               IN THE SUPREME COURT OF IOWA
                                  No. 09–0663

                          Filed August 12, 2011


KEVIN WALKER,

      Appellee,

vs.

STATE OF IOWA,

      Appellant.



      Appeal from the Iowa District Court for Page County, Timothy

O’Grady, Judge.



      The State appeals from an adverse ruling on its motion for

summary judgment. AFFIRMED AND CASE REMANDED.



      Thomas J. Miller, Attorney General, and Forrest Guddall and

Anne E. Updegraff, Assistant Attorneys General, for appellant.



      Nicholas W. Platt and Gregory T. Racette of Hopkins & Huebner,

P.C., Des Moines, for appellee.
                                           2

WIGGINS, Justice.

       While an inmate at the Clarinda Correctional Facility (CCF), the

plaintiff, Kevin Walker, was assaulted by another inmate and seriously

injured.   Walker brought a tort claim against the State, a correctional

officer, and two activity specialists, claiming they negligently failed to

ensure his safety. The State sought summary judgment based upon the

discretionary function and intentional tort exceptions under Iowa Code

section 669.14 (2005). The district court denied the State’s motion, and

the State filed an application for interlocutory appeal, which we granted.

We now affirm the decision of the district court denying the State’s

motion for summary judgment.

       I. Background Facts and Prior Proceedings.

       The State acknowledges that some of the underlying facts in the

case are disputed, but it claims that it is entitled to summary judgment

as a matter of law.         A reasonable fact finder viewing the summary

judgment record in the light most favorable to the plaintiff could find the

following facts.

       CCF is a medium-security correctional prison of the Iowa

Department of Corrections (IDOC). On January 8, 2005, Kevin Walker,

an inmate at CCF, had a confrontation with inmate Darrell Humphrey,

during the breakfast turn out. 1           According to Walker, Humphrey, a

jailhouse lawyer, approached another inmate, Willie Evans, who was

involved in challenging a rules violation, and offered his services for a

small fee. When Walker advised Evans that he could handle the matter

on his own, Humphrey became angry with Walker and threatened to

assault him.        Evans then became angry with Humphrey and an

       1“Turn  out” means designated times for inmates to move from their cells or other
locations to another in the institution such as the breakfast room or the gym.
                                    3

argument between the two ensued.        This argument continued as the

group made its way through the breakfast line.

      After going through the line, Humphrey sat at a different table from

Walker, Evans, and another inmate, Edward Willingham.         As they ate

their breakfast, Evans and Humphrey continued to argue, shouting and

threatening each other from their respective tables. According to Walker,

the argument was louder than any other conversation in the room

because the inmates had stopped talking and were listening to the

argument. Walker did not report the threats, but asserts Correctional

Officer Thomas Walston, who was staffing the breakfast turn out, could

hear the argument, including the threats of assault.      Officer Walston

claims he could not hear the specifics of the conversation.     However,

after Humphrey left the unit, Officer Walston talked to the remaining

inmates involved in the argument and asked them what the problem was

and was told everything was fine.

      A short time later, Humphrey returned to the unit with David

Barnett. Barnett was in a different unit, and it was a rules violation for

him to return with Humphrey.        Evans and Willingham continued to

argue with Barnett and Humphrey, with some pushing and shoving

going on. Barnett indicated the argument would be settled at the next

turn out, the exercise turn out. He indicated they could fight in the gym

because the yard was too cold that day. Walker alleges Officer Walston

overheard these statements.

      At some point, Officer Walston approached the group and

instructed Barnett to return to his unit. He did not, however, instruct

Evans, who was on cell restriction, to return to his cell. When Barnett

did not leave immediately, Officer Walston escorted him out of the unit
                                        4

during which time Barnett made comments about settling the argument

at the next turn out.

      During the exercise turn out, Walker went to the gym and played

basketball with other inmates.        On the other side of the gym, Evans,

Humphrey, and Barnett were fighting in a blind spot that could not be

seen from the office in the gym. 2          When the fight was over, Barnett

walked over to Walker, and stated something to the effect, “[T]his is what

happens when you shoot your mouth off.” Humphrey then approached

Walker and assaulted him.         The assault knocked Walker unconscious

and broke his jaw.

      At the time of the exercise turn out, two activity specialists, Noel

Bogdanski and Richard Stipe, were on duty in the gym. They did not see

the fight involving Evans, Barnett, and Humphrey, or the assault on

Walker.    Bogdanski was in the office of the gym either handing out

equipment or filling out paperwork. Stipe was standing in the door of the

gym as the inmates entered and could not see the areas where the two

incidents occurred. Both Bogdanski and Stipe were aware of the blind

spot in the gym, but did not monitor the area. Officer Walston filled out

a disciplinary report regarding the breakfast incident, but not until after

Walker was assaulted.

      On August 3, 2006, Walker filed a tort claim, pursuant to Iowa

Code chapter 669, against the State and the three correctional staff

members, claiming injury and damages due to the defendants’ negligence

in failing to exercise reasonable care to protect Walker from a violent

attack by another prisoner.        On February 6, 2007, the State Appeal

Board denied Walker’s claim. Thereafter, Walker filed this petition.

      2Officer  Walston allowed inmate Evans to attend the turn out, even though he
was on cell restriction and was not supposed to be able to go to the gym.
                                     5

      In his petition, Walker contends that (1) Bogdanski and Stipe were

negligent in failing to properly supervise the exercise turn out, (2) Officer

Walston was negligent for failing to alert Bogdanski and Stipe about the

morning confrontations and the threats made about the fight, (3) all of

the defendants were negligent in failing to ensure the safety of Walker in

light of the dangerous situation that existed in the gym at the time

Walker was injured, and (4) all the defendants were negligent for allowing

a dangerous condition to exist in the gym.         Pursuant to Iowa Code

section 669.5(2)(a), the district court ordered the State substituted for

the individually named defendants Walston, Bogdanski, and Stipe. See

Iowa Code § 669.5(2)(a) (2007) (substituting the state for defendant

where defendant in a suit was an employee of the state acting within the

scope of the employee’s employment at the time of the incident upon

which the claim is based).      Thereafter, the State filed a motion for

summary judgment asserting the State was entitled to immunity

pursuant to the discretionary function and intentional tort exceptions

under Iowa Code section 669.14 (2005).

      The State contended the policies of the IDOC permit prison staff to

use discretion in taking corrective action in the management of inmate

populations and in monitoring and supervising inmates, and therefore,

the correctional staffs’ actions are entitled to discretionary function

exception under Iowa Code section 669.14(1). The State also asserted it

is immune from any claim arising from an assault pursuant to Iowa Code

section 669.14(4).

      The district court denied the State’s motion for summary

judgment, concluding a genuine issue of material fact existed as to

whether the prison staff involved had knowledge of hostility or a history

of prior trouble involving Walker. It did not explicitly address the State’s
                                        6

contention that, as a matter of law, the discretionary function or

intentional tort exceptions applied.           The State filed a motion to

reconsider, which the district court overruled.        We granted the State’s

application   for    interlocutory    appeal    to   determine   whether   the

discretionary function and intentional tort exceptions apply in this case.

      II. Scope of Review.

      We review the denial of a motion for summary judgment for

correction of errors at law. Doe v. Cedar Rapids Cmty. Sch. Dist., 652

N.W.2d 439, 442 (Iowa 2002). Summary judgment is appropriate

      if the pleadings, depositions, answers to interrogatories, and
      admissions on file, together with the affidavits, if any, show
      that there is no genuine issue of material fact and that the
      moving party is entitled to a judgment as a matter of law.

