           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                         2     Bultema v. United States                     No. 02-3490
        ELECTRONIC CITATION: 2004 FED App. 0056P (6th Cir.)
                    File Name: 04a0056p.06                                 Appellant. Marlon A. Primes, ASSISTANT UNITED
                                                                           STATES ATTORNEY, Cleveland, Ohio, for Appellee.
                                                                           ON BRIEF: Mark L. Wakefield, LOWE, EKLUND,
UNITED STATES COURT OF APPEALS                                             WAKEFIELD & MULVIHILL, Cleveland, Ohio, for
                                                                           Appellant. Marlon A. Primes, ASSISTANT UNITED
                  FOR THE SIXTH CIRCUIT                                    STATES ATTORNEY, Cleveland, Ohio, for Appellee.
                    _________________
                                                                                               _________________
 JAMES BULTEMA ,                  X
          Plaintiff-Appellant,     -                                                               OPINION
                                   -                                                           _________________
                                   -  No. 02-3490
           v.                      -                                         ROGERS, Circuit Judge. While sleeping, James Bultema
                                    >                                      fell from the top bunk of his federal prison bed and injured his
                                   ,                                       knee. Bultema had previously been given a form that
 UNITED STATES OF AMERICA , -
          Defendant-Appellee. -                                            required him to receive a bottom bunk, but he did not deliver
                                                                           this form to the prison official in charge of his unit before the
                                 N                                         accident. Bultema sued the United States under the Federal
      Appeal from the United States District Court                         Tort Claims Act, alleging that several acts of prison
       for the Northern District of Ohio at Akron.                         negligence caused his injury. The district court granted
   No. 01-00951—David D. Dowd, Jr., District Judge.                        summary judgment on behalf of the Government. The
                                                                           Government contends that summary judgment was proper
                   Argued: October 31, 2003                                because of the discretionary function exception to liability
                                                                           under the Federal Tort Claims Act, and alternatively, because
             Decided and Filed: February 23, 2004                          comparative negligence on the part of Bultema bars recovery
                                                                           under Ohio law. Because the discretionary function exception
        Before: MOORE and ROGERS, Circuit Judges;                          does not apply to the limited question of whether the prison
              FORESTER, Chief District Judge.*                             was negligent in not giving Bultema the proper number of
                                                                           forms and oral instructions once he received permission to get
                       _________________                                   a bottom bunk, and because there is a material question of
                                                                           fact regarding Bultema’s comparative negligence, we reverse
                            COUNSEL                                        the decision of the district court.
ARGUED: Mark L. Wakefield, LOWE, EKLUND,                                                                Facts
WAKEFIELD & MULVIHILL, Cleveland, Ohio, for
                                                                             After years of selling insurance, Bultema was arrested and
                                                                           charged with bank fraud, to which he subsequently pled
    *
                                                                           guilty. As part of his sentence he was imprisoned, for the first
      The Honorable Karl S. Forester, Chief United States District Judge
for the Eastern District of Kentucky, sitting by designation.

                                   1
No. 02-3490                    Bultema v. United States       3    4       Bultema v. United States                            No. 02-3490

time in his life, to serve a six month sentence at the federal     computer system, and the prisoner would be given two
minimum security prison in Elkton, Ohio.                           copies: one to be given to unit management and the other to
                                                                   be kept by the prisoner for his records. Once an inmate
   At Elkton, Bultema was initially assigned a top bunk within     received a bottom bunk pass, he would be told to alert the
Unit 1-A. The bunk beds at Elkton consist of metal frames          prison unit management that he had received a bottom bunk
with foam-type mattresses and have two levels—a bottom             pass. Usually, the inmate would then quickly take the copy
bunk that is approximately eighteen to twenty-four inches off      to unit management, and a new bunk would be assigned.
