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Bishop v. United States

United States District Court, D. Hawaii

April 13, 2017

BENJAMIN BISHOP, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS, ECF NO. 26

          J. Michael Seabright Chief United States District Judge

         I. INTRODUCTION

         Plaintiff Benjamin Bishop (“Plaintiff” or “Bishop”) alleges that fellow-inmate Michael Tanouye (“Tanouye”) attacked and beat him in his cell at the Honolulu Federal Detention Center (“FDC”) soon after Tanouye was admitted to the FDC. Plaintiff's First Amended Complaint (“FAC”), filed under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (“FTCA”), claims that Defendant United States of America (“Defendant” or “the government”) negligently screened Tanouye during his admission, improperly placing a dangerous or suicidal inmate with Plaintiff and causing Plaintiff's injuries. ECF No. 26.

         The government moves under Federal Rule of Civil Procedure 12(b)(1) to dismiss the FAC, arguing that Plaintiff's claims are barred by 28 U.S.C. § 2680(a), the discretionary function exception to the FTCA.[1] Based on the following, Defendant's Motion is GRANTED.

         II. BACKGROUND

         A. Factual Background

         Plaintiff filed the November 21, 2016 FAC, ECF No. 24, pursuant to leave granted by this court after the court dismissed the original complaint. ECF No. 23. Addressing an FTCA pleading requirement, the FAC added detailed jurisdictional allegations regarding Bureau of Prisons (“BOP”) policies or regulations which Plaintiff contends create mandatory, non-discretionary, duties as necessary to invoke the FTCA. See, e.g., Prescott v. United States, 973 F.2d 696, 701 (9th Cir. 1992) (“Only after a plaintiff has successfully invoked jurisdiction by a pleading that facially alleges matters not excepted by § 2680 does the burden fall on the government to prove the applicability of a specific provision of § 2680.”) (citation omitted).

         To that end, the FAC alleges the following relevant facts, which the court generally assumes as true for purposes of a motion to dismiss (except where such factual allegations are specifically challenged in a motion attacking subject-matter jurisdiction). See, e.g., Young v. United States, 769 F.3d 1047, 1052 (9th Cir. 2014) (reiterating in a discretionary-function exemption context that courts “generally accept as true the factual allegations of Plaintiffs' complaint”); Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (“In resolving a factual attack on jurisdiction [under Rule 12(b)(1)] . . . [t]he court need not presume the truthfulness of the plaintiff's allegations.”) (citations omitted).

         1. Tanouye is Arrested and Placed in Bishop's Cell

         On October 12, 2014, Bishop was an inmate at the FDC. FAC ¶ 10, ECF No. 24.[2] Allegedly, “[t]hat evening[, ] a new prisoner, [a] very stocky and strong 29-year old man, Michael Tanouye, was brought into Mr. Bishop's cell and Mr. Bishop was told to watch this prisoner as the prisoner was on suicide watch.” Id. ¶ 11.[3] Bishop did not know that Tanouye “was having serious mental problems and had attempted to rape a woman on an airplane flight to Japan.” Id. ¶ 12. “FBI agents [had] arrested Michael Tanouye for interfering with a flight crew and aggravated sexual assault aboard an aircraft.” Id. ¶ 14.

         While en route to Japan, Tanouye “forced his way into a bathroom and sexually assaulted a woman, according to an FBI affidavit.” Id. ¶ 15. “Flight attendants and passengers told the FBI that a male passenger was injured while struggling to subdue Tanouye.” Id. ¶ 21. Prior to that, “Tanouye was heard shouting something incomprehensible and his mother told a flight attendant that he suffers from depression and is on medication.” Id. ¶ 22. “After the incident, Tanouye's mother gave him a dose of his psychiatric medicine and he fell asleep.” Id. ¶ 24.

         The airplane returned to Honolulu after the caption heard that it took three passengers to keep Tanouye calm. Id. ¶ 25. “Hawaii sheriff deputies took Mr. Tanouye off the plane when it landed in Honolulu and FBI agents arrested him and brought him to the FDC, where he was held pending arraignment.” Id. ¶ 26. According to the FAC, “both the sheriff's department and FBI were on notice that Mr. Tanouye was seriously dangerous and deranged.” Id. ¶ 27. A Public Health Service psychiatrist later explained to Bishop that Tanouye “was a paranoid schizophrenic.” Id. ¶ 60.

