negligence Claim
2. The incident giving rise to this action, i.e., the killing of Tony Padilla, occurred within the jurisdiction of the Central District of California, and the Court applies the California substantive law of negligence. 28 U.S.C. §§ 1346(b), 2674. 3. To prove negligence, a plaintiff must show "that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff." Ann M. v. Pac. Plaza Shopping Ctr., 6 Cal. 4th 666, 673 (1993) (citing United States Liab. Ins. Co. v. Haidinger-Hayes, Inc., 1 Cal. 3d 586, 594 (1970)), and 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 732, p. 60), disapproved on other grounds by Reid v. Google, Inc., 50 Cal. 4th 512, 516 (2010). 4. California applies the substantial factor test of the Restatement Second of Torts to determine causation. "Under that standard, a cause in fact is something that is a substantial factor in bringing about the injury." Rutherford v. Owens-Illinois, Inc., 16 Cal. 4th 953, 968-69 (1997) (citations omitted).
The Discretionary Immunity Exception to the FTCA
5. The FTCA embodies a limited waiver of sovereign immunity for specified tort actions arising out of the conduct of federal employees. 28 U.S.C. § 2674. 6. If the claim under the FTCA stems from a federal employee's exercise of a "discretionary function," however, then liability is barred under 28 U.S.C. § 2860 (a), which provides:
[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or 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.7. The courts have developed a two-part test to determine whether the discretionary function exception bars a particular claim. "First we must decide whether the challenged conduct is discretionary, that is, whether it 'involv[es] an element of judgment or choice. . . . 'This element is not met "when a federal statute, regulation or policy specifically prescribes a course of action for an employee to follow."1 . . . If the act is not discretionary, the government is not immune." Alfrey v. United States, 276 F.3d 557, 561 (9th Cir. 2002) (citing Fang v. United States, 140 F.3d 1238, 1241 (9th Cir. 1998) and Berkovitz v. United States, 486 U.S. 531, 536 (1988)). 8. If the challenged conduct is discretionary, then in the second step the Court determines "'whether that judgment is of the kind that the discretionary function exception was designed to shield.'" Id. 9. The conduct challenged here is the failure by the BOP staff to separate Padilla and Peña Llanas, and assign them to different cells. The Government bears the burden of showing discretionary function immunity applies. Terbush v. United States, 516 F.3d 1125, 1128 (9th Cir. 2008) (citing Prescott v. United States, 973 F.2d 696, 702 (9th Cir. 1992)). Hence, the Court first examines whether the Government has met its burden of showing the absence of any mandatory policy, regulation, or statute regarding the separation of inmates who repeatedly fought in the cell when confined in the SHU. 10. Plaintiff concedes there was no mandatory statute or regulation governing the separation or assignment of inmates in the SHU. He contends, instead, that the BOP "policy" or "protocol" is to separate inmates if the prison staff receive a complaint or request to move an inmate to prevent future harm. [PL's Mem. of Contentions of Fact & Law (Doc. No. 87) at 8.] 11. No evidence of any written policy, statute or regulation was produced at trial. An unwritten policy may suffice under this first step of the analysis, but there must be evidence that such a policy imposed a mandatory duty on prison officials to reassign inmates or investigate threats to the safety of inmates. Alfrey, 276 F.3d at 562; see also Macharia v. United States, 334 F.3d 61, 66 (D.C. Cir. 2003). 12. The testimony from the witnesses employed by the BOP established the lack of an unwritten policy requiring that all cellmates who physically fought be separated and reassigned to different cells. The evidence adduced at trial as to separation of cellmates who physically fought revealed no policy requiring the prison officials to reassign such inmates to separate cells. At least two senior corrections officials testified that after talking to and counseling the inmates involved in a physical fight, the officers frequently determined that it was not necessary to reassign them, as the altercation was an isolated incident and unlikely to be repeated. The evidence from two officers that they were unaware of any instance when cellmates who fought had not been separated, and from another that it was his usual practice to separate cellmates if future violence was feared was not sufficient; that evidence is not tantamount to a showing that a policy exists mandating the separation and reassignment of inmates. 13. Although the trial testimony revealed the existence of a policy that BOP personnel investigate reports or complaints of violence between cellmates, Plaintiff did not rely upon a theory that violation of such a policy caused his damage here. Neither in the Pretrial Conference Order [see Pretrial Conference Order (Doc. No. 92) Ex. A at 3, 5], nor in his Memorandum of Contentions of Fact and Law [see Pl.'s Mem. of Contentions of Fact & Law at 9-13], did Plaintiff specify any mandatory, nondiscretionary policy which would exempt this case from the bar of section 2860(a), other than an alleged policy mandating separation and reassignment of inmates who fought. Accordingly, as the evidence presented at trial did not support a finding that the latter policy existed, Plaintiff's claim is barred.
In any event, even if pled and relied upon by the Plaintiff, existence of a mandatory policy to investigate a report of inmate-on-inmate violence likely would not have supported a finding of liability, as Plaintiff did not produce evidence that the failure to conduct an investigation was a "substantial factor" causing his injury. As described above, the supervisory BOP personnel charged with investigating such complaints testified they did not automatically reassign inmates who fought; rather, they counseled and attempted to discern whether or not the violence would be repeated. Williams and Hodak both testified, moreover, they thought Padilla and Peña Llanas appeared compatible, based on their observations of them.
--------
___________________
VIRGINIA A. PHILLIPS
United States District Judge