                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 01-1112
SIMEON PALAY,
                                               Plaintiff-Appellant,
                                 v.

UNITED STATES     OF   AMERICA,
                                              Defendant-Appellee.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
             No. 99 C 8169—James B. Moran, Judge.
                          ____________
 ARGUED NOVEMBER 8, 2002—DECIDED NOVEMBER 12, 2003
                    ____________


  Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.
  ROVNER, Circuit Judge. Simeon Palay, a federal pris-
oner, sustained injuries when a fight broke out among
fellow inmates belonging to rival gangs at the Metropol-
itan Community Correctional Center in Chicago (“MCC”),
where he was detained pending trial on criminal charges.
Palay filed suit against the United States pursuant to
the Federal Tort Claims Act, 28 U.S.C. § 1346 (“FTCA”),
asserting that MCC officials had been negligent in the
following respects: they improperly reassigned him from
a unit for pretrial detainees like himself to a “holdover” unit
housing convicted prisoners and members of known rival
gangs; they failed to provide secure housing and protect
him from violent attack; and they failed to provide him
2                                               No. 01-1112

with timely and effective medical care for the injuries he
received as a result of the gang fight. The district court
dismissed Palay’s complaint, concluding that Palay had
failed to exhaust his administrative remedies with re-
spect to the medical claim, that the reassignment and
failure-to-protect claims were barred by the discretionary
function exception to the FTCA, 28 U.S.C. § 2680(a), and
that the latter claims failed alternatively for want of a
causal link between the asserted negligence of prison
officials and Palay’s injuries. We affirm in part and reverse
in part.


                             I.
  The following facts are alleged in Palay’s complaint.
Given the procedural posture of the case, we accept them
as true. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct.
1683, 1686 (1974), abrogated on other grounds by Harlow v.
Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727 (1982).
  Palay is a federal prisoner currently housed at the
Federal Correctional Institution in Oxford, Wisconsin. In
June 1998, Palay was detained at the MCC in Chicago,
where he was awaiting trial on federal charges. On June 19,
the second shift lieutenant and unit counselor at the
MCC transferred Palay from the pretrial unit to Unit 21, a
holdover unit housing individuals who had already been
convicted (hereinafter, the “holdover unit”). The complaint
alleges that the transfer was “improper[ ].” Complaint at
3 ¶ 11.
  At approximately 8:00 p.m. on the evening of June 19,
a fight broke out in the holdover unit among inmates
affiliated with two rival gangs. In the course of that alter-
cation, one of the gang members threw a fire extinguisher,
which struck the bunk where Palay lay sleeping and
No. 01-1112                                                     3

discharged into his face.1 The discharge caused Palay
to suffer an acute asthma attack. As he awoke choking,
Palay sat up suddenly and struck his head on the bunk
above him forcefully enough to blur his vision.
  Another inmate helped Palay to a correctional officer’s
station, where an officer directed Palay to an adjacent
room. He remained there for nearly an hour before he was
taken to the medical unit for treatment. There, a physi-
cian’s assistant treated him for his injuries and then
released him to a correctional officer for return to the
holdover unit.
  Palay was returned to the holdover unit at approxi-
mately 10:15 p.m., just over two hours after the fight
had broken out and he had sustained his injuries. Carbon
dioxide fumes from the discharged fire extinguisher still
lingered in the air, and as a result Palay suffered a sec-
ond asthma attack upon his return to the unit.
  Early the following day, a lieutenant questioned Palay
about the incident, and he was placed in administrative
detention pending further investigation. He was released
several days later after officials determined that he was
not a gang member and had not participated in the alter-
cation. While he was placed in administrative detention, he


1
  The complaint alleges only that the extinguisher was dis-
charged into Palay’s face without specifying how. Complaint
at 4 ¶ 12. The administrative claim that Palay filed with the
Bureau of Prisons on the government’s Standard Form 95
indicates that the extinguisher was triggered after it was
thrown during the fight and struck the side of Palay’s bed. App.
28. The district court took the contents of the Form 95 into
consideration, reasoning that the form was a public record of
which it was entitled to take judicial notice. Palay v. United
States, 125 F. Supp. 2d 855, 858 n.1 (N.D. Ill. 2000). For present
purposes, the parties do not dispute the facts underlying the
discharge of the fire extinguisher.
4                                               No. 01-1112

received no treatment or additional medication for the
injuries he had sustained during the fight.
  Following his release from administrative detention
and return to the holdover unit, Palay suffered a series of
seizures. When the first occurred on June 23 (four days
after he was injured), Palay was seen and treated by an
MCC physician. Palay had experienced no seizures prior
to this occasion. The second seizure occurred two weeks
later while he was at the offices of the Federal Bureau of
Investigation in Chicago. He was taken to a hospital, where
a doctor diagnosed him with “New Onset Seizure Disorder.”
Both before and after this second seizure, Palay was re-
fused medication by MCC medical staff. On his return to
the MCC from the hospital, an MCC physician told Palay
that he did not need to keep asking for medication be-
cause he was not having seizures. The physician advised
him that he needed to “[e]at more and drink lots of water.”
Complaint at 6 ¶ 23. Days later, Palay suffered a third
seizure in the middle of the night and awoke to find his
bed soaked with urine. A correctional officer summoned
a physician’s assistant, who did not arrive for several hours
and who failed to assess Palay’s vital signs or provide
any treatment.
  On July 17, five days after his third seizure, Palay
submitted an inmate request to an MCC counselor com-
plaining about the refusal of MCC medical staff to pro-
vide him with medication for his condition. According to
Palay, his complaint was ignored. The medical staff’s
alleged indifference, Palay contends, contributed to his
pain and suffering. Complaint at 7 ¶ 27.
  On February 4, 1999, Palay completed a Standard Form
95 “Claim for Damage, Injury, or Death” recounting the
gang fight, the injuries he had sustained in that alterca-
tion, and the seizures he had suffered in the aftermath. In
this administrative claim for relief, Palay asserted that
No. 01-1112                                                 5

