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Federal Tort Claims Act

     A woman pregnant with her tenth child was taken into custody on federal bank fraud charges when her pregnancy was in its 35th week. U.S. Marshals arranged for her housing at a facility with a full-time medical staff and a relationship with an obstetrics practice. Her blood pressure was high. No medical history was taken. She did not disclose that with her ninth pregnancy, she had an emergency cesarean section at 34 weeks. She signed a release but the facility did not obtain her prenatal care records. For 10 days, she had multiple contacts with medical staff, and told a nurse that she was not having any problems. She then refused to be seen and signed a refusal form. Days later, she awoke with pain and called for assistance. She was taken to a hospital by ambulance, but again denied having any complications or chronic medical problems. The nurse was unable to find fetal heart tones, and a doctor ordered an emergency cesarean section. The woman suffered a complete abruption of the placenta which stopped the flow of oxygen to the baby, who has severe, permanent disabilities. The abruption likely occurred in the ambulance or at the hospital, because the child would not have survived had it occurred earlier. Her father sued under the Federal Tort Claims Act (FTCA), 28 U.S.C. 2671, alleging medical malpractice. A federal appeals court affirmed summary judgment for the defendants. Placement and retention of the mother at the facility fell within the discretionary function exception to the FTCA’s waiver of sovereign immunity. There was no indication that she required immediate care before the morning of the birth, when staff members promptly called for help. Lipsey v. United States, #17-1063, 2018 U.S. App. Lexis 203 (7th Cir.).

     After the terrorist attacks on September 11, 2001, the U.S. government detained hundreds of illegal aliens, pending a determination of their possible connection to terrorist activity. The plaintiffs, six men of Arab or South Asian descent who were among the detainees and were subsequently removed from the country, filed a proposed class action lawsuit against federal executive officials and wardens, seeking damages, and claiming that their “harsh pretrial conditions” were punitive, violated the Fourth and Fifth Amendments, and were based on race, religion, or national origin. They also asserted that the defendant wardens allowed guards to abuse them. The U.S. Supreme Court has rejected all these claims. In 42 U.S.C. 1983, Congress provided a damages remedy for plaintiffs whose constitutional rights were violated by state officials. There was no corresponding remedy for constitutional violations by federal agents. In 1971, the U.S. Supreme Court recognized (in Bivens v. Six Unknown Fed. Narcotics Agents, #301, 403 U. S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619) an implied damages action for violations of the Fourth Amendment’s prohibition against unreasonable searches and seizures by federal agents. The Court later allowed Bivens-type remedies in Fifth Amendment gender-discrimination and Eighth Amendment Cruel and Unusual Punishments cases. Bivens, however, will not be further extended to a new context if there are “special factors counseling hesitation in the absence of affirmative action by Congress.” To avoid interference with sensitive Executive Branch functions or any inquiry into national-security issues, the Court ruled, a Bivens remedy should not be extended to the claims concerning confinement conditions. With respect to the wardens, Congress did not provide a damages remedy against federal jailers in the Prison Litigation Reform Act 15 years after the U.S. Supreme Court’s expressed caution about extending Bivens. Qualified immunity bars the claims of conspiracy to violate civil rights under 42 U.S.C. 1985(3). Reasonable officials in the defendants’ positions would not have known with sufficient certainty that section 1985(3) prohibited their joint consultations and the resulting policies. There was no clearly established law on the issue of whether agents of the same executive department are distinct enough to “conspire” within the meaning of the statute. Ziglar v. Abbasi, #15-1358, 198 L. Ed. 2d 290, 2017 U.S. Lexis 3874.

     A detainee was taken from the county jail to a federal courthouse for his arraignment. Once there, U.S. Marshals escorted him to an interview room to meet with his lawyer. They inspected that room weekly. On the detainee’s side of the room, there is a metal stool attached to the wall by a swing-arm. According to the plaintiff, when he sat on the stool it “broke,” causing him to fall and strike his head. He allegedly saw that bolts were missing. A nurse examined him and noted that his speech was slurred. She had him taken to the emergency room. He was treated for a stroke and continues to suffer adverse effects.He sued the federal government under the Federal Tort Claims Act, 28 U.S.C. 2671, relying on the doctrine of res ipsa loquitur (it “speaks for itself”) to assert negligence by the government. The trial court rejected the theory, noting that the fall occurred at 11 a.m., so it was possible that others could have already damaged the seat or that he fell without the stool having malfunctioned. A federal appeals court reversed, reasoning that the fact that a detainee is left alone to confer with his lawyer did not defeat the notion that the room and its contents remained within the control of the government. The sort of malfunction that the plaintiff described is the kind of hazard that the government may be expected to guard against. Smith v. U.S., #16-4085, 2017 U.S. App. Lexis 11258 (7th Cir.).