Iowa R. Civ. P. 1.981(3); accord Doe, 652 N.W.2d at 442.

      A genuine issue of fact exists if reasonable minds can differ on how

an issue should be resolved.         Seneca Waste Solutions, Inc. v. Sheaffer

Mfg. Co., 791 N.W.2d 407, 411 (Iowa 2010). When a fact’s determination

might affect the outcome of the suit, it is material. Id.; see also Baratta

v. Polk County Health Servs., 588 N.W.2d 107, 109 (Iowa 1999).

      III. Merits.
      A. Iowa Tort Claims Act.              The Iowa Tort Claims Act (ITCA)

permits an action by a prisoner “when the state negligently permits one

in its custody to be injured by the violent assault of another prisoner.”

Barnard v. State, 265 N.W.2d 620, 621 (Iowa 1978); cf. United States v.

Muniz, 374 U.S. 150, 165, 83 S. Ct. 1850, 1859, 10 L. Ed. 2d 805, 816

(1963) (noting the Federal Tort Claims Act allows for damages for

employee negligence in failing to protect federal prisoners). Although not

an insurer of a prisoner’s safety, the state must exercise reasonable care

to protect the prisoner from harm. Barnard, 265 N.W.2d at 621. For an
                                     7

inmate to recover for injuries incurred in an attack by another inmate,

the inmate must establish: “(1) the state institution knew or should have

known that a specific inmate suffered a risk of harm, and (2) the

institution failed to use reasonable care to prevent the attack on the

inmate.”     Speller v. State, 528 N.W.2d 678, 679 (Iowa Ct. App. 1995)

(citing Mosby v. Mabry, 697 F.2d 213, 215 (8th Cir. 1982)); accord

Barnard, 265 N.W.2d at 621–22 (noting that while not an exclusive list of

circumstances, liability has been imposed when threats, incidents of

prior violence, and other reasonable cause to fear physical harm have

been brought to the attention of authorities; when there has been a

failure to provide adequate supervision; and when authorities have

placed known hostile persons where they have access to each other).

The question raised is whether the discretionary function and intentional

tort exception provisions of the Act provide the State with immunity from

liability.

       B. Discretionary Function Exception. A governmental entity is

entitled to immunity only to the extent permitted by statute. Doe, 652

N.W.2d at 443. “[L]iability is the rule and immunity the exception.” Id.

Thus, we narrowly construe the discretionary function exception.

Madden v. City of Eldridge, 661 N.W.2d 134, 138 (Iowa 2003).            The

government has the burden of establishing entitlement to the statute’s

protection. Ette ex rel. Ette v. Linn-Mar Cmty. Sch. Dist., 656 N.W.2d 62,

68 (Iowa 2002).

       The Iowa Code provides the State shall be immune from tort

liability for
       [a]ny claim . . . based upon the exercise or performance or
       the failure to exercise or perform a discretionary function or
       duty on the part of a state agency or an employee of the
       state, whether or not the discretion be abused.
                                     8

Iowa Code § 669.14(1).

      In Goodman v. City of LeClaire, 587 N.W.2d 232 (Iowa 1998), we

abandoned the planning/operational bright-line test and adopted the

two-prong analysis advocated in Berkovitz v. United States, 486 U.S. 531,

108 S. Ct. 1954, 100 L. Ed. 2d 531 (1988), to determine whether the

discretionary function exception was applicable in a negligent excavation

claim brought against a city under the Municipal Tort Claims Act. 587

N.W.2d at 238 (adopting the Berkovitz two-step analysis).               We

subsequently concluded this analysis was equally applicable under the

ITCA. See Schmitz v. City of Dubuque, 682 N.W.2d 70, 72 (Iowa 2004);

accord Anderson v. State, 692 N.W.2d 360, 364 (Iowa 2005).

      Under the Berkovitz test, the court must initially determine

whether the act in question was a matter of choice for the acting

employee. Berkovitz, 486 U.S. at 536, 108 S. Ct. at 1958, 100 L. Ed. 2d

at 540.   The discretionary function exception is inapplicable when a

statute, regulation, or policy requires a course of action for an employee

to follow. Id. Next, if the action involved discretion on the part of the

employee, the court must consider whether the judgment was of the kind

the exception was designed to protect. Id.; accord Anderson, 692 N.W.2d

at 364. We have adopted the Supreme Court view that the discretionary

function exception “ ‘protects only governmental actions and decisions

based on considerations of public policy.’ ” Anderson, 692 N.W.2d at 364

(quoting Berkovitz, 486 U.S. at 536–37, 108 S. Ct. at 1959, 100 L. Ed. 2d

at 541). The basis for the discretionary function exception is to “ ‘prevent

judicial “second guessing” of . . . administrative decisions grounded in

social, economic, and political policy’ through tort litigation, thereby

protecting [states] ‘from liability that would seriously handicap efficient
                                      9

government operations.’ ” Ette, 656 N.W.2d at 67 (quoting Goodman, 587

N.W.2d at 237).
        [T]he primary factor in determining whether a particular
        activity qualifies as a discretionary function is whether the
        decision to act involves the evaluation of broad policy
        factors. If so, the decision is more likely to be characterized
        as a discretionary function.

Keystone Elec. Mfg. v. City of Des Moines, 586 N.W.2d 340, 348 (Iowa

1998) (citation omitted).

        The appropriate analytical framework has thus been summarized

as follows:
        An inquiring court first must identify the conduct that
        allegedly caused the harm. . . . The issue, then, is whether
        this conduct is of the nature and quality that [the
        government], in crafting the discretionary function exception,
        sought to shelter from tort liability. That issue encompasses
        two questions: Is the conduct itself discretionary? If so, is
        the discretion susceptible to policy-related judgments?

Shansky v. United States, 164 F.3d 688, 690–91 (1st Cir. 1999); accord

Ette, 656 N.W.2d at 67.

        1. Conduct at issue. The first step in our analysis is to determine

the exact conduct that is at issue. Ette, 656 N.W.2d at 67. As previously

noted, the State must exercise reasonable care to protect prisoners from

harm.     Barnard, 265 N.W.2d at 621.       Walker generally contends the

State was liable under Iowa Code chapter 669 for the negligent

supervision of inmates, negligently failing to ensure his safety, and

negligently allowing a dangerous condition to exist in the gym.

        2. Did the correctional staffs’ actions involve discretion?       With

regards to Officer Walston, Walker alleged he failed to use reasonable

care because he failed to (1) alert staff and security of what was going to

happen in the gym, (2) write disciplinary notices on the involved inmates

for minor and/or major rule violations, (3) request an investigation and
                                     10

segregation of the involved inmates, (4) prevent inmate Barnett from

being out of placement, (5) prevent inmate Evans from leaving his unit in

violation of his cell restriction, and (6) engage in further discussions with

the inmates about the breakfast turn out argument. Walker asserts the

State is not immune under the discretionary function exception because

prison policies and procedures mandated Officer Walston take specific

actions in light of the escalating verbal and physical confrontation

between the inmates.       Walker further contends Activity Specialists

Bogdanski and Stipe were negligent because they failed to maintain

direct supervision over the inmates participating in recreational activities

in the gym in violation of a mandatory policy. We begin our analysis by

considering the policies Walker contends were violated by the activity

specialists.

