ALD-091                                                      NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 11-2741
                                  ___________

                             MICHAEL RINALDI,
                                       Appellant

                                        v.

                        UNITED STATES OF AMERICA

                   ____________________________________

                 On Appeal from the United States District Court
                     for the Middle District of Pennsylvania
                          (D.C. Civil No. 09-cv-01700)
                  District Judge: Honorable Sylvia H. Rambo
                  ____________________________________

      Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
      or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                Janaury 26, 2012
         Before: SLOVITER, FISHER AND NYGAARD, Circuit Judges

                        (Opinion filed: February 3, 2012 )
                                   _________

                                   OPINION
                                   _________




PER CURIAM
       Michael Rinaldi, a federal prisoner, appeals from the District Court’s dismissal of

his complaint and denial of his motion for reconsideration. For the reasons that follow,

we will summarily affirm the District Court’s orders. See I.O.P. 10.6.

                                             I.

       Rinaldi filed a complaint in the District Court pursuant to the Federal Tort Claims

Act (“FTCA”), 28 U.S.C. § 2671 et seq. Rinaldi alleged that on September 5, 2008, he

was assaulted by his cellmate in the Special Housing Unit (“SHU”) at the Schuylkill

Federal Correctional Institution, in Minersville, Pennsylvania. As a result of the assault,

Rinaldi suffered a lost tooth and received seven stitches to his lip and chin. Rinaldi stated

that Bureau of Prisons (“BOP”) staff knew that his assailant was violent and mentally

unstable, and that he had a history of assaulting other cellmates. Rinaldi asserted that the

BOP was negligent in failing to separate him from his assailant prior to the assault

because they were aware of his assailant’s violent history.

       The District Court granted the United States’ motion to dismiss, agreeing that

Rinaldi’s claim is barred by the discretionary function exception to the FTCA’s waiver of

sovereign immunity. After the District Court denied Rinaldi’s motion for

reconsideration, he timely appealed to this Court.

       We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary review

over the applicability of the discretionary function exception to the waiver of sovereign

immunity. See Mitchell v. United States, 225 F.3d 361, 362 (3d Cir 2000).


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       The FTCA offers a limited waiver of the federal government’s sovereign

immunity as to negligent acts of government employees acting within the scope of their

employment. 28 U.S.C. § 2671, et seq. Thus, in certain circumstances, prisoners may

invoke the FTCA to seek damages for injuries received while in confinement. United

States v. Muniz, 374 U.S. 150, 153 (1963). However, the FTCA is subject to exceptions,

such as the discretionary function exception. This exception provides that no liability

shall lie for claims “based upon the exercise or performance or the failure to exercise or

perform a discretionary function or duty . . . whether or not the discretion involved be

abused.” See 28 U.S.C. § 2680(a).

       To determine whether the discretionary function exception to the waiver of

immunity applies, a court must determine (1) whether the act involves an element of

judgment or choice, rather than a course of action prescribed by a federal statute,

regulation, or policy; and (2) even if the challenged conduct involves an element of

judgment, whether that judgment is of the kind that the discretionary function exception

was designed to shield. Mitchell v. United States, 225 F.3d at 363.

       The BOP conduct at issue in this case--the alleged failure to protect Rinaldi from

his assailant--is governed by a federal statute which requires the BOP to provide for the

“protection” and “safekeeping” of inmates in its care. See 18 U.S.C. § 4042(a)(2), (3).

As the District Court explained, however, this statute leaves the implementation of these

duties to the discretion of BOP officials. Moreover, there is no federal statute, regulation


                                             3
or policy that requires the BOP to take a particular course of action to ensure an inmate’s

safety from attacks by other inmates.

       Accordingly, we agree with the District Court that the acts of the BOP officials in

this case clearly involved an element of judgment or choice, thereby satisfying the first

prong of the Mitchell analysis. See Cohen v. United States, 151 F.3d 1338, 1342 (11th

Cir. 1998) (explaining that “even if § 4042 imposes on the BOP a general duty of care to

safeguard prisoners, the BOP retains sufficient discretion in the means it may use to

fulfill that duty to trigger the discretionary function exception.”).

       As to the second prong of the applicable test, a judgment as to how best to protect

one prisoner from attack by another “is of the kind that the discretionary function

exception was designed to shield.” Mitchell, 225 F.3d at 363; see, e.g., Bell v. Wolfish,

441 U.S. 520, 547-48 (1979) (holding that prison administrators should be afforded wide-

ranging deference in implementing and executing policies because discretion is needed to

preserve internal discipline and maintain institutional security); Whitley v. Albers, 475

U.S. 312, 321-22 (1986) (prison officials have discretionary power over the safety of the

institutions they operate). Indeed, courts have routinely held that federal prisoners’

FTCA claims for injuries by fellow inmates are barred by the discretionary function

exception. Calderon v. United States, 123 F.3d 947, 950-51 (7th Cir. 1997)

(discretionary function exception applied to FTCA claim for government’s failure to

protect plaintiff from attack by cellmate); Cohen, 151 F.3d at 1340-45 (reversing


                                               4
judgment in favor of prisoner who brought an FTCA action for injuries sustained as the

result of an attack by another inmate).

       In sum, because both prongs of the Mitchell test are satisfied here, we conclude

that the District Court did not err in determining that Rinaldi’s claim is barred by the

discretionary function exception to the FTCA.

       Accordingly, we will summarily affirm the orders of the District Court dismissing

the complaint and denying the motion for reconsideration. See 3d Cir. L.A.R. 27.4; 3d

Cir. I.O.P. 10.6.




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