     Eight female alien detainees sued under both 42 U.S.C. Sec. 1983 and the Federal Tort Claims Act (FTCA), 28 U.S.C. 2671 et seq., claiming that a male corrections officer at a privately run prison had sexually assaulted them. Sec. 1983 claims were properly dismissed against the company running the facility and its facility administrator, as well as summary judgment granted on that claim against the officer, since the detention of the plaintiffs according to ICE specifications was carried out under federal law, not under color of state law as required for a Sec. 1983 claim. Claims against the county, which had almost no involvement in the facility's operation, were also rejected. The appeals court also upheld the rejection of FTCA against the U.S. government, as there was no evidence that ICE officials acted with deliberate indifference. Doe v. United States, #15-50331, 2016 U.S. App. Lexis 13696 (6th Cir.).
     Two prisoners at a federally-owned and contractor-run prison sued the U.S. government under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346, after they contracted coccidioidomycosis (cocci). They claimed that the government failed to protect them from contracting this illness. An independent contractor exception to the FTCA did not bar liability. The Bureau of Prisons' duty to warn prisoners before transferring them to this facility arose outside of its contractual relationship with the company running the prison. As the owner of the facility, the U.S. government had a duty under California law to exercise reasonable care in the ownership and management of the property, and state law recognizes a special relationship between jailer and prisoner. Additionally, the BOP did not delegate all of its duties to the contractor once the prisoners arrived at the prison, and explicitly excluded the contractor from participating in the development of a cocci prevention policy. Edison v. United States, #14-15472, 2016 U.S. App. Lexis 9250 (9th Cir.).
     A federal prisoner sued the U.S. government under the Federal Tort Claims Act, 28 U.S.C. 1346(b), claiming that he was severely beaten by another prisoner because of negligence by prison officials. The defendants were granted summary judgment under an exception to liability under the Act for “[a]ny claim based upon . . . the exercise or performance . . . [of] a discretionary function," in this case decided where to house inmates. While that lawsuit was pending, the prisoner filed a second claim asserting constitutional claims against prison employees arising out of the first incident. The first lawsuit was dismissed based on the discretionary function, and the second suit was then dismissed based on the first suit's dismissal. The U.S. Supreme Court ruled that this was improper. The trial court did not dismiss the first suit based on a finding that the employees were not negligent, but only based on an exception to the FTCA as to federal government liability. That had no bearing on the issue of whether employees could be liable instead on a constitutional claim. Simmons v. Himmelreich, #15-109, 2016 U.S. Lexis 3613.
     A D.C. prisoner was incarcerated for over two decades in both federal and state prisons on a conviction for raping and robbing a woman in 1981 when he was 18. After his parole, he was required to register as a sex offender, limiting his employment, housing, and other opportunities. During his incarceration, he suffered multiple instances of several sexual and physical assaults, and contracted HIV. In 2012, at the age of 50, he was exonerated and determined to be actually innocent of the robbery and rape, based on DNA evidence. He reached a settlement of claims against the federal government under the Unjust Convictions Act, 28 U.S.C. Secs. 1495 and 2513, and the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq. of $1,128,082.19, based on $50,000 times the 22.56 years he was incarcerated. Continuing to pursue his claims against the District of Columbia under the D.C. Unjust Imprisonment Act, D.C. Code Sec. 2-421 et. seq., he was awarded $9,154,500 in damages for wrongful conviction, unjust imprisonment, sexual and physical assaults, contracting HIV, lost income, and physical and psychological injuries. A D.C. court found that his wrongful conviction and unjust imprisonment had been a proximate cause of all these damages. It also rejected an argument that D.C. was entitled to an offset from the award for the amount of the plaintiff's settlement with the federal government. Odom v. District of Columbia, #2013-CA-3239, 2015 D.C. Super. Lexis 2.