      Walker relies on CCF policy IO-SC-10 which provides that “[s]taff

must stay out of office areas to the greatest extent their duties allow and

remain in personal contact with the offenders in their units,” and that

“[o]ffenders involved in recreation activity . . . shall be subject to direct

staff supervision at all times when they are engaged in such activity.”

Walker claims this policy required the activity specialists to provide

“direct supervision [of inmates] at all times” and that their failure to do

so subjected him to injury. Walker asserts the activity specialists were

aware of a blind spot in the gym where inmates could not easily be

observed and that neither activity specialist was specifically supervising

the inmates or observing the blind spot, which resulted in their failure to

discover a fight between inmates that lasted up to fifteen minutes.

      Upon our review, we disagree with Walker’s conclusion this policy

imposed a nondiscretionary duty on the activity specialists in their

supervision of the inmates during their recreational period. Although the
                                       11

policy directs staff to stay out of office areas and remain in personal

contact with offenders, the requirement is not absolute.            The policy is

conditioned by the additional language “to the greatest extent their

duties allow.” The policy clearly anticipates the need for prison staff to

use their discretion in the provision of supervision and acknowledges

that there are times when the job will require staff to be in an office area.

Cf. Calderon v. United States, 123 F.3d 947, 950 (7th Cir. 1997) (holding

the Bureau of Prison’s policy provides a mandatory duty of safekeeping,

but did not direct the manner by which it must be fulfilled, thereby

providing for discretion on the part of prison personnel); accord Parrott v.

United States, 536 F.3d 629, 637 (7th Cir. 2008). We also do not find the

provision providing that offenders engaged in recreational activity “shall

be   subject   to   direct   staff   supervision   at   all    times”   placed   a

nondiscretionary duty on the activity specialists.            Although the policy

places a duty on the staff, it did not define “subject to direct staff

supervision,” leaving the means and method of carrying out the duty

subject to discretion. Cf. Cohen v. United States, 151 F.3d 1338, 1343

(11th Cir. 1998) (noting that “even though a statute or regulation

imposes a general duty on a government agency the discretionary

function exception may still apply if the agency retains sufficient

discretion in fulfilling that duty”); Ochran v. United States, 117 F.3d 495,

500 (11th Cir. 1997) (holding the use of the language “shall . . . protect”

did not mean that the regulation “left no room for the [U.S. Attorney] to

exercise judgment or choice” about how to protect witnesses).             Walker

has failed to identify any prison policy or procedure that required a

specific course of action for the activity specialists to follow in their

supervision of inmates during the exercise turn out.               Therefore, we
                                    12

conclude the supervision of inmates during the exercise turn out

involved discretionary conduct on the part of the activity specialists.

      Walker asserts CCF policies IN-VI-21, IS-CL-04, IO-SM-02, and

PO-V-17 required Officer Walston to take specific actions and did not

allow him to use his discretion under the circumstances. IDOC policy

IS-CL-04 is entitled “Keep Separates.” It provides: “Staff who become[]

aware of an event or situation between two offenders that may potentially

pose a risk to the offenders while housed in an institution or residential

facility shall report that information to the . . . Shift Supervisor.” While

policy IS-CL-04 required the reporting of events or situations that may

constitute a danger to inmates, the policy does not expressly provide

what constitutes a potential risk to the offender and, therefore, such a

determination must rely on the judgment or discretion of the staff.

Moreover, the policy does not require the report be prepared immediately.

The policy provides discretion to staff in the handling of the reporting

function.

      Policy IO-SM-02, A-2a is entitled “Administrative Segregation.” It

provides:   “An offender may be placed in (Administrative Segregation)

AS3 at any time the Shift Supervisor determines there is credible

evidence that the offender may be in physical danger.” Policy IO-SM-02

is also discretionary.   It allows the shift supervisor to use his or her

discretion to determine whether an offender needs to be placed in

administrative segregation for their protection. Cf. Cohen, 151 F.3d at

1343 (holding the statutory provision did not mandate a specific,

nondiscretionary course of conduct for the bureau of prisons to follow in

classifying prisoners). This policy did not mandate any specific action on

the part of Officer Walston.
                                        13

       Under policy PO-V-17, a unit officer was required to “[m]aintain
security of [the unit] and control of the offenders at all times.” Like the
policies already addressed, this policy imposes a general duty without
prescribing any specific mandatory action by staff and allows for staff
discretion in maintaining security and control of offenders.
       Policy IN-VI-21 was the correctional facility disciplinary policy in

effect at the time of the incident occurring prior to Walker’s assault.3

Part IV of the policy provides for the disciplinary procedures to be used

for major offenses. The policy defines major offenses to include assault,

fighting, threats and intimidation, out of placement of assignment, and

obstructive or disruptive conduct. 4 Walker relies on the following portion

of this policy to assert Officer Walston violated institutional policy in his

handling of the situation at the breakfast turn out.

       A. Preparing The Disciplinary Report

          1. Whenever an employee observes or discovers
             misconduct or a threatening situation, the employee
             will, if possible, direct the offender to take corrective
             action.    If the corrective action is insufficient or
             circumstances warrant, a disciplinary form may be
             completed.     In either event, all incidents shall be
             documented.

              Any offender behavior which constitutes criminal
              behavior or a serious threat to the safety and order of
              the employees, offenders, or property of an institution
              shall be reported by the employee observing the
              incident or to whom the situation has been reported if
              observed by a non-employee.

          2. Violations shall be reported on the Disciplinary Report
             Form IN-V-36 F-1 and forwarded to the shift
             supervisor for further review.

       3IN-VI-21was replaced by IO-RD-01 effective April 2008. We do not consider
whether our analysis would be the same under the current policy.
       4The disciplinary policy defines each of these offenses. However, for summary
judgment purposes, we assume, without deciding, that during the breakfast turn out
one or more of these offenses occurred.
                                    14

      ....

      4. Disciplinary reports are to be promptly forwarded to the
         shift supervisor or designate official . . . .

      5. Shift supervisor . . . shall make an initial determination of
         the status of the offender pending disciplinary
         procedures. If necessary for the safety and security of
         staff and other offenders, the offender may be assigned to
         administrative segregation.
(Emphasis added.)

      Walker acknowledges the policy provides that if an officer

encounters misconduct or a threatening situation, the officer may

attempt to resolve the issue by directing the inmate to take corrective

action, and that, if the corrective action is insufficient or circumstances

warrant, the officer may complete a disciplinary report. Such language

requires no mandatory action on the part of the officer and clearly allows

for an officer to use his or her discretion. See Dykstra v. U.S. Bureau of

Prisons, 140 F.3d 791, 795 (8th Cir. 1998) (holding prison policy did not

require prison counselor to warn inmate that his youthful appearance

made him vulnerable to attack prior to obtaining waiver of protective

custody); Calderon, 123 F.3d at 949 (finding prison disciplinary

regulation, which allowed staff to consider informal resolution of an

incident gave prison personnel room for judgment in determining

whether to sanction an inmate).       Officer Walston did, in fact, take

corrective action by talking to the inmates and inquiring what the

problem was. At various points, he instructed inmates to return to their

cells or units.