the ground and a top bunk that is considerably higher. The
bunks typically have a ladder on one end of the bed or on the        Bultema claims that he only received one copy of the
side of the bunk. The bunks lack rails or guards of any kind,      bottom bunk pass from Hall, the pink copy, and that he put it
and inmates occasionally use “prison tools” to remove the          among his things for safekeeping. 1 He alleges that because
ladders and create makeshift rails. Although the prison staff      no one gave him contrary instructions, he assumed that prison
did not put rails on the beds for fear that they could be          officials would be notified of the change in his status without
removed and used as weapons or as a means of escape, the           any affirmative action on his part, and that he would be
staff did nothing to prevent the switching of the ladders.         changing bunks soon. Since Bultema did not tell unit
                                                                   management about his bottom bunk pass, Janel Fitzgerald, his
  After approximately three weeks in prison, Bultema was           Unit A-1 counselor, who was in charge of bunk changes, was
given a medical examination by the prison’s physician’s            not notified before the accident that she needed to reassign
assistant, Danny Hall. During this examination, Hall issued        Bultema’s bunk.
Bultema an “Idle, Convalescent and Change in Work
Classification Status” form, also known as a “bottom bunk            In the meantime, Fitzgerald was made aware of some
pass.” The bottom bunk pass states: “â no climbing ã               difficulties Bultema was having with his bunk. After many
Please allow bottom bunk (medical) while @ FCI Elkton.”            sleepless nights on his mattress, which had a downward tilt
Apparently, although Bultema had no problem walking or             toward the wall, Bultema asked Fitzgerald about the
playing touch football games, these conditions were given to       possibility of receiving a new mattress. Fitzgerald informed
Bultema because of his past medical history.                       him that there were currently no spare mattresses, but that she
                                                                   would try and get him one. Fitzgerald claims that Bultema
  Bottom bunks are highly sought after at Elkton, and the          told her that he did not wish to switch top bunk beds to
prison keeps a waiting list based on seniority to facilitate the   correct the mattress problem because he did not want to lose
assignments of bottom bunks. However, if an inmate receives        his bunkmate. Bultema denies this assertion.
a bottom bunk pass for medical reasons, he is immediately
assigned a bottom bunk, even if there are no vacant bottom
bunks, because the medical bottom bunk pass takes priority
over those who were assigned bottom bunks from the                     1
                                                                         The Government claims that Bultema was given instructions to give
seniority list.                                                    a copy to Janel Fitzgerald, his unit counselor. The Government base s this
                                                                   allegation on the fact that at the bottom of the pass it states “. . . Yellow
  Typically, the medical staff would complete the pass in          copy — D etail Officer Pink copy — Inma te . . .” According to the
quadruplicate. One copy would be placed in his medical file,       Governm ent this should have alerted Bultema, as a very detail-oriented
one copy would go to records for entry into the prison             ex-insurance agent, that he need ed to notify his unit counselor of his bunk
                                                                   status change.
No. 02-3490                   Bultema v. United States     5    6      Bultema v. United States                    No. 02-3490

  At this point, Bultema, with the help of other inmates,       I. Discretionary Function Exception to Federal Tort Claims
apparently took matters into his own hands, and on April 1,        Act Liability
1998, he switched the mattress on his bunk with that of a
mattress from an apparently empty bunk. That evening,              Negligence in not directing Bultema to give a copy of his
Bultema settled into his new bunk and went to sleep. About      pass to unit management, if proven, would amount to
2:30 a.m., Bultema awoke on the floor after having fallen off   negligence in following a nondiscretionary policy, and that
of his bed. His knee hit the cement floor and was seriously     particular negligence claim is accordingly not protected by
injured.                                                        the discretionary function exception to FTCA liability.
                                                                Therefore, the district court should not have granted summary
   After his release from prison, Bultema filed a personal      judgment to the Government. The Government relies on the
injury claim against the Federal Bureau of Prisons under the    discretionary function exception, which precludes tort
Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq.      liability on the part of the United States for
He alleges that the United States was negligent in a number
of respects. The United States filed a motion for summary           (a) Any claim based upon an act or omission of an
judgment on the basis of the discretionary function exception       employee of the Government, exercising due care, in the
to the FTCA and Bultema’s comparative negligence. The               execution of a statute or regulation, whether or not such
district court granted this motion. See Bultema v. United           statute or regulation be valid, or based upon the exercise
States, 195 F. Supp. 2d 1001 (N.D. Ohio 2002). Bultema              or performance or the failure to exercise or perform a
filed a timely notice of appeal.                                    discretionary function or duty on the part of a federal
                                                                    agency or an employee of the Government, whether or
                        Discussion                                  not the discretion involved be abused.