      A prison's Special Management Unit housed violent prisoners and those with a history of gang involvement while incarcerated. Those in the unit were confined to their cells 23 hours a day and allwed one hour daily in a recreation cage. A prisoner claimed that prison officials engaged in a pattern, practice, or policy of improperly placing prisoners with known conflicts with each other in the same cell, failing to intervene when predictable violence erupted between such prisoners, and improperly restraining prisoners who refuse cell assignments with prisoners known to be hostile to them. A federal appeals court vacated denial of class action certification and summary judgment on an Eighth Amendment claim. A proposed class of inmates placed in special housing unit cells with other inmates known to be hostile to them despite the facility's knowledge of the risk of violence from such cell assignments was not overly broad or improperly defined. A dismissal of a claim under the Federal Tort Claims Act for negligence was properly dismissed, however, for failure to exhaust available administrative remedies. Shelton v. Bledsoe, #12-4226, 2015 U.S. App. Lexis 253 (3rd Cir.).
     A prisoner being admitted to a federal penitentiary allegedly told an intake psychologist that he was mentally ill to the extent that it impaired his ability to function and that he was afraid that he would be attacked if he was placed in the general population. He was placed in the general population and was attacked by another prisoner without provocation on his way to lunch, suffering extensive injuries to his face and head. He sued the U.S. government under the Federal Tort Claims Act, 28 U.S.C. Sec. 2674, claiming that the psychologist did not examine all his available medical documents before releasing him into the general population and that guards failed to monitor their assigned areas, thereby failing to observe the assault, all in violation of mandatory regulations. The federal appeals court overturned summary judgment granted to the government under the discretionary function exception to liability under the Act. The appeals court found that the government had failed to meet its burden of showing that the discretion function exception shielded it from liability as a matter of law under these circumstances. Keller v. United States, #13-3113, 2014 U.S. App. Lexis 21718 (7th Cir.).
     A federal prisoner filed a lawsuit claiming that he had been placed in administrative detention for 60 days in unlawful retaliation in violation of the First Amendment for filing a claim under the Federal Tort Claims Act (FTCA), as well as a claim of failure to protect in violation of the Eighth Amendment based on an assault on him by another prisoner. The trial court granted summary judgment for the defendants, based on the plaintiff's alleged failure to exhaust available administrative remedies before suing, as required by the Prison Litigation Reform Act, 42 U.S.C. 1997e(a), as well as a ruling that the plaintiff's Eighth Amendment claim was barred by his decision to file a FTCA claim regarding the assault. A federal appeals court vacated the trial court's ruling, holding that the failure to exhaust available administrative remedies should be excused because of specific allegations that one of the defendants intimidated him from pursuing a grievance by a threat to transfer him to another facility where she said he would be attacked and placing him in a special housing unit after he filed his FTCA claim, and that the FTCA claim did not bar the Eighth Amendment claim because the FTCA claim was dismissed by the trial court for lack of subject matter jurisdiction and there was no judgment on the claim. Himmelreich v. Fed. Bureau of Prisons, #13-4212, 766 F.3d 576 (6th Cir. 2014).
     While the trial court held that the plaintiff prisoner had voluntarily, and with informed consent, signed a form refusing to have a consultation with a retinal specialist, the appeals court reversed summary judgment for the defendants. It ruled that there were genuine issues of material fact as to the validity as well as the scope of the refusal form. Further proceedings were ordered as to whether any of the individual defendants acted with deliberate indifference on failing to provide him with medical treatment for his retinopathy. Kuhne v. FL Dept. of Corrections, #12-13387, 2014 U.S. App. Lexis 2460, 24 Fla. L. Weekly Fed. C 1013 (11th Cir.).
     The U.S. government can be sued under the Federal Tort Claims Act, 28 U.S.C. Sec. 2680(h) for an alleged sexual assault by guards, according to a unanimous U.S. Supreme Court decision. The statute waives the federal government's sovereign immunity from tort lawsuits, but contains exceptions for intentional acts. An exception to the exception extends the waiver to claims for six intentional torts, including assault and battery that are based on acts or omissions of an “investigative or law enforcement officer” “who is empowered by law to execute searches, to seize evidence, or to make arrests.” The U.S. Supreme Court ruled that this applied to acts of officers within the scope of their employment when they have legal authority, regardless of whether the officers are engaged in investigative or law enforcement activity, or are executing a search, seizing evidence, or making an arrest. It did apply to a correctional officer's alleged sexual assault on a prisoner. Millbrook v. United States, #11-10362, 2013 U.S. Lexis 2543.