      Walker asserts however, that the subsequent language in the

regulation required Officer Walston to take further action under the

circumstances presented.      The regulation required Officer Walston to

report all incidents.   Moreover, it required criminal behavior or serious
                                     15

threats to safety to be reported on a disciplinary form and promptly

forwarded to the shift supervisor.        The shift supervisor would then

determine whether it was necessary for the safety and security of staff

and other offenders that the offender be assigned to administrative

segregation. Walker alleges Officer Walston was aware, after overhearing

the threats of assault and confronting Humphrey and Barnett, that the

inmates were anticipating a fight.          Walker argues, under these

circumstances, the regulation required Officer Walston to make a prompt

report to his supervisor, who would then make the determination

whether there was credible evidence that an inmate may be in physical

danger and impose administrative segregation.
      The State disputes Walker’s interpretation of the regulation.
Although the regulation requires documentation of misconduct or a
threatening situation, the State asserts the policy does not mandate the
type, timing, or manner of documentation.        Those matters, the State
contends, are subject to staff discretion.     Moreover, assuming Officer
Walston was required to document the verbal altercation, he did so later
in the day.     Similarly, while the regulation also requires that criminal
behavior or a serious threat to the safety and order of an institution shall
be reported, the State contends there is no policy or rule for determining
when conduct rises to the level of criminal behavior or a serious threat,
and therefore, it was a judgment call best left to the discretion of the
prison staff.    In support, the State relies on the affidavit of Associate
Warden/Security at CCF, Jim Payne.          In addressing the policies and
procedures regarding inmate violations, Associate Warden Payne stated:
            3. There is no written policy or procedure mandating
      that when a correctional officer or other staff member
      observes an inmate violating a minor or major rule that an
      inmate disciplinary report be completed or that the inmate
      be referred to the shift captain for segregation and lock up.
                                    16
            4. To the contrary the Correctional Officer or the staff
      member is encouraged by written policy and procedure and
      also through training, to attempt other less drastic corrective
      action when possible.
             5. The Correctional Officer or staff member must
      make a decision based on judgment on what corrective
      action is appropriate for the situation or event. Proper
      corrective action can include anything from making your
      presence known, to talking with the inmate, to a verbal
      warning, to referring the matter to a shift manager to
      consider segregation or lock up, or sending the inmates to
      their cells.

The State also argues that there was no criminal behavior or serious

threat to the safety and order of the institution after Officer Walston

spoke with the inmates. The State asserts the regulation requires the

exercise of judgment and discretion similar to that found in Calderon.

      In Calderon, a federal prison inmate informed prison personnel of

threats he had received from another inmate, Perez. 123 F.3d at 948.

Federal prison disciplinary regulations provided that “ ‘[s]taff shall take

disciplinary action at such times and to the degree necessary to regulate

an inmate’s behavior within the Bureau rules and institution guidelines

and to promote a safe and orderly institution environment.’ ” Id. at 949

(quoting 28 C.F.R. § 541.10(b)(2)).       The regulations further defined
“ ‘[t]hreatening another with bodily harm or any other offense’ ” as a

prohibited act for which disciplinary action must be taken. Id. (quoting

28 C.F.R. § 541.13). The same regulations also required that
      “when [the] staff witnesses or has reasonable belief that a
      violation of [prison] regulations has been committed by an
      inmate, and when staff considers informal resolution of the
      incident inappropriate or unsuccessful, staff shall prepare
      an Incident Report and promptly forward it to the
      appropriate [supervisor].”

Id. (quoting 28 C.F.R. § 541.14(a)).     Prison personnel took no steps to

protect Calderon or to discipline Perez, who eventually attacked and
                                           17

seriously injured Calderon.         Id. at 948.     The government claimed the

decision not to separate Calderon and Perez involved a discretionary act

and therefore liability was barred under the Federal Tort Claims Act

(FTCA). Id.

       In   reviewing    the    federal    regulations      for   addressing   inmate

misconduct, the court found that none of the cited regulations set forth

any mandatory, nondiscretionary disciplinary action that required prison

personnel to take specific action against Perez prior to his attack on

Calderon.     Id. at 949–50.       First, the regulations did not specify any

particular type of action personnel are required to take with respect to

inmate discipline. Second, while section 541.14 may require an incident

report, which might ultimately lead to the imposition of a sanction, the

court noted that such action was only required when (1) prison personnel

witness or have a reasonable belief that a violation has occurred, and

(2) when staff considers informal resolution inappropriate.                  Calderon

presented no evidence that prison personnel witnessed any violation of

prison regulations or made any formal finding that Perez had actually

committed any prohibited acts. Id. at 950. The court, therefore, found

the   regulations     clearly   gave      the   prison     personnel   discretion    in

determining whether to sanction Perez. 5             Id.    The court also rejected

         5The Seventh Circuit also rejected the defendant’s argument that the
“reasonable belief” standard should be interpreted as “when a reasonable staff person
would have had a belief that a violation occurred.” Calderon, 123 F.3d at 950 n.1. It
concluded that if the discretionary function exception could be pierced by a showing of
negligence, then it was no shield at all. Id. In Parrott v. United States, 536 F.3d 629,
637 (7th Cir. 2008), the Seventh Circuit held that while 18 U.S.C. § 4042 provided a
mandatory duty of care, it did not provide the manner by which that duty was to be
fulfilled. However, it continued, an inmate was only required to show that the prison
staff knew or reasonably should have known of a potential problem between two
inmates, seemingly a step away from Calderon. Parrott, 536 F.3d at 637. The appellate
court concluded that the district court made no findings about what the prison official
should have known about the risks of placing Parrott in the same work detail as
another inmate and that this might be enough to warrant a remand on Parrott’s failure-
to-protect claim. In the end, however, the decision to remand was due to disputed
                                         18

Calderon’s argument that 18 U.S.C. § 4042, which provides the Bureau

of Prisons “shall . . . provide for the safekeeping, care, and subsistence of

all persons charged with or convicted of offenses against the United

States,” required any mandatory action of the prison personnel. Id. at

950.

       The State’s reliance on Calderon is misplaced.            In Calderon, the

statute required action and a report when (1) a violation was witnessed

or when a reasonable belief that a regulation violation had occurred and

(2) prison personnel determined informal resolution was inappropriate or

unsuccessful.     Id. at 949.    In Calderon, the court found there was no

evidence that prison personnel witnessed any violation of prison

regulations or made any formal finding that Perez had actually

committed any of the prohibited acts.          Id. at 950. Here, however, the

regulations required
       [a]ny offender behavior which constitutes criminal behavior
       or a serious threat to the safety and order of the employees,
       offenders, or property of an institution shall be reported . . .
       on the Disciplinary Report Form IN-V-36 F-1 and [promptly]
       forwarded to the shift supervisor . . . [who] shall make an
       initial determination of the status of the offender pending
       disciplinary procedures . . . [and] if necessary for the safety
       and security of staff and other offenders, the offender may be
       assigned to administrative segregation.