“[d]ue to the Bureau of Prisons[’] failure to protect me
from the violence of fighting gang members and the fail-
ure of keeping hostile gangs sep[a]rated from each other
I have been subjected to an injury that has caused me
severe pain and suffering and emotional and great mental
anguish.” App. 29. He expressed concern that the seizures
would continue and that, upon release from prison, he
would be unable to return to his former occupation as a
forklift operator. App. 29-30. Palay claimed total damages
in the amount of $500,000. App. 28, 30. He attached to
the Form 95 a July 8, 1998 letter to the MCC from his
attorney, Andrea Taylor, requesting copies of all records
relating to Palay’s medical treatment and/or examina-
tions. In that letter, Taylor noted that Palay had been
injured as a result of a gang fight among other inmates
shortly after his transfer into the holdover unit of the
MCC. She pointed out that Palay had suffered three
seizures since his injury and expressed the “hope that
Mr. Palay has been examined for these medical problems.”
App. 31. Palay’s Form 95 was submitted to the Bureau of
Prisons (the “BOP” or “Bureau”).
  In a memorandum dated June 18, 1999, the Bureau’s
regional counsel informed Palay that his claim was de-
nied. “Investigation of your claim did not reveal that
you suffered any personal injury as a result of the negli-
gent acts or omissions of Bureau of Prisons employees
acting within the scope of their employment,” he wrote.
App. 32. The memorandum advised Palay that he was
free to file suit in federal court if he was dissatisfied with
the agency’s decision.
   Within six months of the Bureau’s action, Palay did
file suit, naming the warden, associate warden, and four
other employees of the MCC as defendants. The court
granted him leave to proceed in forma pauperis. He subse-
quently complied with the district court’s order to submit
a copy of the final disposition of his administrative claim,
6                                                    No. 01-1112

and he served five of the six individual defendants named
in his complaint. The United States filed a notice certify-
ing that the named defendants were acting within the
scope of their employment at the time of the events under-
lying Palay’s complaint and substituting the government
as the defendant. R. 9. The government then moved to
dismiss Palay’s complaint, arguing in relevant part that
the court lacked jurisdiction over the negligent reassign-
ment and medical care claims because Palay had not
exhausted his administrative remedies vis-à-vis those
claims and that the claims should therefore be dismissed
pursuant to Federal Rule of Civil Procedure 12(b)(1).
  The district court ultimately dismissed Palay’s claims,
although in part for reasons other than those asserted
by the government. See Palay v. United States, 125 F. Supp.
2d 855 (N.D. Ill. 2000) (“Palay I”); Palay v. United States,
2000 WL 1889668 (N.D. Ill. Dec. 27, 2000) (“Palay II”). The
court agreed that it lacked jurisdiction over the medical
claim because Palay had not asserted such a claim in his
Form 95, and therefore had not exhausted his administra-
tive remedies vis à vis that claim. Palay I, 125 F. Supp. 2d
at 859-60.2 By contrast, the court was satisfied that
Palay had asserted his negligent reassignment claim in the


2
  Although the court dismissed the medical claim without
prejudice, Palay I, 125 F. Supp. 2d at 860, the parties agree
that at this juncture, there is nothing Palay could do that could
resurrect the claim. The time for filing the claim at the ad-
ministrative level has expired, so if, as the district court deter-
mined, Palay did not properly exhaust his administrative
remedies with respect to this claim the first time around, the
claim is now time-barred. See 28 U.S.C. § 2401(b) (claim barred
unless presented to federal agency within two years after it
accrues). The dismissal of the claim is therefore final for purposes
of appellate jurisdiction. See Larkin v. Galloway, 266 F.3d 718,
721 (7th Cir. 2001), cert. denied, 535 U.S. 992, 122 S. Ct. 1551
(2002).
No. 01-1112                                                    7

Form 95; the court viewed this claim as encompassed
within the broader failure-to-protect claim that Palay had
articulated in the form. Id. at 859. However, for either
of two reasons that it raised sua sponte, the court concluded
that the allegations concerning the BOP’s reassignment
of and failure to protect Palay failed to state a claim on
which relief could be granted. See Fed. R. Civ. P. 12(b)(6).3
First, in view of the broad discretion that prison officials
possess with respect to the housing and protection of
prisoners, the court believed that the negligent reassign-
ment and failure-to-protect claims were foreclosed by the
discretionary function exception to liability under the
FTCA. Palay I, 125 F. Supp. 2d at 860-62; Palay II, 2000
WL 1889668, at *1-*3. See 28 U.S.C. § 2680(a); United
States v. Gaubert, 499 U.S. 315, 111 S. Ct. 1267 (1991);
Calderon v. United States, 123 F.3d 947 (7th Cir. 1997).
Second, the court thought that the claims failed for
want of proximate cause: Palay could not show that the
pretrial unit at the MCC was substantially less dangerous
than the holdover unit, such that his transfer from the
former to the latter had anything to do with his injuries;
and, for that matter, the chain of events that caused Palay’s
injuries was so complicated and happenstance as to have
been unforeseeable to prison officials who made the deci-


3
  After raising these grounds in its first opinion on the gov-
ernment’s motion to dismiss, the district court gave Palay thirty
days to file a memorandum explaining why his remaining claims
should not be dismissed on these grounds. Palay I, 125 F. Supp.
2d at 860, 864. When Palay failed to meet the deadline for his
response, the court dismissed the case. R. 26. The court subse-
quently learned that Palay had filed a response (albeit past
the due date) several days before the court had issued the
dismissal order. The court treated the late response as a motion
to reconsider, which the court then denied in a written opinion.
Palay II, 2000 WL 1889668.
8                                                 No. 01-1112

sion to transfer Palay. Palay I, 125 F. Supp. 2d at 862-63;
Palay II, 2000 WL 1889668, at *3-*4.