     When an inmate failed to seek to obtain his medical records until just before the deadline to designate an expert medical witness for his medical malpractice claim under the Federal Tort Claims Act, his failure to designate an expert justified staying discovery and then granting summary judgment to the defendant. Fujita v. United States, #10-10258, 2011 U.S. App. Lexis 4218 (5th Cir.).
     Federal prisoners in Beaumont, Texas filed a lawsuit under the Federal Tort Claims Act challenging the decision made by a federal prison official not to evacuate the prison in the aftermath of Hurricane Katrina. The lawsuit was properly dismissed, as the prisoners did not argue or show that the Eighth Amendment precluded the application of the discretionary function exception to liability under the Act as applied to this decision. Additionally, the plaintiffs' argument that the Safe Drinking Water Act imposed non-discretionary duties that were violated by the decision not to evacuate was meritless. The decision not to evacuate is exactly the type of policy decision protected by the discretionary function exception. Spotts v. U.S., #09-41039, 2010 U.S. App. Lexis 16480 (5th Cir.).
     While detained by immigration authorities, a prisoner claimed that he "persistently" sought treatment for a bleeding, suppurating lesion. While a Public Health Service (PHS) physician's assistant and three outside specialists repeatedly advised that he urgently needed a biopsy, a PHS physician and a commissioned PHS officer allegedly denied that request. After the prisoner's release from custody, he had tests that confirmed the presence of metastatic cancer. He filed a lawsuit asserting both medical negligence claims against the U.S. government under the Federal Tort Claims Act, 28 U.S.C. 1346, 2671-2680, and constitutional claims against the individual defendants under Bivens v. Six Unknown Fed. Narcotics Officers, #301, 403 U.S. 388 (1971). The plaintiff subsequently died, and the lawsuit was continued by his estate. The U.S. Supreme Court ruled that, under 42 U.S.C. Sec. 233(a), the Federal Tort Claims Act is the exclusive remedy for any claims against any PHS employees or officers for damages for personal injury, including death, arising out of the performance of medical functions while acting within the scope of employment. As a result, the constitutional claims under Bivens were barred. Hui v. Castaneda, #08-1529, 130 S. Ct. 1845 (2010).
     While a prisoner may not have received attention for his burns as quickly as he wished, or even as promptly as would be ideal, there was no deliberate indifference in treating his injuries. Indeed, every time he sought medical attention, it was provided either immediately or within a few hours. Additionally, when the prison staff believed that an outside evaluation of his burns was needed, he was taken to a hospital. The court also held that the Bureau of Prison's Inmate Accident Compensation procedures set forth in 28 C.F.R. § 301.101 et seq. was the plaintiff's exclusive remedy against the government, so that the court lacked jurisdiction to address his Federal Tort Claims Act claim. Walker v. Reese, #08-60994, 2010 U.S. App. Lexis 2409 (Unpub. 5th Cir.).
     A federal prisoner sought damages for injuries allegedly stemming from exposure to asbestos while working as an electrician for the prison's custodial maintenance services during his incarceration at Leavenworth. He claimed that proper protective measures were not taken. Claims against individual defendants under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq., (FTCA), were properly dismissed, as only the U.S. government can be a defendant under that statute. The defendant government argued, however, that the plaintiff's exclusive remedy for work related injuries were under the Inmate Accident Compensation Act. 18 U.S.C. Sec. 4126. Under that statute, federal prisoners who suffer a work-related injury and who still suffer a residual physical impairment as a result, can submit a claim for compensation within 45 days of his release date. If he has fully recovered at that time, however, he can make no such claim. The statute also allows for claims for wages actually lost by the prisoner while prevented from doing his work assignment due to his injury. Because of this statute, the appeals court concluded, FTCA claims against the federal government were also properly dismissed. The fact that the inmate had a lengthy sentence, and might die before he is within 45 days of his release date did not alter the result. The Inmate Accident Compensation Act, however, does not preclude the prisoner from bringing individual capacity federal civil rights claims against federal prison employees for alleged deliberate indifference to a serious risk of harm from exposure to asbestos or other work-relat6ed injuries, so those claims were reinstated. Smith v. U.S., #07-3242, 561 F.3d 1090 (10th Cir. 2009).