       We agree with the State that while the regulation provides
discretion as to the reporting and handling of “misconduct or a
threatening situation,” with respect to “criminal behavior or a serious
threat,” the regulation requires the officer to promptly report to the shift
supervisor.      Pursuant to Policy IN-VI-21, assault is defined as
“intentionally caus[ing] or threaten[ing] to cause injury to another
__________________________
issues of material fact as to whether the contents of a previously entered separation
order left prison personnel without discretion to keep Parrott and the other inmate
separate. Id. at 637–38.
                                    19

person,” and is categorized as a major offense under the disciplinary
regulations.    “Promptly” means “immediately” or “quickly”.     Webster’s
Third New International Dictionary 1816 (unabr. ed. 2002) [hereinafter
Webster’s].     However, because at this stage the material facts are
disputed, we are unable to determine whether, for example, an assault,
which by definition constitutes criminal behavior, occurred and would,
under the circumstances, constitute a serious threat. Because material
facts are at issue, i.e., whether Officer Walston overheard threats of
assault and preparation for a fight during the exercise turn out, it is not
possible to determine whether the regulation required Officer Walston to
prepare a report, which must then be promptly forwarded to the shift
supervisor for review and consideration of any potential additional safety
measures.      See Ashford v. United States, 511 F.3d 501, 505 (5th Cir.
2007) (holding summary judgment improper where inmate claimed he
raised safety concerns during intake interview which would, under
prison policy, have required him to be put in solitary confinement until
an investigation could be conducted); see also Schneider v. State, 789
N.W.2d 138, 146–47 (Iowa 2010) (holding the discretionary function
doctrine had no application because the State had no discretion in
determining whether the bridge could be designed and built to encroach
on a floodway).
      3. Was the discretion susceptible to policy-related judgments?
Nevertheless, even if we conclude none of the policy provisions discussed
required mandatory action by prison personnel, we conclude the
discretionary function exception is not applicable in this case because
the decisions by prison staff in the supervision of the inmates did not
involve the evaluation of broad public policy factors.          Individual
judgments protected by the discretionary function exception must be
                                    20

based on considerations of public policy. Anderson, 692 N.W.2d at 364.
The record must show
      the governmental entity based its actions on the required
      policy considerations, as distinguished from an action
      arising out of the day-to-day activities of the business of
      government. Unless a governmental entity can demonstrate
      that when it exercised its judgment, it genuinely could have
      considered and balanced factors supported by social,
      economic, or political policies, we will not recognize the
      discretionary function immunity.

Id. at 366.
      In other words, an immune governmental action is one that
      weighs competing ideals in order to promote those concerns
      of paramount importance over the less essential, opposing
      values. Whether or not the [governmental actor] actually
      made its decision with policy considerations in mind is not
      determinative. Instead, the [governmental entity’s] actions
      . . . must be amenable to a policy-based analysis. The
      circumstances must show the [entity] legitimately could have
      considered social, economic, or political policies when
      making judgments as to [the supervision of prison inmates].

Graber v. City of Ankeny, 656 N.W.2d 157, 165 (Iowa 2003).
      The State argues the evidence supports the conclusion correctional
staff, in supervising the inmates and addressing inmate behavior, could
have considered social and economic policies.       Specifically, the State
notes the legislature has granted the IDOC statutory authority to create
disciplinary procedures and adopt rules pertaining to the internal
management of penal institutions within the state.         See Iowa Code
§§ 904.108(1)(a), (k); .205. Under these rules, staff is given discretion in
the application of corrective action and the reporting of rule violations.
In his affidavit, Associate Warden Payne maintained such discretion is
necessary because rule violation is very common in prison. If every rule
violation resulted in a disciplinary report or segregation, he asserted, the
correctional staff would be unable to perform their job, which would
result in the deterioration of the safe and efficient operation of the
                                     21

facility.   It would require more staff to be hired, an economic
consideration. Moreover, the increased disciplinary action and lock ups
would produce inmate dissatisfaction and frustration, resulting in
threats to the safe and efficient operation of the facility. The State argues
this case is similar to and governed by our analysis in Anderson.
       In Anderson, the plaintiff brought a premise liability claim,
asserting the State was negligent for failing to close the university library
due to inclement weather. 692 N.W.2d at 361. The evidence established
the university had a written policy concerning operations during adverse
weather.    Id. at 362.   In deciding whether the discretionary function
exception applied to the dean’s decision not to close the library early, we
considered our application of the discretionary function exception in
other cases.   In cases where we held the exception inapplicable, the
record showed the governmental entity did not base its action on
required policy considerations, but rather the action arose out of the day-
to-day activities of the business of government.      Id. at 364–66 (citing
Madden, 661 N.W.2d at 139–40 (holding building inspector’s decision not
to inspect dry wall was ad hoc and there was no evidence to suggest
engagement in policy analysis); Ette, 656 N.W.2d at 69 (holding school’s
decision to send student home alone on bus was not a judgment call
driven by social, economic, or political concerns); Messerschmidt v. City
of Sioux City, 654 N.W.2d 879, 881 (Iowa 2002) (holding decision to
remove a road barricade did not involve policy-making decisions and city
had “not met its burden to prove considerations based on social,
economic, or political policy were involved in its decision”); Doe, 652
N.W.2d at 444–45 (holding school failed to show any social, political, or
economic factors as basis for decision to hire, retain, and supervise a
particular teacher); Bellman v. City of Cedar Falls, 617 N.W.2d 11, 19
(Iowa 2000) (holding teacher’s decision in supervising children was not
                                           22

based    upon     policy     considerations)).     We     held   that    “[u]nless    a
governmental entity can demonstrate that when it exercised its
judgment, it genuinely could have considered and balanced factors
supported by social, economic, or political policies, we will not recognize
the discretionary function immunity.”             Id. at 366 (citing Graber, 656
N.W.2d at 165).
        Applying this test to the facts, in Anderson we found the dean
considered and balanced the same factors used by the university when it
formulated the policy: providing the maximum opportunity for students
and staff to utilize the library, thus furthering the public policy of
providing the best college education at a reasonable cost, against the
adequacy of the staff and the number of persons using the library
facilities.     Id.        Because   the   dean   could    balance      these   policy
considerations        in   making    her   determination,    we    concluded         the
discretionary function exception applied.
        Here, we conclude the discretionary function exception is not
applicable because the decisions made by the correctional staff in the
supervision of the inmates did not involve the evaluation of broad public
policy factors.       The correctional staffs’ handling of the confrontation
during the breakfast turn out and their supervision of the inmates
during the exercise turn out was not the product of a judgment call
driven by legitimate social, economic, or political concerns. As we held in
Madden,
               While most governmental actions involve some degree
        of discretion, only those choices based upon the “meaningful
        exercise of discretion” are immune from liability. The critical
        distinction “is the one between a judgment that embodies a
        professional assessment undertaken pursuant to a policy of
        settled priorities and a fully discretionary judgment that
        balances incommensurable values in order to establish those
        priorities.” An immune government function is “one that
        weighs competing ideals in order to promote those concerns
                                    23
      of paramount importance over the less essential, opposing
      values.”

661 N.W.2d at 139 (quoting Graber, 656 N.W.2d at 164–65). There is no
evidence that, in their supervision of the inmates, the correctional staff
could have or did weigh competing ideals or balance incommensurable
values to promote those concerns of paramount importance. Rather, as
in Madden, the actions of the correctional staff “embod[ied] a professional
assessment undertaken pursuant to a policy of settled priorities.” Id.
      The decisions made by Officer Walston in handling the situation
that unfolded during the breakfast turn out and the activity specialists’
supervision of the inmates in the gym during the exercise turn out were
ad hoc decisions.   See Webster’s at 26 (defining “ad hoc” as “made,
established, acting, or concerned with a particular end or purpose” and
“without reference to wider application”). There is nothing in the record
to suggest that in performing their duties, the correctional staff could
have weighed competing ideals in order to determine how to supervise
the inmates.
      We acknowledge the State’s reliance on several federal cases in

which the federal courts found the discretionary function exception

applicable against claims prison officials were negligent in failing to

protect inmates. See, e.g., Santana-Rosa v. United States, 335 F.3d 39,

43–44 (1st Cir. 2003) (finding prison’s decisions regarding maintenance

of cleaning supplies and inmate work assignments are susceptible to

policy-related analysis and therefore inmate’s FTCA claim for failure to

protect him from other inmate was held to fall within the discretionary

function exception); Cohan, 151 F.3d at 1344 (holding discretionary

function exception shielded federal prisoner’s claim asserting Bureau of

Prisons negligently assigned his attacker to a minimum security prison

on the basis that “[d]eciding how to classify prisoners and choosing the
                                      24

institution in which to place them are part and parcel of the inherently

policy-laden endeavor of maintaining order and preserving security

within our nation’s prisons”); Calderon, 123 F.3d at 950 (holding that

when the inmate has presented no evidence the prison officials witnessed

any violation of prison regulations the actions are presumed grounded in

public policy and the discretionary function exception applies); Dykstra,

140   F.3d   at   795–96   (holding   “[w]hen   established   policy   allows

governmental agents to exercise discretion, ‘it must be presumed that the

agent’s acts are grounded in policy when exercising that discretion’ ” to

dismiss inmate’s claim prison staff was negligent in failing to warn him

his youthful appearance put him at risk of harm before he waived his

option to be placed in protective custody (quoting United States v.