                              II.
  Our review of the decision to dismiss Palay’s suit is, of
course, plenary. E.g., Johnson v. Apna Ghar, Inc., 330 F.3d
999, 1001 (7th Cir. 2003) (Rule 12(b)(1)), cert. denied, 2003
WL 22081403 (U.S. Nov. 3, 2003); American United Lo-
gistics, Inc. v. Catellus Dev. Corp., 319 F.3d 921, 926 (7th
Cir. 2003) (Rule 12(b)(6)). There are cases from this cir-
cuit (and others) describing two of the three grounds on
which the district court disposed of Palay’s claims—namely,
failing to exhaust administrative remedies before filing
suit, and challenging a decision that fails within the
discretionary function exception to the FTCA—as jurisdic-
tional in nature, rendering them appropriate for disposi-
tion to Federal Rule of Civil Procedure 12(b)(1). See, e.g.,
Sullivan v. United States, 21 F.3d 198, 206 (7th Cir.
1994) (treating exhaustion requirement as jurisdictional);
Calderon v. United States, supra, 123 F.3d at 950 (noting
that discretionary function exception raises jurisdictional
issues).4 More recently, however, we have questioned
whether the exhaustion requirement and the statutory
exceptions to the FTCA truly are jurisdictional in nature.
See, e.g., Frey v. EPA, 270 F.3d 1129, 1135-36 (7th Cir.
2001) (exhaustion requirement); Clark v. United States, 326
F.3d 911, 913 (7th Cir. 2003) (per curiam) (section 2680(c)’s
exception for tax-related claims). These cases suggest that
the statutory prerequisites to suit and exceptions to


4
   As we noted above, the district court construed the exhaus-
tion requirement as jurisdictional but treated the discretionary
function exception and the question of proximate cause as mat-
ters going to the elements of Palay’s claims.
No. 01-1112                                                    9

governmental liability should instead be viewed as
aspects of the plaintiff’s statutory right to relief and, at
the pleading stage, dealt with pursuant to Rule 12(b)(6).
   We need not resolve the ongoing uncertainty as to
whether these matters should or should not be labeled
jurisdictional. What is at stake in this appeal is Palay’s
right to proceed beyond the pleading stage on his claims.
The only sense in which the appropriate characterization
of the statutory exceptions and prerequisites to suit
would matter is if the district court, believing these mat-
ters to be jurisdictional, had exercised its authority under
Rule 12(b)(1) to look behind the plaintiff’s allegations
and make factual findings for purposes of assessing its
subject matter jurisdiction. See LaSalle Nat. Trust, N.A. v.
ECM Motor Co., 76 F.3d 140, 144 (7th Cir. 1996); see also
United Phosphorous, Ltd. v. Angus Chem. Co., 322 F.3d 942,
963 (7th Cir. 2003) (en banc) (dissent), petition for cert.
filed, 72 U.S.L.W. 3129 (U.S. Aug. 7, 2003) (No. 03-203).
If the court had done so, we of course would be obliged to
defer to its findings of fact. See id. But the district court
here did not do that; it confined its examination to the
face of Palay’s complaint5 and took its allegations at face
value, just as a court does in evaluating a Rule 12(b)(6)
motion to dismiss for failure to state a claim. Likewise,
we shall accept the allegations in Palay’s complaint as
true and grant him the benefit of every reasonable infer-
ence that may be drawn from those allegations. Johnson,
330 F.3d at 1001 (Rule 12(b)(1)); American United Logis-
tics, 319 F.3d at 926 (Rule 12(b)(6)).


5
  The court did look to Palay’s Form 95 for elucidation as to
how the fire extinguisher was discharged. See supra n.1. However,
in resolving a motion to dismiss, the district court is entitled
to take judicial notice of matters in the public record. Anderson
v. Simon, 217 F.3d 472, 474-75 (7th Cir. 2000); G.E. Capital
Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080-81 (7th Cir.
1997) (collecting cases).
10                                                No. 01-1112

                       A. Exhaustion
  The FTCA permits an individual to bring suit in federal
court against the United States
     for injury or loss of property, or personal injury or death
     caused by the negligent or wrongful act or omission of
     any employee of the Government while acting within
     the scope of his office or employment, under circum-
     stances where the United States, if a private person,
     would be liable to the claimant in accordance with the
     law of the place where the act or omission occurred.
28 U.S.C. § 1346(b)(1). Pursuant to this provision, federal
inmates may bring suit for injuries they sustain while
incarcerated as a consequence of the negligence of prison
officials. United States v. Muniz, 374 U.S. 150, 83 S. Ct.
1850 (1963). However, the plaintiff may not bring such
a suit unless he has first presented his claim to the appro-
priate federal agency and that agency has denied the claim.
28 U.S.C. § 2675(a).
     [A] claim shall be deemed to have been presented when
     a Federal agency receives from a claimant . . . an
     executed Standard Form 95 or other written notifica-
     tion of an incident, accompanied by a claim for money
     damages in a sum certain for . . . personal injury . . .
     alleged to have occurred by reason of the incident . . . .
28 C.F.R. § 14.2(a). A plaintiff’s failure to exhaust adminis-
trative remedies before he brings suit mandates dismissal
of the claim. McNeil v. United States, 508 U.S. 106, 113,
113 S. Ct. 1980, 1984 (1993).
  Palay, of course, completed a Standard Form 95 and
submitted it to the appropriate agency—the Bureau of
Prisons—for review. That form described the incident giv-
ing rise to Palay’s injuries and requested a sum certain
for those injuries. App. 28. The Bureau, in turn, denied
his claim in writing.
No. 01-1112                                                      11

