                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-2-2008

Donaldson v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3265




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Recommended Citation
"Donaldson v. USA" (2008). 2008 Decisions. Paper 1081.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1081


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                                                 NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  ____________

                       No. 06-3265
                      ____________

                SADRICK DONALDSON,

                             Appellant,

                             v.

            UNITED STATES OF AMERICA,

                             Appellee.

                      ____________

      On Appeal from the United States District Court
          for the Western District of Pennsylvania
                  D.C. No. 04-cv-00257E
       District Judge: Honorable Sean J. McLaughlin
                       ____________

        Submitted Under Third Circuit LAR 34.1(a)
                     May 23, 2008

Before: SMITH, HARDIMAN and NYGAARD , Circuit Judges.

                   (Filed: June 2, 2008)
                      ____________

               OPINION OF THE COURT
                    ____________
HARDIMAN, Circuit Judge.

       Sadrick Donaldson appeals from an order of the District Court that: (1) adopted

the Magistrate Judge’s Report and Recommendation (R&R) that his claim be dismissed

under the Federal Tort Claims Act (FTCA) and (2) denied his motion to amend the

complaint to sue the Attorney General of the United States. We will affirm.

                                             I.

       Because we write for the parties, we recount only those facts essential to our

decision.

       While incarcerated at FCI-McKean, Donaldson felt threatened by a fellow inmate

and former paramour, Eric Drayton. In November 2002, Donaldson expressed his

concern to prison officials and was placed in the Special Housing Unit at his request.

After investigating the alleged threat and concluding that there was no credible evidence

of any threat to Donaldson’s safety, prison officials returned him to the general

population in February 2003. Six months later, Drayton walked into a classroom and

threw a hot mixture of pepper and baby oil into Donaldson’s face, causing him first and

second degree burns to his eyes, face, scalp, and shoulders.

       Donaldson first argues that the District Court erred when it adopted the Magistrate

Judge’s recommendation that his FTCA claim should be dismissed pursuant to the

discretionary function exception to the FTCA’s waiver of sovereign immunity. The R&R

specifically advised Donaldson that he had ten days to file objections, and that failure to



                                              2
do so “may constitute a waiver of any appellate rights.” Although Donaldson failed to

object, he “has not waived [his] right to object in this court to the legal conclusions

contained therein.” See United Steelworkers of Am. v. New Jersey Zinc Co., Inc., 828

F.2d 1001, 1006 (3d Cir. 1987). Instead, he has waived his right to plenary review of the

District Court’s order and we will review for plain error. See Nara v. Frank, 488 F.3d

187, 194 (3d Cir. 2007).1

       To ascertain the applicability of the discretionary function exception, we first

determine whether the challenged conduct involves an “element of judgment or choice.”

See Mitchell v. United States, 225 F.3d 361, 363 (3d Cir. 2000). If it does, we then

consider “whether that judgment is of the kind that the discretionary function exception

was designed to shield.” Id. (citations omitted).

       “Before we can make the two-part . . . inquiry to determine whether the

discretionary function exception immunizes the Government from a suit based on its

conduct, we must identify the conduct at issue.” Merando v. United States, 517 F.3d 160,

165 (3d Cir. 2008). Here, Donaldson alleges that the Bureau of Prisons (BOP)

“repeatedly ignored his reports of sexual harassment and threats of violence” and failed to

protect him from Eric Drayton.




       1
         Donaldson insists that we may apply whatever standard of review we wish
pursuant to Leyva v. Williams, 504 F.3d 357, 364 (3d Cir. 2007). Leyva is inapposite
because the pro se litigant in that case was not notified, as Donaldson was, that he would
lose appellate rights if he failed to object to the R&R.

                                              3
       “Now that we have identified the Government’s conduct at issue in this case, we

determine whether the discretionary function exception immunizes it from a lawsuit based

on that conduct.” Id. at 168. This inquiry requires us to “decide whether a statute,

regulation, or policy required” the BOP to protect Donaldson “in any specific manner, or

whether the Government’s actions were discretionary because they involved an element

of judgment or choice.” Id. (citation and internal quotation marks omitted).