Gaubert, 499 U.S. 315, 324, 111 S. Ct. 1267, 1274, 113 L. Ed. 2d 335,

348 (1991))); Buchanan v. United States, 915 F.2d 969, 972 (5th Cir.

1990) (where prison officials and staff considered the potential for

violence in response to the announcement of the Cuban repatriation

agreement before deciding transferring the American prisoners would

heighten the tension and create greater fear among Cuban detainees and

that a lock-down would be extremely difficult and possibly counter-

productive, discretionary function exception applicable because prison

officials could and did consider and balance factors supported by social,

economic, or political policies); see also Feltes v. State, 385 N.W.2d 544,

547 (Iowa 1986) (noting ITCA was modeled after the FTCA and we give

great weight to relevant federal decisions). Most of these cases rely upon

the United States Supreme Court’s holding in Gaubert.         See Santana-

Rosa, 335 F.3d at 43–44; Cohen, 151 F.3d at 1344; Calderon, 123 F.3d

at 950; Dykstra, 140 F.3d at 795. But see Buchanan, 915 F.2d at 972
                                     25

(decided prior to Gaubert).     Therefore, we find it helpful to consider

Gaubert and its analysis.

      In Gaubert, a shareholder of an insolvent savings and loan

association brought an action against the United States under the FTCA.

499 U.S. at 320, 111 S. Ct. at 1272, 113 L. Ed. 2d at 345. After the

savings and loan went into receivership, the shareholder alleged

negligence of federal officers and directors in selecting the new officers

and directors and in participating in the day-to-day management of the

savings and loan.     Id.   The district court granted the government’s

motion to dismiss, holding all of the challenged actions fell within the

discretionary function exception to the FTCA. Id. The Supreme Court

granted certiorari.

      In applying the second prong of the Berkovitz test, the Court noted:
            Where Congress has delegated the authority to an
      independent agency or to the Executive Branch to implement
      the general provisions of a regulatory statute and to issue
      regulations to that end, there is no doubt that planning-level
      decision establishing programs are protected by the
      discretionary function exception, as is the promulgation of
      regulations by which the agencies are to carry out the
      programs. . . . [T]he actions of Government agents involving
      the necessary element of choice and grounded in the social,
      economic, or political goals of the statute and regulations are
      protected.

Id. at 323, 111 S. Ct. at 1274, 113 L. Ed. 2d at 347. Summarizing the

application of the test, the Court held:
      [I]f a regulation mandates particular conduct, and the
      employee obeys the direction, the Government will be
      protected because the action will be deemed in furtherance
      of the policies which led to the promulgation of the
      regulation.      If the employee violates the mandatory
      regulation, there will be no shelter from liability because
      there is no room for choice and the action will be contrary to
      policy. On the other hand, if a regulation allows the employee
      discretion, the very existence of the regulation creates a strong
      presumption that a discretionary act authorized by the
                                    26
      regulation involves consideration of the same policies which
      led to the promulgation of the regulations.

Id. at 324, 111 S. Ct. at 1274, 113 L. Ed. 2d at 347 (emphasis added)

(citation omitted). Thus, Gaubert held that
      [w]hen established governmental policy . . . allows a
      Government agent to exercise discretion, it must be
      presumed that the agent’s acts are grounded in policy when
      exercising that discretion. For a complaint to survive a
      motion to dismiss, it must allege facts which would support
      a finding that the challenged actions are not the kind of
      conduct that can be said to be grounded in the policy of the
      regulatory scheme.

Id. at 324–25, 111 S. Ct. at 1274–75, 113 L. Ed. 2d at 348. The Court

held that the focus was not on the subjective intent of the agent

exercising the discretion conferred by the regulation, but rather on the

nature of the actions taken and their susceptibility to policy analysis.

Thus, there is a presumption that discretionary acts performed pursuant

to relevant policies, including those performed in the day-to-day

operations, are entitled to the exemption. Id. at 332–33, 111 S. Ct. at

1278–79, 113 L. Ed. 2d at 352–53.

      Although concurring in the judgment, Justice Scalia wrote

separately to voice his disagreement with the analysis employed by the

majority. Id. at 334, 111 S. Ct. at 1280, 113 L. Ed. 2d at 354 (Scalia, J.,

concurring in part and concurring in judgment).        In his concurrence,

Justice Scalia examines the oft times confusing application of the second

portion of the two-prong Berkovitz test.      Noting that the discretionary

function exception to the FTCA does not protect all governmental

activities involving choice, Justice Scalia observed that the choice “must

represent a ‘policy judgment.’ ”    Id. at 335, 111 S. Ct. at 1280, 113

L. Ed. 2d at 354.   While acknowledging that the planning/operational

dichotomy is wrong, Justice Scalia nevertheless argued “that the level at
                                      27

which the decision is made is often relevant to the discretionary function

inquiry, since the answer to that inquiry turns on both the subject

matter and the office of the decisionmaker.”             Id. at 335, 111 S. Ct. at

1280, 113 L. Ed. 2d at 355.        In his view, a discretionary choice was

shielded from liability only “if the choice is, under the particular

circumstances, one that ought to be informed by considerations of social,

economic, or political policy and is made by an officer whose official

responsibilities   include   assessment       of    those   considerations.”    Id.

(emphasis added) (noting, as an example, the dock foreman’s decision to

compactly store bags of fertilizer would not be protected, even if he

calculated cost versus safety, because it was not his responsibility to

ponder such things).

       We note Gaubert involved a motion to dismiss and the presumption

that when there is an established governmental policy that allows for

discretion, “it must be presumed that the agent’s acts are grounded in

policy when exercising that discretion.” Gaubert, 499 U.S. at 324, 111

S. Ct. at 1274, 113 L. Ed. 2d at 348. Although we have previously cited

Gaubert, see Goodman, 587 N.W.2d at 238; Schneider, 789 N.W.2d at

147, it does not appear that we have adopted this presumption, but

rather our analysis in our prior discretionary function cases are more in

line   with   Justice   Scalia’s   analysis        in   determining   whether   the

discretionary function exception is applicable.               See Anderson, 692

N.W.2d at 366 (finding dean’s decision not to close library during

inclement weather could be and was based upon a balancing of public

policy factors); Madden, 661 N.W.2d at 140 (during performance of a

routine duty “public official did not weigh any broad-sweeping policies

before he decided not to perform a required inspection”); Ette, 656

N.W.2d at 69 (holding supervision of students “is not . . . driven by
                                    28

public policy implications uniquely within the purview of school officials

and employees”); Messerschmidt, 654 N.W.2d at 883 (“Matters such as

when to lift a temporary road barricade do not require evaluation of

policies but instead involved implementation of everyday decisions

routinely made by the city.”); Doe, 652 N.W.2d at 445 (noting that it is

possible to articulate some notion of policy considerations involved in

any decision but that the administrative act of hiring, retaining, and

supervising an individual teacher does not involve the careful balancing

of competing interests, risks, and advantages, and does not elevate such

decision to the level of economic, political, or social policymaking);