   The issue, however, is whether Palay “presented” his
negligent reassignment and medical claims in the sense
that he set forth the relevant facts in enough detail to
alert the Bureau of Prisons to the presence of those
claims. Palay was not obliged to plead legal theories in the
Form 95. Murrey v. United States, 73 F.3d 1448, 1452 (7th
Cir. 1996). But he did bear the burden of pleading the
pertinent facts. Id. In that respect, his Form 95 is entitled
to a generous construction. See id. at 1451-52. As the
district judge observed, “[a]ll that is required is ‘sufficient
notice to enable the agency to investigate the claim.’ ” Palay
I, 125 F. Supp. 2d at 859, quoting Charlton v. United
States, 743 F.2d 557, 559 (7th Cir. 1984) (per curiam).
“[A]ny cause of action fairly implicit in the facts” that Palay
set forth in the Form 95 will be considered a claim that
was “presented” to the Bureau of Prisons for purposes of
the exhaustion requirement. Murrey, 73 F.3d at 1452. Put
another way, if the claim would have been apparent to
a “legally sophisticated reader” of the form, then we
will charge the agency with notice of that claim and deem
it to have been exhausted. Id. at 1453.
  The district court found that Palay’s negligent reas-
signment claim had been presented to the Bureau, and we
agree. Palay’s Form 95 expressly charged the Bureau
with having failed to protect him from violence at the
hands of fellow inmates (App. 29), and Palay’s claim
that the Bureau negligently reassigned him from the
pretrial to the holdover unit is really just a more specific
iteration of a failure-to-protect claim.6 Moreover, Palay


6
  The district court treated the complaint as asserting a single
claim for the failure to protect Palay. See Palay I, 125 F. Supp. 2d
at 859. However, the parties agree that Palay is actually assert-
ing two separate claims relating to his physical safety, one for
the MCC’s negligent reassignment of him to the holdover unit
                                                       (continued...)
12                                              No. 01-1112

attached to his Form 95 the letter from his attorney, and
in so doing made that letter a part of his Form. See Murrey,
73 F.3d at 1452-53. In recapping the circumstances
that culminated in the attack on Palay, his counsel made
note of the fact that Palay had been transferred to a new
unit on June 19 and that he was injured “[s]hortly after his
transfer.” App. 31. By noting both the transfer and its
temporal nexus to the incident, the attorney’s letter gave
the legally sophisticated reader of his Form 95 reason to
discern that there was a potential connection between
Palay’s reassignment and the harm that befell him. That
Palay did not explicitly charge that the transfer was
inappropriate is not dispositive; that claim was rea-
sonably implicit in the facts that Palay had set forth in
his papers. See Murrey, 73 F.3d at 1452-53 (informed
consent claim implicit in allegation that doctors had
assured patient and his family that surgery was only
available therapy and would extend his life).
  Whether Palay’s medical malpractice claim was implicit
in the facts that Palay set forth in his Form 95 is a
much closer question. Although Palay described the in-
juries he sustained and the physical effects—including
the recurrent seizures—that he suffered, he stated no
facts suggesting that the prison medical staff had treated
him inappropriately. Whereas, for example, Palay’s com-
plaint notes that an MCC physician had dismissed his
seizure disorder and that his requests for seizure med-
ication were repeatedly denied, there is not a hint of this
in his Form 95. On the other hand, the complaint charges
the defendants with denying Palay timely as well as
effective medical care, and one might find the timeliness


6
  (...continued)
and a second claim for the failure to protect him from inmate
violence. See Palay Br. at 6, Government Br. at 10; see also
Complaint at 7-8, ¶ 28(a) & (b).
No. 01-1112                                                13

aspect of Palay’s medical claim to be implicit in certain of
the facts he alleged in the Form 95. For example, Palay
noted that an hour passed after the attack before he
was taken to the MCC medical unit for treatment; he
also notes that at that time, his head was bleeding from
the laceration he sustained when his head hit the bunk
above him. App. 29. Palay also notes that his attorney’s
letter to the MCC expressed a hope that he was receiv-
ing adequate medical care and in addition requested
access to his medical records. App. 31. But as the district
court observed, although these statements might have
signaled an intent to look into a possible medical claim,
they did not suggest that Palay was presently asserting
such a claim. Palay, 125 F. Supp. 2d at 859-60.
  The most that can be said, really, is that Palay’s claim put
the Bureau on notice that he had been injured and that
he had sought and received some medical treatment for
his injuries. A complete investigation of Palay’s injuries
and the treatment he had received might well have dis-
closed the facts underlying his medical claim; and in the
Fifth Circuit, that would be enough to put the govern-
ment on notice of such a claim. See Frantz v. United
States, 29 F.3d 222, 224-25 (5th Cir. 1994). But we have
expressly declined to go as far as the Fifth Circuit has
in that regard. Murrey, 73 F.2d at 1453. Under the law
of this circuit, because Palay did not include facts in his
Form 95 from which a legally sophisticated reader might
have discerned that he had received inadequate medical
treatment, it would appear that Palay did not exhaust
his administrative remedies with respect to his medical
claim.
  But that does not preclude Palay from seeking relief
for any harm he may have suffered as a result of the
allegedly deficient medical care he received. It is a basic
rule of tort law that the original tortfeasor is respon-
sible not only for the injury directly resulting from the
14                                               No. 01-1112

tort but also for aggravation of that injury caused by
negligence in the medical treatment occasioned by the
injury. E.g., Selbe v. United States, 130 F.3d 1265, 1267 (7th
Cir. 1997); Brownell v. Figel, 950 F.2d 1285, 1294 (7th Cir.
1991); Gertz v. Campbell, 302 N.E.2d 40, 43 (Ill. 1973). So,
in the event that Palay prevails on either of his other
claims, he would be entitled to damages for both his
original injuries and any aggravation of those injuries
resulting from the manner in which the prison’s medical
staff treated him.