         2. BOP “Program Statements”

         The FAC identifies two sets of BOP “program statements” that Plaintiff alleges set forth relevant mandatory duties regarding (1) intake screening of newly-admitted inmates; and (2) psychiatric and/or medical screening, and suicide prevention.[4]

         a. The “Intake-Screening” Program Statement

         First, the FAC emphasizes portions of BOP Program Statement P5290.15, regarding “Intake Screening.” Id. ¶ 30 (“Statement P5290.15”). Statement P5290.15 is based on 28 C.F.R. § 522.21, which provides:

(a) Except for such camps and other satellite facilities where segregating a newly arrived inmate in detention is not feasible, the Warden shall ensure that a newly arrived inmate is cleared by the Medical Department and provided a social interview by staff before assignment to the general population.
(1) Immediately upon an inmate's arrival, staff shall interview the inmate to determine if there are non-medical reasons for housing the inmate away from the general population. Staff shall evaluate both the general physical appearance and emotional condition of the inmate.
(2) Within 24 hours after an inmate's arrival, medical staff shall medically screen the inmate in compliance with Bureau of Prisons' medical procedures to determine if there are medical reasons for housing the inmate away from the general population or for restricting temporary work assignments.
(3) Staff shall place recorded results of the intake medical screening and the social interview in the inmate's central file.

Id. (emphases added). These regulatory provisions of § 522.21 are included within Statement P5290.15.

         In accordance with that regulation, Statement P5290.15 provides that “before placing [an] inmate in the institution's general population, staff shall ensure that health, safety, and security standards delineated in this Program Statement are met. Social and medical screening interviews are required to meet these standards.” Statement P5290.15 ¶ 1, ECF No. 29-2. It has as its stated objective that “[s]ocial and medical screening interviews will be conducted on all inmates prior to their placement in general population.” Id. ¶ 3.

         Statement P5290.15 includes several potentially applicable provisions. Among these are:

Staff shall observe the physical appearance of the inmate and interview each inmate prior to placement in general population.
If this is not possible, inmates are to be kept in detention until completion of the medical clearance and social interview. Each institution shall develop procedures for processing commitments after regular working hours.
At camps and other satellite facilities, segregating a newly arrived inmate in detention is often not feasible; however, the Warden shall ensure that the inmate is cleared by the Health Services Department and provided a social interview by staff consistent with the requirements of this Program Statement.

Id. ¶ 7.

The social interview is to be conducted in private (no other inmates in area) by a Unit Manager, Correctional Counselor, Case Manager, or other staff the Warden designates who have been trained in intake screening. The interviewer conducting the social interview must have completed successfully the CIM Certification Program prior to conducting the interview.
• The interviewer shall also review SENTRY information and the Inmate Central File or Presentence Investigation Report (PSI), if available, and make a decision whether the inmate is suitable for placement in general population.
During the social intake screening process, the interviewer shall review the PSI and the Inmate Central File for any documentation indicating the inmate has a history of sexually aggressive behavior or has recently been the victim of a sexual assault.
• In such cases, the interviewer shall immediately forward a copy of the Intake Screening Form and any other comments to Psychology Services for appropriate follow-up and or assessment.
. . . .
The intake screening procedures identified in this Program Statement may be modified at the Warden's discretion for pretrial short-term (less than 48 hours) inmates and court returns.
• Ordinarily, modified intake screening procedures would only be appropriate at Metropolitan Correctional Centers, Metropolitan Detention Centers or other institutions with a primary mission of providing pretrial confinement.
Staff shall place particular emphasis on the Central Inmate Monitoring status of the holdover, since, ordinarily, an inmate may not be transported with or confined with inmates from whom he or she is to be separated.
To ensure that separatees are not housed together, staff shall access the newly received inmate's SENTRY-generated Intake Screening form and thoroughly review the CIM Clearance and Separatee Data to identify any separatees currently housed in the institution. Staff may also cross-check the names of separates with an alphabetical list of all inmates in the institution.

Id.

         b. Psychiatric Screening and Suicide Prevention Program Statements

         The FAC also sets forth intake-related provisions in two other program statements -- Program Statement P6340.01, entitled “Psychiatric Services” (“Statement P6340.1”) and Program Statement P5324.08, entitled “Suicide Prevention Program” (“Statement P5324.08”). In particular, paragraph 9a of Statement P6340.1 has a section regarding “Intake Screening” that provides:

a. Intake Screening. Staff performing intake screening will assess and make appropriate referrals to a mental health professional when an inmate:
• Has a mental health designation;
• Exhibits signs or symptoms consistent with a possible mental disorder; or
• Is on medication for treatment of a mental illness or disorder.
Screening will be of sufficient detail to determine appropriate housing for the inmate until a thorough mental ...

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