Bellman, 617 N.W.2d at 19 (holding while a teacher’s supervisory duties

involve matters of judgment, policy considerations are not involved in the

decisions made by a teacher in supervising her class); see also Butler ex

rel. Biller v. Bayer, 168 P.3d 1055, 1067 (Nev. 2007) (holding decision to

parole inmate requires analysis of multiple social, economic, efficiency,

and planning concerns, but the actions of effectuating inmate’s

postparole placement, while it may have required the exercise of some

judgment or choice, were not actions based on the consideration of any

social, economic, or political policy); Martinez v. Maruszczak, 168 P.3d

720, 729 (Nev. 2007) (applying Berkovitz-Gaubert test in medical

malpractice case and clarifying that decisions at all levels of government,

including frequent or routine decisions, may be protected by the

discretionary act exception, but only if the decisions require analysis of

government policy concerns).

      Because we have concluded the decisions made by the correctional

staff in the supervision of the inmates, in this instance, did not involve

the evaluation of broad public policy factors, we necessarily conclude the

State is not entitled to the discretionary function exception and the
                                    29

district court did not err in denying the State’s motion for summary

judgment.

      C. Intentional Tort Exception.       The State also claims another

section of the ITCA bars Walker’s claim. The section provides:

            The provisions of this chapter shall not apply with
      respect to any claim against the state, to:

             4. Any claim arising out of assault, battery, false
      imprisonment, false arrest, malicious prosecution, abuse of
      process, libel, slander, misrepresentation, deceit, or
      interference with contract rights.

Iowa Code § 669.14(4).     The legislature intended the ITCA to have the

same effect as the FTCA. Feltes, 385 N.W.2d at 547. Thus, we give great

weight to relevant federal decisions interpreting the Federal Act. Id.

      The FTCA provides:

             The provisions of this chapter and section 1346(b) of
      this title shall not apply to—

            ....

             (h) Any claim arising out of assault, battery, false
      imprisonment, false arrest, malicious prosecution, abuse of
      process, libel, slander, misrepresentation, deceit, or
      interference with contract rights: Provided, That, with regard
      to acts or omissions of investigative or law enforcement
      officers of the United States Government, the provisions of
      this chapter and section 1346(b) of this title shall apply to
      any claim arising, on or after the date of the enactment of
      this proviso, out of assault, battery, false imprisonment,
      false arrest, abuse of process, or malicious prosecution.

28 U.S.C. § 2680 (2006). These provisions are commonly referred to as

the intentional tort exceptions to the Act. Sheridan v. United States, 487

U.S. 392, 394, 108 S. Ct. 2449, 2451, 101 L. Ed. 2d 352, 358 (1988).

      The Supreme Court has examined this issue in two cases involving

negligence claims against government when an assault caused the

injuries to the claimant. See Sheridan, 487 U.S. at 393–94, 108 S. Ct. at
                                     30

2451, 101 L. Ed. 2d at 358 (involving an assault on a civilian by an off-

duty serviceman); Muniz, 374 U.S. at 152, 83 S. Ct. at 1852, 10 L. Ed. 2d

at 809 (involving an assault on a prisoner by other prisoners). In Muniz,

the Supreme Court relied on Panella v. United States, 216 F.2d 622 (2d

Cir. 1954).     In Panella, the court narrowly construed the FTCA and

limited its application to claims arising from intentional torts by

government employees. Id. at 624–25. The Panella decision is founded

on the principle that the essence of the claim against the government is

the negligence of their employees, not the assault. Id. at 624. To hold

otherwise would exonerate the government from all liability where the

injuries to the claimant were caused by an assault. Id.

         Adopting the analysis in Panella and citing the holding in Muniz,

the Supreme Court limited the intentional tort exception to cases arising

out of assaults by federal employees. Sheridan, 487 U.S. at 398–400,

108 S. Ct. at 2454–55, 101 L. Ed. 2d at 360–62. Although we have not

decided this issue under the ITCA, we find Panella, Muniz, and Sheridan

are persuasive.

         The basis of Walker’s claim is not that an employee of the State

inflicted an intentional tort, but rather the State was negligent in failing

to protect him from an assault by another prisoner. The whole purpose

of the ITCA is to waive sovereign immunity for the negligent acts of the

State.     To limit the State’s liability whenever an assault causes the

claimant’s damages would relieve the State of its liability for its negligent

acts. This construction of the intentional tort exception is contrary to

the intent of the legislature when it enacted the ITCA.       In construing

statutes, we are required to determine legislative intent.          Auen v.

Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004). As long as

the claimant can show the State is negligent in performing a duty to
                                      31

protect a person from an assault, the intentional tort exception is not

applicable.   Accordingly, we affirm the district court’s ruling on the

intentional tort exception.

      IV. Disposition.

      We find discretionary function and intentional tort exceptions to

the ITCA do not apply under the facts of this case. Therefore, we hold

the district court was correct in denying the State’s motion for summary

judgment.     Thus, we affirm the judgment of the district court and

remand this case for trial.

      AFFIRMED AND CASE REMANDED.

      All justices concur except Waterman and Mansfield, JJ., who

concur in part and dissent in part.
                                    32

                                                #09–0663, Walker v. State

MANSFIELD, Justice (concurring in part and dissenting in part).

      I concur in part and dissent in part.     I would find that Officer

Walston’s response to the “verbal altercation” involved an exercise of

discretion for which the State is immune from suit under Iowa Code

section 669.14(1) (2005).

      First, I believe the facts are clear that prison regulations gave

Officer Walston discretion in responding to the prisoner argument that

occurred during the breakfast turnout. As noted by the majority, Kevin

Walker criticizes Officer Walston’s job performance in six different ways.

However, the majority can point to only one area in which Walker

conceivably did not have discretion, that is, the requirement that “a

serious threat to the safety and order of the employees, offenders, or

property of an institution shall be reported by the employee observing the

incident.” But even here, the majority notes that Walker did file a report,

and the regulations do not state how promptly a report has to be filed.

Unsurprisingly, in this instance, the report concerning the incident did

not get filed before Walker was struck in the gym around 8:15 a.m. the

same morning. In short, this part of the litigation involved an effort to

second-guess a correctional officer’s exercise of judgment.

      Having found that Officer Walston was exercising discretion in how

he managed this inmate-to-inmate confrontation, I would find the State

immune from suit relating to his acts or omissions. I see no reason why

Iowa’s discretionary function exception cannot apply to “decisions made

by the correctional staff in the supervision of inmates.”      Iowa Code

section 669.14(1) is generally worded.     It provides the State shall be

immune from tort liability “based upon the exercise or performance or

the failure to exercise or perform a discretionary function or duty on the
                                    33

part of a state agency or an employee of the state, whether or not the

discretion be abused.” Iowa Code § 669.14(1). Thus, under the statute,

the individual exercising discretion can be any state “employee,”

including someone performing the difficult and demanding job of a

correctional officer.

      Iowa Code section 669.14(1) is directly modeled after the

discretionary function exception in the Federal Tort Claims Act. See 28

U.S.C.A. § 2680(a) (West, Westlaw through P.L. 112–24 approved July

26, 2011). As noted by the majority, there are many federal precedents

applying the federal discretionary function exception to claims brought

by prison inmates against prison staff.