        B. Discretionary Function Exception
  Although the FTCA broadly entitles individuals to sue
for injuries they suffer at the hands of negligent federal
officials, Congress has exempted a variety of claims
from the coverage of the statute, including “[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 federal agency or an employee of the Gov-
ernment, whether or not the discretion involved be abused.”
28 U.S.C. § 2680(a). This exception operates to “prevent
judicial ‘second-guessing’ of legislative and administra-
tive decisions grounded in social, economic, and political
policy through the medium of an action in tort.” United
States v. Gaubert, supra, 499 U.S. at 323, 111 S. Ct. at
1273, quoting United States v. Varig Airlines, 467 U.S. 797,
814, 104 S. Ct. 2755, 2765 (1984).
  In order for the exception to apply, two requirements
must be met. First, as its label suggests, this exception
shields the government from suit only when the
complained-of act is discretionary in the sense that it
“involv[es] an element of judgment or choice.” Gaubert, 499
U.S. at 322, 111 S. Ct. at 1273, quoting Berkovitz v.
United States, 486 U.S. 531, 536, 108 S. Ct. 1954, 1958
(1988). Thus, where a “federal statute, regulation, or policy
No. 01-1112                                               15

prescribes a course of action for an employee to follow” and
the employee deviates from that course, his/her acts are
not immune from suit. Gaubert, 499 U.S. at 322, 111 S. Ct.
at 1273, quoting Berkovitz, 486 U.S. at 536, 108 S. Ct. at
1958. Second, the exception “protects only governmental
actions and decisions based on considerations of public
policy.” Gaubert, 499 U.S. at 323, 111 S. Ct. at 1274,
quoting Berkovitz, 486 U.S. at 537, 108 S. Ct. at 1959. See
also Calderon, 123 F.3d at 949; Grammatico v. United
States, 109 F.3d 1198, 1200-01 (7th Cir. 1997); Maas v.
United States, 94 F.3d 291, 297 (7th Cir. 1996).
  With respect to the policy requirement, applicability of
the exception depends not on the intent of the government
actor “but on the nature of the actions taken and on
whether they are susceptible to policy analysis.” Gaubert,
499 U.S. at 325, 111 S. Ct. at 1275. Nor must the actor
belong to the policymaking or planning ranks of govern-
ment in order for the exception to apply; “[i]t is the nature
of the conduct, rather than status of the actor, that gov-
erns whether the discretionary function applies in a
given case.” Id. at 325, 111 S. Ct. at 1275, quoting Varig
Airlines, 467 U.S. at 813, 104 S. Ct. at 2764; see also
Gaubert, 499 U.S. at 334, 111 S. Ct. at 1279. In short,
“[w]hen established government policy, as expressed or
implied by statute, regulation, or agency guidelines, allows
a Government agent to exercise discretion, it must be
presumed that the agent’s acts are grounded in policy when
exercising that discretion.” Id. at 324, 111 S. Ct. at 1274.
  The government contends that the decision to transfer
Palay from a pretrial unit to a holdover unit housing
convicted inmates reflects an exercise of discretion
grounded in policy considerations. In support of that
assertion, it points to the statute committing to the discre-
tion of the Bureau of Prisons the safekeeping and care
of federal inmates, 18 U.S.C. § 4042(a)(2) & (3), and to
16                                             No. 01-1112

our decision in Calderon invoking the discretionary func-
tion exception based in part on that statute.
  In Calderon, we relied on section 4042 to conclude that
the decisions of prison officials as to how to respond to
threats against an inmate fell within the protection of the
discretionary function exception. 123 F.3d at 950. The
plaintiff in Calderon had been injured in an attack by
a fellow inmate. The attack was preceded by a series of
threats, which the plaintiff had reported to at least four
prison officials. Nonetheless, officials had not endeavored
to prevent the attack by disciplining the inmate who
had threatened the plaintiff and who ultimately made
good on the threats by assaulting him. We acknowledged
that section 4042 on its face requires the BOP to “provide
for the safekeeping, care, and subsistence of all persons
charged with or convicted of offenses against the United
States.” See id. at 950, quoting § 4042(a)(2). However,
“[t]he statute sets forth no particular conduct the BOP
personnel should engage in or avoid while attempting to
fulfill their duty to protect inmates.” Id. We thus thought
it clear from the terms of section 4042 that the prison’s
decision not to discipline the source of the threats
against Calderon was a discretionary act and that the
pertinent question was whether that decision was
grounded in policy. Id. We rejected the plaintiff’s conten-
tion that the day-to-day actions of correctional officers
are not policy-based and so are outside the ambit of
the discretionary function exception. “It is clear that
balancing the need to provide security with the rights of
the inmates to circulate and socialize within the prison
involves considerations based on public policy.” Id. at 951.
The record before the court left no doubt on that score: the
evidence revealed that BOP personnel in evaluating
potential safety/disciplinary measures were required to
consider such factors as economic feasibility, staff alloca-
tion, security concerns, and disruption of an inmate’s
No. 01-1112                                                17

participation in rehabilitation programs. Id.; see also
Santana-Rosa v. United States, 335 F.3d 39, 44-45 (1st
Cir. 2003); Alfrey v. United States, 276 F.3d 557, 564-67
(9th Cir. 2002); Cohen v. United States, 151 F.3d 1338,
1342-43 (11th Cir. 1998); Dykstra v. U.S.B.O.P., 140 F.3d
791, 796 (8th Cir. 1998).
  Because prison officials also have discretion with re-
spect to housing assignments, the government contends
that its decision to place a prisoner in one unit as
opposed to another falls within the discretionary func-
tion exception just as we concluded in Calderon that the
decision whether and how to discipline one inmate for
threatening another does. The government notes that it
has no obligation to segregate pretrial inmates from
convicted inmates. The statute governing the terms of
pretrial detention states only that an order of pretrial
confinement shall “direct that the person be committed to
the custody of the Attorney General for confinement in a
corrections facility separate, to the extent practicable, from
persons awaiting or serving sentences or being held in
custody pending appeal.” 18 U.S.C. § 3142(i)(2) (emphasis
added). The statute thus reflects a preference for segrega-
tion but does not demand it where impractical. The perti-
nent regulations employ similar language. 28 C.F.R.
§§ 551.100 (“Pretrial inmates will be separated, to the
extent practicable, from convicted inmates.”), 551.104 (“To
the extent practicable, pretrial inmates will be housed
separately from convicted inmates.”). Thus, the BOP is left
with discretion to assess the practicability of separating
pretrial detainees from those who have already been
convicted. Such assessments presumably would reflect
the same balancing of policy-related considerations that
led us to invoke the discretionary function exception in
Calderon.
  The government certainly is correct that both the stat-
ute and the implementing regulations, although reflect-
18                                             No. 01-1112