     A federal prisoner failed to establish a claim for cruel and unusual punishment under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2401 et seq., since he did not make a showing of physical injury as required by 28 U.S.C.S. § 1346. Michtavi v. U.S.A., #09-2094, 2009 U.S. App. Lexis 20872 (Unpub. 3rd Cir.).
     In a federal prisoner's medical malpractice lawsuit under the Federal Tort Claims Act, a doctor's letter submitted did not meet the court's order that the prisoner submit a certificate of medical merit to comply with Pennsylvania law. The doctor's letter concerning the prisoner's heart condition did not state that the treatment provided fell outside the scope of acceptable professional standards and caused harm, and only stated that the case merited taking a "closer" look. The lawsuit was dismissed. Booker v. U.S.A., #1:CV-07-1960, 2009 U.S. Dist. Lexis 27152 (M.D. Pa.).
     Overturning summary judgment for federal prison officials in a lawsuit under the Federal Tort Claims Act, a federal appeals court noted that a severe asthma attack can be life-threatening like a heart attack, so that further proceedings were required on the prisoner's claim that officials were negligent when he had an asthma attack. There were genuine issues of fact as to whether the asthma attack was severe enough to show physical injuries as required by 28 U.S.C.S. § 1346(b)(2) and 42 U.S.C.S. § 1997e(e) for recovery for negligently caused emotional injuries. Perez v. U.S.A., #08-2807, 2009 U.S. App. Lexis 11071 (Unpub. 3rd Cir.)
     In a prisoner's lawsuit under the Federal Tort Claims Act concerning the alleged loss of his personal property, he failed to adequately establish a right to recover damages from either the U.S government or a delivery service, even if all his allegations were true. Johnson v. U.S.A., #08-20369, 2009 U.S. App. Lexis 7977 (Unpub. 5th Cir.).
     Prisoner claimed that correctional officials were negligent in failing to prevent two other prisoners from stealing his legal papers, fabricating a false crime they claimed he committed, and offering to testify against him in exchange for a reduction in their own sentences. The trial court dismissed the prisoner's claim, brought against the federal government under the Federal Tort Claims Act. The prisoner also failed to establish either negligence or intentional infliction of emotional distress by prison officials. Michtavi v. U.S.A., #4:07-CV-0628, 2009 U.S. Dist. Lexis 18926 (M.D. Pa.).
     A detainee suffering from organ failure was taken to a hospital and restrained there by a handcuff attached to his bed. He died there from causes unrelated to the handcuffing. A federal appeals court rejected civil rights claims, holding that the use of handcuffs in these circumstances was neither punitive nor excessive. There were legitimate and important security interests involved in keeping detainees or prisoners adequately restrained while they receive off-site medical treatment. A negligence claim under the Federal Tort Claims Act was also rejected, in the absence of any evidence of actual injury flowing from the alleged negligence. At most, the plaintiff showed that there may have been some "friction marks" on the detainee's wrists from the handcuffs. Hoyte v. Wagner, #07-4138, 2009 U.S. App. Lexis 2197 (Unpub. 3rd Cir.).
     When federal prison officials charged with enforcing a non-smoking policy concededly did not do so, the federal government was not entitled to claim the discretionary function exception to liability under the Federal Tort Claims Act, 28 U.S.C. Sec. 1346(b) in a lawsuit brought by a prisoner for exposure to an excessive amount of environmental tobacco smoke and failure to properly ventilate a federal prison. Summary judgment was still granted for the government, however, since the prisoner failed to show an actual injury or a cause and effect relationship between the officials' alleged negligence and an alleged injury. Abuhouran v. U.S.A., No. 07-2465, 2009 U.S. Dist. Lexis 8623 (E.D. Pa.).
     The possibility of claims for medical negligence under 42 U.S.C. Sec 233(a) of the Federal Tort Claims Act does not bar the pursuing of federal civil rights claims for deliberate indifference to serious medical needs of prisoners, so that such a claim against employees and officers of the Public Health Service arising out of the death of a prisoner from allegedly repeatedly untreated penile cancer should not be dismissed. Castaneda v. Henneford, No. 08-55684, 546 F.3d 682 (9th. Cir. 2008).