   This court reviews a lower court’s grant of summary          28 U.S.C. § 2680(a).
judgment de novo. Williams v. Gen. Motors Corp., 187 F.3d
553, 560 (6th Cir. 1999). The evidence should be viewed in         There is a two-step test to determine whether the
the light most favorable to the nonmoving party, and            discretionary function exception is applicable. See United
summary judgment should only be granted where there is no       States v. Gaubert, 499 U.S. 315, 322-23 (1991); Reetz v.
genuine issue of material fact. Id. In a properly supported     United States, 224 F.3d 794, 795-96 (6th Cir. 2000). A court
response to a motion for summary judgment, the nonmoving        first must make a “determination of whether the challenged
party “must show that there is, indeed, a genuine issue for     act or omission violated a mandatory regulation or policy that
trial.” Holloway v. Brush, 220 F.3d 767, 772 (6th Cir. 2000).   allowed no judgment of choice.” Rosebush v. United States,
In considering a motion for summary judgment, “[t]he            119 F.3d 438, 441 (6th Cir. 1997). The court only needs to
judge’s function . . . is limited to determining whether        consider the second step if the action was discretionary under
sufficient evidence has been presented to make the issue a      the first step. Reetz, 224 F.3d at 796. Under the second step,
proper jury question, and not to judge the evidence and make    if the conduct was of the type that Congress intended for the
findings of fact.” 60 Ivy St. Corp. v. Alexander, 822 F.2d      discretionary function exception to include, then the
1432, 1435-36 (6th Cir. 1987).                                  exception is applicable. Id. The intent of Congress was “to
                                                                prevent judicial ‘second guessing’ of legislative and
                                                                administrative decisions grounded in social, economic, and
No. 02-3490                    Bultema v. United States       7    8      Bultema v. United States                       No. 02-3490

political policy.” Rosebush, 119 F.3d at 441 (internal             aids was an exercise of a discretionary function. Indian
quotation omitted).                                                Towing, 350 U.S. at 69. Negligence in maintaining the aid is
                                                                   not a necessary concomitant of the decision to employ such
  Examples of exercises of discretionary functions under this      aids. A fortiori, if a particular act violates a governmental
analysis include a decision to institute a program of producing    policy, the act cannot be protected under the discretionary
and exporting fertilizer, Dalehite v. United States, 346 U.S.      function exception by the fact that the violated policy itself
15, 37-38 (1953); a decision to install a system of coastal        was an exercise of a discretionary function.