ing a preference for segregation, leave room for prison
officials to decide that separating pretrial detainees from
other inmates is not practicable. Given the burdens that
the growth in the prison population in recent decades
has imposed on the nation’s correctional centers, it would
not be surprising to learn that officials at the MCC and
other facilities like it have concluded that segregation is
not always feasible and that pretrial detainees may be
housed with other prisoners as the need arises. But with
nothing more than Palay’s complaint to go on, we have
no idea what the BOP’s or MCC’s policy in fact was, or
whether the official(s) who moved Palay acted in accord
with that policy. For all we know, BOP/MCC policy may
have prohibited such transfers or confined them to circum-
stances that were not present in Palay’s case. Indeed,
consistent with that theory, Palay predicts that the evi-
dence will show that he had previously been transferred
into the holdover unit and then returned to the pretrial
unit in short order after prison officials realized that
placing him in the holdover unit was a mistake (Palay Br.
at 25); his complaint also characterizes his subsequent
return to the holdover unit as “improper[ ],” suggesting
that it was unauthorized (Complaint at 3 ¶ 11).
  We also do not know whether the relevant actors were
authorized to move Palay into the holdover unit. We know
from Gaubert that the discretionary function exception
is not limited to decisions made at the policy or planning
level, but rather extends to decisions at the operational
level that are in furtherance of governmental policy. 499
U.S. at 325, 111 S. Ct. at 1275; see also Calderon, 123 F.3d
at 950-51. However, the decision at issue still must fall
within the actor’s realm of responsibility in order to qual-
ify for the exception. As Justice Scalia pointed out in
his Gaubert concurrence, the status of the actor matters
in the sense that a decisionmaker must be charged with
making policy-related judgments in order for his choices
No. 01-1112                                                 19

to qualify for the discretionary function exception. 499
U.S. at 335-37, 111 S. Ct. at 1280-81 (concurrence); see also
Berkowitz, 486 U.S. at 536, 108 S. Ct. at 1958 (“[i]n examin-
ing the nature of the challenged conduct, a court must
first consider whether the action is a matter of choice for
the acting employee”).
  Thus, for example, in Indian Towing Co. v. United States,
350 U.S. 61, 76 S. Ct. 122 (1955), the failure of Coast Guard
maintenance personnel to ensure that a lighthouse re-
mained illuminated, which resulted in a tug and barge
running aground, could not be described as an exercise in
judgment entitled to protection under the discretionary
function exception, because such workers were not charged
with deciding what level of maintenance inspections were
necessary. See id. at 64, 69, 76 S. Ct. at 124, 127; see also
Berkovitz, 486 U.S. at 538 n.3, 108 S. Ct. at 1959 n.3
(distinguishing Indian Towing on ground that failure to
keep lighthouse in working order “did not involve any
permissible exercise of policy judgment); Gaubert, 499 U.S.
at 336, 111 S. Ct. at 1280 (Scalia, J., concurring) (discussing
Indian Towing: “though there could conceivably be policy
reasons for conducting only superficial inspections [of
the lighthouse], the decisions had been made by mainte-
nance personnel, and it was assuredly not their respon-
sibility to ponder such things”).
  Here, Palay points out that several provisions in the
Bureau’s Program Statement on the care and custody
of pretrial detainees suggest that these individuals were
evaluated and housed pursuant to guidelines unique to
pretrial detainees, that pretrial detainees were to be
housed separately from convicted inmates whenever
feasible, that transfers of pretrial detainees from one
housing unit to another were not to be made casually, and
that the approval of upper-level managers may have
been required before such a transfer occurred. See BOP
Program Statement 7331.03 (“Pretrial Inmates”) (Nov. 22,
20                                                    No. 01-1112

1994) (available at <www.bop.gov> (last checked Nov. 7,
2003).7 Thus, Palay may be able to show that the particular


7
   See Program Statement 7331.03 §§ 2(a) (“Each pretrial inmate
will be separated to the extent practicable from convicted inmates,
and where it is not practicable staff will screen and assess
each pretrial inmate permitting those who do not present a risk
to the orderly running of the institution to have regular contact
with convicted inmates.”); 2(e) (“The status of each pretrial inmate
will be reviewed regularly and upon each return from court.”); 8(b)
(Upon intake screening of a pretrial detainee, “[u]nit staff should
document an initial impression and make a recommendation for
housing to the unit manager. The decision of a housing assign-
ment for a pretrial inmate is normally not designated below the
level of a unit manager. Alternate procedures may be imple-
mented based on institution needs, only with specific written
guidelines approved by the Warden.”); 9(a) (“A pretrial inmate
who presents a risk to the security and orderly running of the
institution shall be housed where appropriate security is provided.
Where practicable, separation from convicted inmates must
still be maintained. At each subsequent pretrial inmate review,
staff shall consider whether that inmate is appropriate for
placement in less secure housing.”); 9(c) (“Prior to any housing
change, staff shall review SENTRY information for possible
separatees or other management concerns and shall document
in the inmate’s file that the review was done.”); 9(d) (“Because
pretrial inmates are to be separated to the extent practicable
from persons who are awaiting sentence, staff should verify
as quickly as possible the status of a pretrial inmate who is
returning from a court appearance and who had been separated
from convicted inmates. . . . When staff receive official notifica-
tion that a pretrial inmate has pleaded or been found guilty,
the inmate is no longer regarded as ‘pretrial,’ and staff shall
place the inmate in ‘holdover’ status, pending sentencing and
initial designation.”); 9(e) (“The Warden shall delegate responsi-
bility for supervision of the housing area for pretrial inmates to
a full-time manager or supervisor . . . .”); 12(a) (“Each pretrial
inmate shall be scheduled for an initial review by the unit team
                                                       (continued...)
No. 01-1112                                                 21