     When prisoners were injured in a vehicle accident while on the bus being transported to a work assignment, claims for their injuries were work-related, had to be filed against the Federal Bureau of Prisons under the Inmate Accident Compensation Act, 18 U.S.C.S. § 4126, so that claims the prisoners filed under the Federal Tort Claims Act were properly dismissed. Baynes v. U.S.A., No. 07-6352, 2008 U.S. App. Lexis 21775 (Unpub. 6th Cir.).
      Trial judge properly denied a motion to dismiss by officers and employees of the Public Health Service in a civil rights lawsuit for alleged repeated failures to treat a prisoner's penile cancer, which was claimed to have caused his death. The Federal Tort Claims Act, 42 U.S.C. Sec. 233(a) does not substitute for federal civil rights claims, and, accordingly, the court rejected the argument that the defendants were entitled to absolute immunity on the claims asserted. Castaneda v. Henneford, No. 08-55684, 2008 U.S. App. Lexis 20812 (9th Cir.).
     While a prisoner had received a recommendation for consideration for a low-altitude housing assignment, his doctor had not indicated in any way that such an assignment was medically necessary. Further, there was no showing of deliberate indifference to his complaints about exposure to second-hand tobacco smoke, since the defendants did investigate his complaints and try to provide an accommodation. The court found, however, that these same allegations may have been enough for negligence claims against the U.S. government under the Federal Tort Claims Act, but that further proceedings were required to determine whether negligence was shown by the facts. The prisoner's claims concerning the denial of exercise was rejected, since he refused opportunities to exercise that he was offered. Ajaj v. U.S.A., No. 07-1073, 2008 U.S. App. Lexis 19786 (10th Cir.).
     The plaintiffs in a wrongful death lawsuit concerning the death of an inmate after he was forcibly removed from his cell by seven correctional officers sufficient alleged facts which, if true, would show that the officers violated the prisoner's clearly established Eighth Amendment rights, so that the defendants were properly denied qualified immunity on those claims. Additionally, when summary judgment was denied on certain claims based on the existence of disputed issues of material fact, there was no jurisdiction to hear an appeal of those denials. Iko v. Raley, No. 07-7569, 2008 U.S. App. Lexis 16607 (4th Cir.).
     Federal prisoner could not pursue claims against Bureau of Prisons personnel for confiscation of his property, items of which they allegedly either failed to return, destroyed, or gave to another prisoner. An exception to the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2671 for damage to property detained by law enforcement officers applies to federal correctional officers, as recently determined by the U.S. Supreme Court in Ali v. Fed. Bureau of Prisons, No. 06-9130, 128 S. Ct. 831 (2008), so that there was no jurisdiction to hear his claims. That provision, found in 28 U.S.C. Sec. 2680(c), is an exception to the FTCA's waiver of sovereign immunity. Gordon v. U.S.A., No. 06-4961, 2008 U.S. App. Lexis 10850 (Unpub. 3rd Cir.).
     Federal appeals court orders further proceedings as to whether prisoner adequately showed that he suffered physical injuries, including an asthma attack, after a prisoner who was drunk and smoking cigarettes was placed in his cell in order to be able to recover mental or emotional damages as required by 28 U.S.C. Sec. 1346(b)(2) of the Federal Tort Claims Act, and 42 U.S.C. Sec. 1997e(e) of the Prison Litigation Reform Act. Perez v. U.S., No. 07-1199, 2008 U.S. App. Lexis 6494 (3rd Cir.).
     A federal prisoner transferred from a facility in Atlanta, Georgia to one in Kentucky allegedly noticed that a number of items were missing from his property, which the federal Bureau of Prisons had shipped to his new facility. He filed a lawsuit under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 1346, seeking recovery of damages. The property involved included items of religious and nostalgic significance, including two copies of the Qur'an, a prayer rug, and religious magazines, with an estimated total value of $177. The U.S. Supreme Court ruled that an exception to the FTCA's waiver of sovereign immunity for actions of federal employees, which bars liability arising from the detention of any property "by any officer of customs or excise or any other law enforcement officer," 28 U.S.C. Sec. 2680(c), applies to all law enforcement officers, including federal correctional officers. The Supreme Court therefore upheld the dismissal of the prisoner's lawsuit. Ali v. Fed. Bureau of Prisons, No. 06-9130, 2008 U.S. Lexis 1212.
