Prisoner litigation against public prisons: how many ways can you lose?

February 18, 2014

This is the second post in a series on The Modest Effect of Minneci v. Pollard on Inmate Litigants, a recent paper of mine that appeared in the Akron Law Review. It was the keynote article in a symposium called Inside America’s Criminal Justice System: The Supreme Court on the Rights of the Accused and the Incarcerated.

In yesterday’s post, I introduced the recent Minneci v. Pollard (2012) case, where the Supreme Court limited the civil-rights actions called Bivens actions — for prisoners in federal private prisons. Federal public prisoners can still sue under Bivens, and state prisoners (whether public or private) can sue under § 1983, which is more generous than Bivens. Why do federal private prisoners alone get ill-treated by the Supreme Court in this way? I argue, though, that because of the availability of alternate remedies, Minneci is likely to be less harmful than one might fear.

Today, I’ll discuss the many roadblocks to successfully suing your prison on a tort theory if you’re in a public prison. Tomorrow, I’ll discuss how many of these roadblocks fall away if you’re in a private prison. We’ll start with suing federal prisons in tort and move on below to suing state prisons.

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Suing Federal Prisons

Suing public prisons on a tort theory is difficult, primarily due to sovereign immunity.

The federal government has partially waived its sovereign immunity in the Federal Tort Claims Act (FTCA), which makes the federal government liable for tort claims “in the same manner and to the same extent as a private individual under like circumstances,” incorporating the law of the place where the allegedly wrongful act occurred. The FTCA gives federal district courts exclusive jurisdiction over tort suits against federal employees acting within the scope of their employment. Once the Attorney General certifies that the employee was acting within the scope of his employment, the claim (if brought in a state court) is removed to a federal district court, and the United States is substituted as the defendant.

So far, so good for the tort claimant. Indeed, in United States v. Muniz (1963), the Supreme Court explicitly, and unanimously, held that the FTCA was available to federal prisoners. But any prison-based lawsuit against the federal government is likely to run into a few serious problems, chief among which are exceptions to the FTCA’s waiver of sovereign immunity—that is, no-liability (and, indeed, no-jurisdiction) rules. These are features of the FTCA framework according to the Muniz Court, statutory protections for the government that prevent prisoner suits from “seriously handicap[ping] efficient government operations.” I’ll mention three of these exceptions here: the detained property exception, the discretionary function exception, and the intentional torts exception.

First, the FTCA doesn’t waive sovereign immunity if the claim arises “in respect of . . . the detention of . . . property by . . . any . . . law enforcement officer.” The term “law enforcement officer” includes Bureau of Prisons (BOP) officers and the exception is interpreted broadly to include both negligent and intentional conduct. So, if, on being transferred from one federal prison to another, you find, as did the luckless Abdus-Shahid M.S. Ali, that the BOP has somehow misplaced your Qur’an and prayer rug, you’re out of luck.

Second, there’s the FTCA exception for claims “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”; sovereign immunity is retained even if the discretion is abused. This exception is limited to acts where some discretion is permitted (i.e., non-ministerial acts) and where the type of decision is “susceptible to policy analysis.”

Take, for instance, the case of Faustino Calderon, a federal prison inmate in Oxford, Wisconsin who was attacked by fellow inmate Luis Perez for informing on one of Perez’s relatives. Though Calderon had told four BOP officials of Perez’s threats, no one at the prison took any steps to protect him. But Calderon lost because the BOP’s decision not to segregate Calderon and Perez was based on a consideration of various factors listed in BOP regulations, “balancing the need to provide inmate security with the rights of the inmates to circulate and socialize within the prison”; and so, Calderon lost his claim under the discretionary function exception. Obviously, whether the BOP had considered the factors correctly or negligently, or whether the factors were even correct, played no role in the resolution of the case.

The discretionary function can even preclude liability where it would otherwise be explicitly granted, as where a law enforcement officer commits an intentional tort like battery. What if a battery by a law enforcement officer is also the result of an exercise of discretion? Does the law enforcement proviso to the assault-and-battery exception govern (in which case we might have liability, depending on the circuit), or is liability foreclosed by the discretionary function exemption? Here, too, the circuits differ: in the Fifth and Eleventh Circuits, the proviso governs and liability can attach, while five other circuits—the Second, Third, Fourth, Ninth, and D.C. Circuits—have gone the other way.

Finally, the FTCA provides an additional handful of procedural hurdles. For instance, plaintiffs can’t get a jury trial, nor can they get pre-judgment interest or punitive damages.

Suing State Prisons

The FTCA is a waiver of the federal government’s sovereign immunity, so naturally it applies only to tort suits against the federal government or its employees or agencies. If, as a state inmate, you want to bring a tort suit against state prison employees, a state prison, or a state government, the sovereign immunity of the United States doesn’t come into play and so the foregoing FTCA-based limitations are irrelevant. State sovereign immunity, though, is as great a bar here as federal immunity is for federal inmates. In fact, “[a]s a general matter, state waivers of immunity are narrower than the federal government’s.”