prison officials who transferred him into the holdover unit
either lacked the authority to make the transfer and in
that sense did not exercise protected discretionary judg-
ment, or that they acted in direct contravention of BOP
regulations in transferring Palay. Either way, their con-
duct would not be protected by the exception.
  As for the broader alleged failure to protect Palay
from inmate violence, we likewise cannot say that this
failure necessarily arose from discretionary judgments
rendered in furtherance of prison policy. Although Calderon
makes clear that prison officials enjoy discretion in matters
of inmate safety, we do not know at this juncture wheth-
er the actions (or inactions) leading up to the altercation
in which Palay was injured involved judgment. Again, the
government presumes that the circumstances that made
the fight (and Palay’s injury) possible were the result
of discretionary decisions by prison officials charged with
making such choices—for example, judgments about
housing inmates affiliated with rival gangs in the same
housing unit. Certainly that is possible. But one can also
imagine that negligence having nothing whatever to
do with discretionary judgments enabled the fight to
break out.
  The Second Circuit’s decision in Coulthurst v. United
States, 214 F.3d 106, 109-11 (2d Cir. 2000), illustrates
this point. There a prisoner was injured when a cable on
the weightlifting machine he was using in the prison


7
   (...continued)
within 21 calendar days of the inmates’s first arrival at the
institution, and subsequent reviews shall be conducted at least
every 90 days. The initial and subsequent reviews are to assess
all factors relating to the inmate’s detention including the
practicability of separation from convicted prisoners.”); 12(d)
(“Inmate reviews are to be documented on the Pretrial Inmate
Review Report.”).
22                                              No. 01-1112

gymnasium snapped. He filed suit contending that prison
officials had been negligent in inspecting and maintain-
ing the equipment. The district court dismissed the pris-
oner’s complaint, relying on the discretionary function
exception; but the appellate court reversed, concluding
that the prison’s failure to properly inspect its weightlift-
ing equipment was not necessarily covered by the excep-
tion. The court recognized that there were potentially
two types of negligence that had contributed to the failure
of the equipment: negligence in the design of an inspec-
tion program for the equipment, and negligence in the
actual inspection of the equipment. See id. at 109. The
court assumed that the first type of negligence would
be covered by the discretionary function exception, as it
likely involved elements of judgment and choice (balanc-
ing economic, safety, and other considerations). Id. By
contrast, one could readily imagine that an inspector’s
failure to carry out the inspection program with appro-
priate care was of a different character altogether:
      For example, the official assigned to inspect the ma-
      chine may in laziness or haste have failed to do the
      inspection he claimed (by his initials in the log) to
      have performed, the official may have been distracted
      or inattentive, and thus failed to notice the frayed
      cable; or he may have seen the frayed cable but been
      too lazy to make the repairs or deal with the paper-
      work involved in reporting the damage. Such negligent
      acts neither involve an element of judgment or choice
      within the meaning of Gaubert nor are grounded in
      considerations of governmental policy.
Id.
  As in Coulthurst, it is easy to imagine a scenario in
which MCC officials behaved in a negligent fashion, but
without making the types of discretionary judgments that
the statutory exception was intended to exempt from
No. 01-1112                                               23

liability. Perhaps the corrections officer monitoring the
holdover unit at the time that the gang altercation broke
out was simply asleep, for example. Or perhaps he left
the unit unattended in order to enjoy a cigarette or a
snack. That type of carelessness would not be covered by
the discretionary function exception, as it involves no
element of choice or judgment grounded in public policy
considerations. Coulthurst, 214 F.3d at 109-10; Santana-
Rosa, supra, 335 F.3d at 45 (discussing United States v.
Muniz, supra, 374 U.S. at 152, 83 S. Ct. at 1852); see also
Gaubert, 499 U.S. at 325 n.7, 111 S. Ct. at 1275 n.7. Again,
being at the pleading stage of the case, there is much we
do not know about the circumstances that led to Palay’s
injury. But we cannot say that no set of facts consistent
with Palay’s complaint would entitle him to relief, and we
must be able to say that before dismissing Palay’s claims.
See generally, e.g., Case v. Milewski, 327 F.3d 564, 567 (7th
Cir. 2003), citing Hishon v. King & Spauling, 467 U.S. 69,
73, 104 S. Ct. 2229, 2232 (1984).
  Unstated but implicit in Calderon is the assumption that
prison officials in that case had taken note of the threats
against the plaintiff in that case and weighed the rele-
vant considerations in deciding how best to act (or not)
in response to those threats. There is no hint, for ex-
ample, that prison officials simply ignored the reported
threats or forgot about them. Here, we lack a developed
record that would permit us to decide as a matter of law
whether the actions that allegedly resulted in Palay’s
injuries reflected the exercise of discretionary policy
judgments. We have only Palay’s complaint before us, and
we can sustain the dismissal of that complaint only if
under no set of facts consistent with that complaint could
he circumvent the discretionary function exemption.
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102
(1957). Because it is possible to imagine facts showing that
Palay’s injuries were not the result of permissible discre-
24                                              No. 01-1112

tionary judgments, he is entitled to proceed on his com-
plaint. It remains for his claims to be fleshed out with
evidence before the court can say whether the discre-
tionary function exception applies.


