Inmate’s claim over officials’ delayed response revived

An inmate who alleges North Carolina prison officials violated Bureau of Prison policy by delaying their response while he was being attacked by his cellmate had his suit reinstated because it was possible the officials’ conduct was not part of discretionary decisionmaking.

Background

Scott Tyree, an inmate at the special housing unit at the correctional institution in Butner, North Carolina, filed suit under the Federal Tort Claims Act, alleging that he suffered severe injuries because prison officers failed to respond in a timely fashion under Bureau of Prisons, or BOP, policy while he was being attacked by a fellow inmate.

The district court found the officers’ actions fell within the discretionary function exception to the FTCA and dismissed Tyree’s complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).

Analysis

The discretionary function exception to the FTCA provides that the government cannot be held liable “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.”

The challenged conduct falls within the scope of this exception if it fulfills a two- pronged test. First, the conduct at issue must involve an element of judgment or choice. Second, if the challenged conduct does involve an element of judgment or choice, the exercise of such judgment must be grounded in considerations of “social, economic, and political policy.”

As an initial matter, the court agrees with the district court’s conclusion with respect to the first prong that the BOP policies Tyree cites either: (1) do not set forth a mandated, nondiscretionary response such that they meet the first prong of the discretionary function exception or (2) are inapplicable to his situation.

But this does not end our inquiry, given that Tyree’s complaint “is susceptible to various readings.” And the court is mindful of these possible readings given Tyree’s pro se status at the time of the drafting of his complaint and through the following proceedings until the instant appeal. Here, the court concludes that at least one of two readings of Tyree’s complaint may give rise to a set of facts that fails to satisfy the second prong of the discretionary function exception.

On the one hand, the alleged delay may have been, as the district court concluded, the result of legitimate policy considerations, such as accounting for other ongoing inmate issues. In such an instance, the exercise of judgment would be of the type the discretionary function exception was designed to protect. And if that were the case, the second prong of the discretionary function exception would be fulfilled, and the government shielded from suit by the exception. On the other hand, “the complaint’s allegations of negligence” in the failure to respond promptly “might also refer to a very different type of negligence.” Because at this stage of the proceedings a liberally construed pro se complaint is susceptible to different readings, the district court erred in assuming that the complaint involved only discretionary functions.

Affirmed in part, vacated in part and remanded with instructions.

Concurrence

Motz, J., concurring in part:

I concur in the majority opinion, except for the conclusion that no BOP policy removes discretion from the BOP officers. The BOP program statement removes discretion from employees in deciding whether to disregard or delay responding to an emergency, and so places this case outside the discretionary function exception. For this reason, I would vacate the entirety of the judgment of the district court.

Tyree v. United States, Appeal No. 18-7392, July 1, 2020. 4th Cir. (per curiam) from EDNC at Raleigh (Boyle). Jana Minich and Raymond Gans for Appellant. Michael Bredenberg for Appellee. VLW 020-2-183. 21 pp.