navigational aids, Indian Towing Co. v. United States, 350
U.S. 61, 69 (1955); a Federal Aviation Administration                 In order to undertake a proper discretionary function
(“FAA”) policy decision to spot check airplanes rather than        analysis, then, we must first determine the exact conduct at
to inspect them in detail, United States v. S.A. Empresa de        issue. Rosebush, 119 F.3d at 441. In the court below,
Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797,         Bultema not only claimed that the failure to provide Bultema
815-19 (1984); a U.S. Forest Service policy of not placing         with a copy of the pass along with directions on whom to give
protective railings around campground fire pits, Rosebush,         it to, but also appeared to challenge the prison’s policy of not
119 F.3d at 443-44; and a U.S. Forest Service policy of not        having rails on upper bunks and the prison’s policy of relying
marking off-road-vehicle trails that are closed (but rather        on prison inmates to notify unit management of the issuance
marking only those that are open), Reetz, 224 F.3d at 797.         of bunk passes, rather than having the issuer of the pass notify
                                                                   unit management directly. Bultema now properly concedes
   Where a particular government action is a deliberate or         that such claims are barred by the discretionary function
necessary result of a discretionary general policy, such that a    exception. The decision generally not to have bed rails, and
tort suit based on the particular act or omission would amount     the decision to have inmates notify unit management of a
to a challenge to the protected across-the-board policy, then      bunk pass, both involve the type of across-the-board policy-
the discretionary function exception applies as well. Thus,        making judgment that the discretionary function exception
the discretionary function exception protected the United          was meant to leave to federal administrators, in this case
States against suits for the use of a high bagging temperature     prison administrators. As the district court reasoned,
fixed by a discretionary plan to manufacture fertilizer,
Dalehite, 346 U.S. at 38-41, for the failure of the FAA to             the policy-makers apparently decided that the quickest
inspect a particular aircraft because of the FAA’s spot-check          and most efficient method for communicating a
policy, Varig Airlines, 467 U.S. at 819-20, and for a particular       medically-necessary bottom bunk assignment to the unit
failure of the Forest Service to mark an off-road-vehicle trail        officer was to utilize the inmate himself. . . . In fact, this
as closed, Reetz, 224 F.3d at 795.                                     policy has intuitive appeal especially where, as here, it
                                                                       deals with something that every inmate apparently wants,
  But where a particular government action is not a necessary          i.e., a bottom bunk.
result of such a general policy, the act does not necessarily
amount to an exercise of a discretionary function merely           Bultema v. United States, 195 F. Supp. 2d 1001, 1008 (N.D.
because carrying out the general policy provided the               Ohio 2002). The district court also reasoned properly that
opportunity for the negligent act. Thus the United States can
be liable for the Coast Guard’s negligent maintenance of a             with respect to [the] claim that the bunk beds should
navigational aid, even though the decision to employ such              have had ladders and/or guardrails, this, too, is a
No. 02-3490                   Bultema v. United States         9   10       Bultema v. United States                             No. 02-3490

  discretionary call to be made by prison administrators.          Berkovitz v. United States, 486 U.S. 531, 536 (1988). The
  There were valid safety and security concerns relating to        allegedly negligent behavior of the prison’s employees in
  the beds at issue. Guard rails, and sometimes ladders, are       failing to instruct Bultema would not be discretionary under
  not included because of the danger that they can be              this analysis. Therefore, the discretionary function exception
  broken off and used as weapons or escape devices.                would be inapplicable as to the failure of the prison to notify
                                                                   Bultema of his responsibility to tell unit management and the
Id. In short, these policies are akin to the spot-check policy     failure to give him two copies of the pass.
in Varig Airlines and the no-campfire-rail policy in Rosebush.
As Bultema now concedes, the district court properly granted          Moreover, under the second step of a discretionary function
summary judgment on these claims as barred by the                  analysis, even if the prison employees retained some
discretionary function exception.                                  discretion in carrying out the bunk-pass policy, that discretion
                                                                   was not of the type that the discretionary function exception
   Bultema’s remaining claim, however, is that the prison was      was intended to protect. The alleged failure to direct Bultema
negligent in carrying out its bunk-pass-notification policy.       to give a copy of his pass to unit management was a particular
The allegedly negligent act or omission is not a necessary         act or omission that was not required by the across-the-board
concomitant of the prison’s notification policy, but rather is     bunk-bed policy, and indeed it was arguably in violation of
allegedly in contravention with, or at least not required by,      that policy. It was therefore not protected by the discretionary
that policy. Bultema claims that the prison was negligent in       function exception. The failure is instead analogous to the
not informing him of the process by which he would obtain          Coast Guard’s failure to maintain a particular navigational aid
his bottom bunk after receiving a pass. In particular, the         in Indian Towing.2 The discretionary function exception
prison allegedly failed to provide him with verbal                 therefore did not warrant summary judgment for this limited
instructions along with two copies of the bottom bunk pass.        claim.