             The great weight of the case law suggests that if a
      decision regarding the protection, safety, and classification of
      prisoners is discretionary (i.e., there are no mandatory
      directives), then such a decision is grounded in public policy
      and the discretionary function exception applies.

Sledge v. United States, 723 F. Supp. 2d 87, 96–97 (D. D.C. 2010) (citing

numerous cases).

      This outcome follows from the United States Supreme Court’s

decision in United States v. Gaubert, 499 U.S. 315, 111 S. Ct. 1267, 113

L. Ed. 2d 335 (1991). There, the Supreme Court held that, if a regulatory

scheme affords discretion and the challenged actions can be said to be

grounded in the policy of the regulatory scheme, the discretionary

function exception applies. Gaubert, 499 U.S. at 324–25, 111 S. Ct. at

1274–75, 113 L. Ed. 2d at 347–48. The nature of the conduct, rather

than the status of the actor, governs whether the exception applies. Id.

at 322, 111 S. Ct. at 1273, 113 L. Ed. 2d at 346. Thus, for example, if a

regulation allows for discretion in responding to a specific prison

situation and the prison official’s response can be said to be related to
                                    34

legitimate prison policy considerations, the discretionary exception

function applies and the government is immune from suit. If this case

were in federal court concerning an incident that occurred in federal

prison, I have little doubt that Walker would be unable to sue over

Officer Walston’s alleged acts and omissions.

      Today’s   decision,   however,     limits   the   availability   of   the

discretionary function exception to situations in which the decision

involved the actual “evaluation of broad public policy factors” or the

“weigh[ing of] competing ideals.”   This approach effectively transforms

the discretionary function exception into an elites-only exemption.

Correctional officers are not such an elite. They perform a dangerous,

stressful, but nonetheless discretion-filled job that does not allow them

the luxury of pondering broad public policy implications or weighing

competing ideals.

      I think Gaubert is a sensible construction of the statutory language

and ought to be the rule in Iowa. In Goodman v. City of Le Claire, 587

N.W.2d 232, 238 (Iowa 1998), our court endorsed the Gaubert standard.

We expressly disavowed earlier case law “holding that the discretionary

function exception does not reach any decisions made at the operational

level,” such as prison guards. Goodman, 587 N.W.2d at 238.

      Just last year, we reiterated the importance of federal precedent in

this area. We said, “As the immunity for discretionary functions in our

statute has its genesis in the federal tort claims act, we have been guided

by federal decisions applying the doctrine.”       Schneider v. State, 789

N.W.2d 138, 146 (Iowa 2010). We have made similar statements before

many times. See, e.g., Ette ex rel. Ette v. Linn-Mar Cmty. Sch. Dist., 656

N.W.2d 62, 67 (Iowa 2002) (“Because the discretionary function

exception has its genesis in the federal tort claims act, we have been
                                     35

guided by federal decisions applying its mandate.”); Shelton v. State, 644

N.W.2d 27, 30 (Iowa 2002) (“The Tort Claims Act is especially appropriate

for applying the sometimes criticized but familiar rule that we are guided

by federal decisions interpreting federal statutes on which our own

statutes are modeled.”); Goodman, 587 N.W.2d at 236 (“We have

recognized that the legislature intended the Iowa State Tort Claims Act to

have the same effect as the Federal Tort Claims Act because the Iowa act

is modeled after the federal act.    For this reason, we have given great

weight to relevant federal decisions interpreting the federal act.”

(Citation omitted.)); Butler v. State, 336 N.W.2d 416, 419 (Iowa 1983)

(The   state   discretionary   function   exception   is    “identical    to   the

discretionary function exception of the Federal Tort Claims Act, and we

are aided by federal interpretations of that provision.”                 (Citation

omitted.)); see also Adam v. Mount Pleasant Bank & Trust Co., 340

N.W.2d 251, 252 (Iowa 1983) (“Because our statute is based on the

federal Tort Claims Act, we assume our legislature intended it to have the

same meaning as the federal statute.”); Hubbard v. State, 163 N.W.2d

904, 911 (Iowa 1969) (same).

       I agree that in some decisions since Goodman we seem to have

followed a non-Gaubertian approach to the discretionary function

exception.     That approach, as the majority accurately explains, bears

more of a resemblance to Justice Scalia’s separate opinion in Gaubert.

See Anderson v. State, 692 N.W.2d 360, 366–67 (Iowa 2005); Madden v.

City of Eldridge, 661 N.W.2d 134, 139–40 (Iowa 2003); Graber v. City of

Ankeny, 656 N.W.2d 157, 165–66 (Iowa 2003); Messerschmidt v. City of

Sioux City, 654 N.W.2d 879, 882–83 (Iowa 2002).            That approach also

arguably revives the concept that decisions made at the operational level
                                     36

cannot be subject to the discretionary function exception—a principle we

said we were discarding in Goodman. 587 N.W.2d at 238.

      Yet, in none of our prior cases have we said we were departing

from Gaubert or overruling Goodman. I would not take that step today.

Rather, I would continue to follow Gaubert and Goodman and apply them

to the prison conditions at issue in this case.

      Accordingly, I would find that Officer Walston was exercising

prison-related discretion when he allegedly did not take sufficient steps

to protect Walker from a threat. Officer Walston’s testimony describes

the prison policy considerations that entered into his decisions:

      [M]ost people, when they get loud in the middle of the day
      room so it draws your attention to the problem, most
      people—not all, as you say—are looking for an out. They’re
      looking for the CO to become involved so they don’t have to
      come to blows. That—that’s the way it works around here a
      lot of times.

            ....

            They want you to get involved to say, hey, you need to
      knock that off. There ain’t going to be any fighting here. I
      got my eyes on you. I’m watching you. Don’t—don’t keep
      going on. And that gives everybody an easy out. So they
      don’t have to lose face to their peers inside here. . . .

            ....

            . . . [T]hat’s the first continuum of how you deal with
      it. You approach them. It’s your presence. You talk to
      them. You tell them. You see how it’s going to work out.
      That’s how it progresses.

            It doesn’t always start from one and go to like one,
      two, three, four on a policy order in the way it’s presented.
      Sometimes you have to skip over if it’s—if it’s turned about,
      you have to go to a higher degree right off the bat, but on a
      normal progression, it’s just like minor reports. You’d go
      with them. You tell them not to do it. You give them a
      verbal warning. You give them the written. Make them do a
      responsibility report.
                                     37
            It all goes up the line unless they just don’t listen and
      you have to go to a higher degree. You don’t want to start at
      the top. You have to have somewhere to go.

      Of course, even under my colleagues’ approach, the fact finder may

well decide that Officer Walston acted reasonably and thus reject

Walker’s claim.    However, in adopting section 669.14(1), I believe the

legislature intended to provide an immunity for these kinds of judgment

calls by a correctional officer.

      I agree with my colleagues’ conclusion that the discretionary

function exception does not apply to Walker’s allegation that Activity

Specialists Bogdanski and Stipe failed to properly supervise the exercise

turnout at which Walker was actually struck and injured.                 This

allegation appears to involve garden-variety negligence rather than an

exercise of prison-related discretion. I also agree that the intentional tort

exception does not apply here and thus join part III. C. of the majority

opinion.

      For the foregoing reasons, I concur in part and dissent in part.

      Waterman, J., joins this concurrence in part and dissent in part.