                  C. Proximate Cause
  Under Illinois law, proximate cause consists of two
elements: cause in fact and legal cause. Evans v. Shannon,
776 N.E.2d 1184, 1190 (Ill. 2002). Cause in fact exists
when the defendant’s conduct “is a material element and
a substantial factor in bringing about the injury.” Id.,
quoting First Springfield Bank & Trust v. Galman, 720
N.E.2d 1068, 1072 (Ill. 1999). The defendant’s conduct
meets this criterion “if, absent that conduct, the injury
would not have occurred.” Id., quoting First Springfield.
  “Legal cause,” by contrast, is essentially a question of
  foreseeability. The relevant question here is whether the
  injury is of a type that a reasonable person would see
  as a likely result of his or her conduct.
Id., quoting First Springfield. Whether or not the defen-
dant’s conduct proximately caused the plaintiff’s in-
jury ordinarily is a question for the finder of fact to de-
cide; only rarely are the facts so clear that the court can
resolve the issue as a matter of law. See Shick v. Ill. Dep’t
of Human Servs., 307 F.3d 605, 615 (7th Cir. 2002); see also
First Springfield, 720 N.E.2d at 1071; Felty v. New Berlin
Transit, Inc., 374 N.E.2d 203, 205 (Ill. 1978).
  Focusing first on Palay’s transfer into the holdover
unit, the district court questioned whether there was a
causal link between that transfer and Palay’s injury. The
court found no reason to suppose that the gang alterca-
tion in which Palay was injured would not have broken
out in the pretrial unit or that the pretrial unit was sub-
stantially less dangerous than the holdover unit. This
No. 01-1112                                               25

suggested to the court that Palay’s transfer from one
unit to the other was not a cause in fact of his injuries.
Palay II, 2000 WL 1889668, at *4.
   But granting Palay the inferences to which he is en-
titled at the pleading stage, we think it was improper to
dismiss the negligent transfer claim on this basis. We
do not know, in fact, whether an inmate at the MCC
would have been as susceptible to injury as a result of
inmate violence in the pretrial unit as he would have
been in the holdover unit. Palay represents that the
evidence would show that the pretrial unit at the MCC
has individual cells, which have an isolating effect,
while inmates in the holdover unit are housed in dormi-
tory fashion, which logically would make the possibility
of altercations greater. Palay Br. at 42. Moreover, as
Palay suggests, the two populations may indeed behave
differently: inmates who have not yet been convicted
may strive harder to be on their best behavior. Id. at 43.
So it is possible to imagine a set of facts which might lead
a finder of fact to conclude that Palay’s transfer was a
material and substantial factor in the injuries that Palay
received as a result of the gang fight.
   Certainly there were independent acts by third parties
following the transfer—including in particular the gang
members engaging in the altercation and throwing the
fire extinguisher—that were necessary links in the chain
of causation culminating in Palay’s injuries. But in Illi-
nois the rule is that such intervening causes do not re-
lieve a defendant of liability for its own negligence if
the intervening cause itself was foreseeable. See Felty, 374
N.E.2d at 205, quoting Davis v. Marathon Oil Co., 356
N.E.2d 93, 100 (Ill. 1976); Neering v. Ill. Central R.R. Co.,
50 N.E.2d 497, 504 (Ill. 1943); see also First Springfield
Bank & Trust, 720 N.E.2d at 1072. We need not be con-
vinced that the gang fight was foreseeable in order to let
Palay proceed on his claims. For purposes of Rule 12(b)(6),
26                                               No. 01-1112

we need only be able to envision a set of facts in which
such an incident would have been foreseeable to prison
officials, and that we can do. E.g., Case, 327 F.3d at 567.
  The district court thought that Palay’s injuries were
unforeseeable in another respect. Recall that the fighting
gang members did not strike Palay directly. Instead, one
of them threw a fire extinguisher, the extinguisher
struck Palay’s bed and discharged into his face, and the
discharge caused Palay to awake in a start, sit up sud-
denly, and strike his head on the bunk above him. In
the district court’s view, the peculiar path to Palay’s injury
was not reasonably foreseeable, so that even if the MCC
caused Palay’s injury in fact by transferring him into the
holdover unit or by otherwise failing to protect him from
violence, the MCC’s alleged negligence was not the legal
cause of his injuries. Palay I, 125 F. Supp. 2d at 863; Palay
II, 2000 WL 1889668, at *4.
  But under Illinois law, so long as the defendant could
have foreseen that his negligence would result in some
type of injury, the precise nature or method of injury
need not have been foreseeable. Enis v. Ba-Call Bldg.
Corp., 639 F.2d 359, 362 (7th Cir. 1980) (applying Illinois
law); Neering, 50 N.E.2d at 503; Colonial Inn Motor Lodge,
Inc. v. Gay, 680 N.E.2d 407, 413 (Ill. App. Ct. 1997). So
all we need ask at this stage of the litigation is whether
it is conceivable that Palay could establish that it was
foreseeable to the BOP that, as a result of transferring him
into the holdover unit or more generally by failing to
prevent an outbreak of violence, he would suffer an in-
jury. The answer to that question is plainly yes.
  Whatever obstacles Palay may encounter in attempting
to establish that MCC’s allegedly negligent acts or omis-
sions proximately caused his injuries, we cannot deter-
mine from the face of his complaint that under no set of
facts could he surmount them. He is entitled to proceed
No. 01-1112                                             27

with discovery and marshal evidence in support of his
claims.


                           III.
  The district court’s judgment is AFFIRMED IN PART and
REVERSED IN PART. For the reasons we have discussed,
we conclude that the district court properly dismissed
Palay’s claim for inadequate medical care. The court erred,
however, in dismissing his negligent-reassignment and
failure-to-protect claims. We thank Palay’s appointed
attorneys for their service on his behalf.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                  USCA-02-C-0072—11-12-03
