                                  United States Court of Appeals,

                                            Fifth Circuit.

                                            No. 92-1848

                                        Summary Calendar.

                          Fred Garcia SANDOVAL, Plaintiff-Appellant,

                                                  v.

                       UNITED STATES of America, Defendant-Appellee.

                                           Jan. 13, 1993.

Appeal from the United States District Court for the Northern District of Texas.

Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.

       DeMOSS, Circuit Judge:

                                              FACTS:1

       Fred Garcia Sandoval, plaintiff, was serving a 78 month sentence at the Fort Worth Federal

Correctional Institution when he was released into the custody of the United States Marshal for the

Western District of Texas by writ of habeas corpus ad testificandum. Sandoval was transferred to

San Antonio for the purpose of giving testimony in federal court and was housed in the Central Texas

Violators Facility (CTVF) which was run by the Wackenhut Corporation.

       On June 4, 1990, Sandoval was in CTVF when a Wackenhut employee, guard Tommicine

Stevens, intentionally began antagonizing inmate Bobby Salazar by repeatedly increasing the volume

of the television set while Salazar was attempting to sleep. Salazar became infuriated by this and

attacked Sandoval thinking that it was Sandoval rather than Stevens adjusting the television. As a

result of this attack, Sandoval's nose, cheek bone and front teeth were broken and his ribs were

bruised.

       Sandoval, acting pro se, filed suit in the United States District Court for the northern District

of Texas under the Federal Tort Claims Act (FTCA) based on the above incident seeking


   1
    The facts surrounding Sandoval's injury were set out in his original complaint as well as in his
brief on appeal. Both versions are essentially the same.
$10,000,000 in damages from the federal government. Sandoval was given leave to proceed in forma

pauperis (IFP). The magistrate judge assigned to this matter issued her recommendation that the case

be dismissed as frivolous for two reasons. First, she stated that Sandoval's injuries were the result

of an assault and battery at the hands at someone other than an investigative or law enforcement

officer of the United States Government and were excluded from coverage under the FTCA. Second,

she held that a cause of action under the FTCA cannot be maintained against the Government for the

actions of Wackenhut employees because Wackenhut Corporation was a contractor to the

Government for the temporary housing of federal prisoners. Sandoval filed objections to this

recommendation. After conducting an independent review of the case, the district court adopted the

findings and conclusions of the magistrate judge as those of the court. Sandoval timely filed a notice

of appeal from the judgment of the district court.

       Sandoval alleges that he was injured in a beating administered by a fellow inmate at CTVF

caused by the unprofessional conduct of a guard at that facility and the negligence of the United

States Marshal for placing him in a dangerous environment.2 CTVF was operated by Wackenhut

Corporation as a contractor to the Government and the guard was an employee of Wackenhut.

Sandoval has cast his claim in terms of a breach of a duty to safely house inmates.

        In making her recommendation, the magistrate judge relied on the holding of U.S. v. Shearer,

473 U.S. 52, 54-55, 105 S.Ct. 3039, 3041, 87 L.Ed.2d 38 (1985) that "[t]he Federal Tort Claims

Act's waiver of sovereign immunity does not apply to "[a]ny claim arising out of assault [or] battery,'

28 U.S.C. § 2680(h), and it is clear that respondent's claim arises out of [a] battery." While this may

be true for the intentional acts of Government employees, this exclusion does not apply to the

intentional torts of others. See, Sheridan v. U.S., 487 U.S. 392, 400-03, 108 S.Ct. 2449, 2454-56,

101 L.Ed.2d 352 (1988). As the intentional tort that injured Sandoval was not perpetrated by an

employee of the Government, the exclusion of § 2680(h) is not relevant to the case sub judice.

Therefore, the use of this exclusion to justify a § 1915(d) dismissal was improper.

   2
     As proof of this negligence Sandoval asserts that he was housed with dangerous prisoners
that later accomplished a violent escape from the jail. Sandoval has not alleged any actual injury
resulting from this housing arrangement.
        Sandoval's claim against the Government is that the United States Marshal was negligent in

placing him in CTVF where he was exposed to the improper conduct of guards and other prisoners.

Specifically, Sandoval claims that the U.S. Marshal breached the duty to provide for his safety while

he was incarcerated. In Shearer, the Supreme Court noted "that the Government may be held liable

for negligently failing to prevent the intentional torts of a non-employee under its supervision." 473

U.S. at 56, 105 S.Ct. at 3042. In Logue v. U.S., 412 U.S. 521, 530-33, 93 S.Ct. 2215, 2220-22, 37

L.Ed.2d 121 (1973), the Supreme Court held that the Government was not liable for the negligent

acts of the employees of an independent contractor running a jail, but did not rule out liability based

on the negligent acts of the Go vernment 's employees in placing the inmate into the care of the

contractor. While Sandoval may have a heavy burden in being able to prove negligence on the part

of the U.S. Marshal, he has alleged sufficient facts to make his claim against the Government under

the FTCA nonfrivolous. See Ancar v. Sara Plasma, Inc., 964 F.2d 465, 468 (5th Cir.1992). The

district court incorrectly dismissed it as frivolous under 28 U.S.C. § 1915(d). As such, the dismissal

is VACATED and the case REMANDED for appropriate consideration by the district court of the

Government's liability, if any, under the FTCA for the alleged negligence of the U.S. Marshal.