So limited, Bultema’s claim is not barred by the discretionary
function exception.                                                II. Comparative Fault
   First, the discretionary function exception arguably does         The United States argues that summary judgment should be
not apply to Bultema’s limited claim because Elkton’s policy       affirmed on the alternative ground of Bultema’s comparative
for handling bottom bunk passes did not give the medical
staff or the unit management any discretion, but rather
dictated their actions. As the Supreme Court has explained,             2
                                                                          Limiting Bultema’s claim to o ne for failure to direct him ad equately
                                                                   in the processing of his bu nk pass may o f course make it mo re difficult
  the discretionary function exception will not apply when         for him to recover under O hio tort law. Bultema must demonstrate not
  a federal statute, regulation, or policy specifically            only that the alleged omission in failing to direct him actually occurred,
  prescribes a course of action for an employee to follow.         that it violated the standard of care, and that it was the cause in fact of his
  In this event, the employee has no rightful option but to        injury, but also that his physical injury was a reasonably foreseeable result
                                                                   of the limited allegation of negligence perm itted by the FT CA in this case.
  adhere to the directive. And if the employee’s conduct           See Strother v. Hutchinson, 423 N.E .2d 4 67, 4 69-7 1 (O hio 198 1); Bohme,
  cannot appropriately be the product of judgment or               Inc. v. Sprint Int’l Communications Corp., 686 N.E.2d 300, 303-04 (Ohio
  choice, then there is no discretion in the conduct for the       Ct. App. 199 6). Our holding that the discretionary function exception
  discretionary function exception to protect.                     does not apply has no bearing on whether or not Bultem a can meet these
                                                                   requirements.
No. 02-3490                   Bultema v. United States     11    12   Bultema v. United States                     No. 02-3490

fault. Bultema has, however, presented enough evidence to        management. Because there is contradictory evidence as to
overcome a motion for summary judgment on the basis of           Bultema’s negligence and because it is the fact-finder’s duty
comparative negligence. Ohio’s comparative negligence law        at trial to weigh the evidence and assess the credibility of the
prohibits plaintiffs from recovering if the plaintiff’s own      witnesses, it was not appropriate to grant summary judgment
negligence outweighs that of the defendants. In other words,     solely on the basis of comparative negligence in this case.
“[i]n certain cases, summary judgment is appropriate if the
Plaintiff’s own negligence, as a matter of law, outweighs any                             Conclusion
negligence of the Defendant.” Cervelli v. Thompson/Center
Arms, 183 F. Supp. 2d 1032, 1043 (S.D. Ohio 2002). If              The judgment of the district court is REVERSED and the
reasonable minds can differ as to a plaintiff’s contributory     case is remanded for further consideration.
negligence, then summary judgment is inappropriate. See
Blevins v. Doe, 279 F. Supp. 2d 922, 931 (N.D. Ohio 2003).
  The Government argues that reasonable minds could only
decide that Bultema’s injuries were caused by his own
negligence because he was a detail-oriented person, believed
that Fitzgerald was friendly and approachable, and failed to
notify her of his bottom bunk pass. Further the Government
contends that Bultema took it upon himself to switch
mattresses instead of requesting a bottom bunk because he did
not want to lose his bunkmate. It is true that Bultema did not
notify unit management of his bottom bunk pass, and this
failure was certainly a cause of his injury.
   However, Bultema has presented some evidence, if viewed
in the light most favorable to him, that indicates that he was
not aware of the policy because of negligence on the part of
the prison. For example, Bultema claims that he was never
informed of the policies of the prison in regard to the bottom
bunk pass, and that he wanted to avoid becoming a
“troublemaker.” In addition, although the Government states
that he received verbal instructions as to what to do with his
bottom bunk pass, Hall, in his deposition, asserts that he has
“no recollection” of giving Bultema duplicate copies of the
bottom bunk pass. Bultema moreover states that he was only
given one copy of the bottom bunk pass, and that he received
no verbal instructions. Accordingly, Bultema has provided an
explanation that the fact-finder might believe for Bultema’s
failure to deliver a copy of his bottom bunk pass to unit