       Here, the conduct at issue was governed by a federal statute which requires the

BOP to provide for the “protection” and “safekeeping” of inmates in its care. See 18

U.S.C. § 4042(a)(2), (3). The District Court correctly determined that this statute leaves

the implementation of these duties to the discretion of BOP officials. Additionally,

various federal regulations require the BOP to “control inmate behavior” and “take

disciplinary action” when necessary, but they leave it to the BOP’s discretion as to how to

accomplish those goals. See 28 C.F.R. § 541.10(a); see also 28 C.F.R. § 541.22(a)

(providing that the BOP “may” remove an inmate from the general population for safety

reasons). No federal statute, regulation, or policy required the BOP to take a particular

course of action to ensure Donaldson’s safety from attacks by other inmates, including

Drayton. Therefore, the first step of the Mitchell analysis is satisfied. See Cohen v.

United States, 151 F.3d 1338, 1342 (11th Cir. 1998) (explaining that “even if § 4042

imposes on the BOP a general duty of care to safeguard prisoners, the BOP retains

sufficient discretion in the means it may use to fulfill that duty to trigger the discretionary



                                               4
function exception.”). Accord Ashford v. United States, 511 F.3d 501, 505 (5th Cir.

2007); Montez ex rel. Estate of Hearlson v. United States, 359 F.3d 392, 396-98 (6th Cir.

2004); Santana-Rosa v. United States, 335 F.3d 39, 43-44 (1st Cir. 2003); Dykstra v.

United States Bureau of Prisons, 140 F.3d 791, 795-96 (8th Cir. 1998); Calderon v.

United States, 123 F.3d 947, 948-50 (7th Cir. 1997).

       Turning to the second prong of the Mitchell test, we conclude that the judgment

involved in this case — i.e., how best to protect one inmate from the threat of attack by

another — “is of the kind that the discretionary function exception was designed to

shield.” Mitchell, 225 F.3d at 363. Prison administrators should be afforded wide-

ranging deference in implementing and executing their policies because their discretion is

needed to preserve internal discipline and maintain institutional security. Bell v. Wolfish,

441 U.S. 520, 547-48 (1979). Supreme Court authority underscores the principle that

prison officials have discretionary power over the safety of the institutions they operate.

See Rhodes v. Chapman, 452 U.S. 337, 349 n.14 (1981); see also Whitley v. Albers, 475

U.S. 312, 321-22 (1986).

       Likewise, courts of appeals have applied the discretionary function exception to

bar an inmate’s claims for injuries he received while incarcerated. See Calderon, 123

F.3d at 948, 951 (discretionary function exception barred FTCA claim despite evidence

that BOP officials knew of the threat to inmate and took no steps to protect him); Cohen,

151 F.3d at 1344 (discretionary function exception shielded the BOP from FTCA



                                              5
liability, where an inmate that the BOP had misclassified attacked and injured the

plaintiff); Alfrey v. United States, 276 F.3d 557, 565 (9th Cir. 2002) (where BOP

officials’ decision not to relocate an inmate in the face of death threats from his cellmate

resulted in the inmate’s death, “what steps to take in response to a reported threat”

required correctional officers to “set priorities among all extant risks: the risks presented

by the reported threat, along with the other risks that inevitably arise in a prison,” all of

which “implicate social and public-policy considerations.”). In accordance with these

authorities, we find that the BOP’s decisions about how to protect Donaldson from

Drayton are the kinds of judgments that the discretionary function exception was

designed to protect.2

       For the foregoing reasons, we find that the District Court did not err in holding that

the discretionary function exception to the FTCA shields the United States from liability

in this case.

                                               II.

       Donaldson next argues that the Magistrate Judge erred in denying him leave to

amend his complaint to add sixteen BOP employees as defendants because they “violated


       2
         We also reject Donaldson’s contention that the use of prison officials’ individual
judgments as to how the Drayton threat should have been handled removed their
decisions from the sphere of public policy. See Alfrey, 276 F.3d at 566 (finding that,
although BOP officials’ decisions involved professional judgment, “that fact alone does
not remove the decisions from the realm of policy-based judgments”); see also Calderon,
123 F.3d at 950-51 (observing that even ordinary “day to day” decisions by BOP officials
involve “considerations of public policy”).

                                               6
[his] Constitutional Rights.” That issue, however, is not before this Court because

Donaldson failed to appeal the Magistrate Judge’s February 24, 2005 Order denying him

leave to amend. Instead, Donaldson only appealed the District Court’s May 16, 2006

Order which dismissed his FTCA claim and denied his motion to amend the complaint to

add the Attorney General of the United States.

       Donaldson does not argue on appeal that the District Court erred in denying him

leave to bring a claim against the Attorney General. Had he done so, we would affirm for

the same reason as the District Court.

       For all of the foregoing reasons, we will affirm the judgment of the District Court.




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