Perhaps most harmful for the prisoner tort plaintiff, the FTCA’s discretionary function exception has an analogue in state immunity doctrines for discretionary conduct. Some states provide for a discretionary function exception by statute; others do so by judicial decision. Washington, for instance, alone among the states, makes governmental defendants “liable in tort on the same terms as private tortfeasors,” but even there the Washington Supreme Court has read a discretionary exception into the statute. The language from the Washington decision captures the sort of considerations involved:

(1)  Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective?

(2)  Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective?

(3)  Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved?

(4)  Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision?

If these preliminary questions can be clearly and unequivocally answered in the affirmative, then the challenged act, omission, or decision can, with a reasonable degree of assurance, be classified as a discretionary governmental process and nontortious, regardless of its unwisdom.

The Washington Supreme Court later clarified that, to benefit from the discretionary exemption, the state must show that an actual, conscious balancing of risks actually took place. Moreover, just as in FTCA law, particular instances of carrying out a discretionary policy may be held to be ministerial and therefore not immune from liability—the doctrine is often called the “planning-operational test,” indicating that (discretionary) planning decisions are generally immune from liability while (non-discretionary) operational decisions aren’t. For instance, when Florida prisoner Thomas Dunagan was attacked by a fellow inmate who strangled him into unconsciousness and drove ballpoint pens into his eyes, a county sheriff was held liable for not following policies regarding opening and closing of cell doors—even if there might have been no liability for failing to adopt such a policy in the first place.

Still—again, just as in FTCA law—this discretionary doctrine can bar recovery for many prisoner plaintiffs. Thus, when an Indiana juvenile inmate was sexually assaulted by other juvenile inmates and sued the county for not allocating sufficient resources to security, it was unclear whether the county that ran the juvenile detention center had actually engaged in a policy analysis in deciding on resource allocation. What was clear was that if further factual development revealed that a policy analysis had been done, the county would be immune from liability.

In addition, statutes in many states further limit prisoner tort plaintiffs’ prospects. Every state is different and has its own exclusions, so let me provide a small, somewhat arbitrary sample of such laws, some of which relate to sovereign immunity (the immunity of the state), some of which relate to official immunity (the personal immunity of the employee), and some of which relate to both:

  • In California, with some exceptions, “neither a public entity nor a public employee is liable for failure to provide a prison, jail or penal or correctional facility or, if such facility is provided, for failure to provide sufficient equipment, personnel or facilities therein.” Similar provisions appear in the laws of several states; Mississippi law is barely more generous, requiring only that “reasonable use of available appropriations ha[ve] been made to provide such personnel or facilities.”
  • Oklahoma goes beyond California and also excludes governmental liability arising out of the “operation or maintenance” of prisons, jails, or juvenile facilities; West Virginia is similar. Ohio—after having generally immunized political subdivisions—then specifically makes them liable for injury “caused by the negligence of their employees and that occurs within the grounds of, and is due to physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function”; but specifically excluded from this extension of liability are jails and other detention facilities.
  • Utah simply states that immunity of governmental entities is not waived if the injury arises out of “the incarceration of any person in any state prison, county or city jail, or other place of legal confinement”; New York has a similar statute covering employees; Mississippi has a statute covering both. South Carolina immunizes governmental entities in a similarly blanket way, though it makes an exception for gross negligence.
  • Arizona excludes governmental and employee liability for prisoner-on-prisoner violence, as long as there was no intentional or grossly negligent conduct by the state employee; California also immunizes public entities (though not public employees) for such violence. Several states also exclude liability for injuries caused by escaped or escaping prisoners.
  • Illinois specifically excludes both governmental and employee liability “for injury proximately caused by the failure of the employee to furnish or obtain medical care,” though it does impose liability on an employee who, “acting within the scope of his employment, knows from his observation of conditions that the prisoner is in need of immediate medical care and, through willful and wanton conduct, fails to take reasonable action to summon medical care.”

Lawrence Rosenthal summarizes: “thirty-three states recognize discretionary-function immunity, twenty-three recognize immunity for injuries caused by reliance on statutes or other enactments, . . . seventeen immunize specified intentional torts of public employees, and forty states confer immunity from punitive damages.” “In addition, forty-two states limit the damages recoverable from a governmental defendant or a public employee.” Of course, all these numbers are below fifty, which means that some other states don’t have such immunity; but the fact remains that in many states, whether by common law or by statute, a state inmate suing his prison may be in just as bad a position as his federal counterpart.

In tomorrow’s post, I’ll shift gears and look at what it’s like to sue private prisons. It turns out that many of these limitations on suing public prisons are entirely absent when it comes to suing private prisons.

Sasha Volokh lives in Atlanta with his wife and three kids, and is an associate professor at Emory Law School. He has written numerous articles and commentaries on law and economics, privatization, antitrust, prisons, constitutional law, regulation, torts, and legal history.
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