     Federal government was not liable under the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq. for failure to protect a prisoner from an assault by another inmate on the basis of the alleged failure of the prison staff to supervise and monitor a stairwell while prisoners were passing through it. The federal government was entitled to summary judgment under a "discretionary function" exception to liability under the Act, as the prisoner failed to show any evidence that there was a mandatory duty to monitor a specific inmate or the area of the stairwell. Queen v. U.S.A., No. 05-3341, 2007 U.S. Dist. Lexis 78823 (D. Kan.).
     Because of a discrepancy between an inventory of inmate property taken at a prior state facility and the inventory taken at a federal facility to which the inmate was transferred, there was a genuine issue as to whether the property was "pilfered" while it was in the custody of federal prison employees, requiring further proceedings on the inmate's claim under the Federal Tort Claims Act, 28 U.S.C. Sec. 1346(b)(1) for the loss of his property, a thermos, a pair of eyeglasses, and a pair of sunglasses. Mathis v. U.S.A., No. 8:05-3000, 2007 U.S. Dist. Lexis 65611 (D.S.C.).
     Trial court improperly dismissed prisoner's claim under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b) and 28 U.S.C. Sec. 2680(a)-(n) seeking damages for a correctional officer's alleged negligent loss of his property while he was being transferred to a new cell. The federal appeals court rejected the trial court's ruling that 28 U.S.C. Sec. 2680(c), in stating an exception to liability under the Act for the detention of goods "by any officer of customs or excise or any other law enforcement officer" applied to actions of a correctional officer. That section, the appeals court ruled, in the phrase "any other law enforcement officer," only references law enforcement officers who are "functioning in a capacity akin to that of a customs or excise officer." The plaintiff's claim, therefore, was not barred by Sec. 2680(c), so further proceedings were required. ABC v. DEF, No. 06-1362, 2007 U.S. App. Lexis 21155 (2nd Cir.).
     Appeals court rejects prisoner's argument that independent contractors, such as a medical center and doctors providing medical services to federal prisoners were agents of the government. The waiver of sovereign immunity contained in the Federal Tort Claims Act, 28 U.S.C. Secs. 2671-2680 does not apply to negligent acts of independent contractors. Additionally, even if the Chief Health Programmer at a facility was found to be a federal employee, a doctor's alleged negligent action of tearing the prisoner's stitches while conducting an examination of his eye was a "subsequent cause," so that any negligence by the Programmer was not the cause of the prisoner's injuries. The prisoner's claims were therefore properly dismissed. Lopez-Heredia v. University of Texas Medical Branch Hospital, No. 05-11365, 2007 U.S. App. Lexis 16102 (5th Cir.).
     In a lawsuit by a federal prisoner under the Federal Tort Claims Act, 28 U.S.C. Sec. 2680, concerning an alleged attack on him by other prisoners, the court ruled that the only proper defendant was the United States government, rather than the Bureau of Prisons, the defendant the plaintiff prisoner named. The court therefore properly dismissed the Federal Tort Claims Act claim. The prisoner also failed to properly state a federal civil rights claim against defendants who were supervisory prison officials, since he did not show that they were either involved personally in the incident, or had carried out an improper policy that caused the injuries he suffered. The conduct claimed, at most, suggested possible negligence, which is inadequate for a showing of a violation of constitutional due process. Toledo v. Bureau of Prisons, No. 06-11265, 2007 U.S. App. Lexis 13441 (5th Cir.).
     A Florida prisoner's dental malpractice claim accrued in 1999 for purposes of a two-year state statute of limitations, since he then knew that several root canals had failed, even if he did not learn the exact reason for the failure until later. His malpractice claim, filed in 2002, was therefore time-barred. The prisoner's Eighth Amendment claim alleging cruel and unusual punishment could not be pursued against a federal agency under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 2671-80, and accordingly was properly also dismissed. Trupei v. U.S. Dept. of Justice, No. 06-15005, 2007 U.S. App. Lexis 14641 (11th Cir.).
     Federal prison officer did not act within the scope of his employment during his alleged sexual assault on a female prisoner. His alleged wrongful actions did not arise from a legitimate employment duty or goal furthering his employer's interests. The fact that the officer was successfully criminally prosecuted for abuse of a ward under 18 U.S.C. Sec. 2243(b) did not bar the U.S. government from denying that the officer was acting outside of the scope of his employment, because a conviction for that offense did not establish, under Texas state law, that the officer acted within the scope of his employment. Accordingly, the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 1346(b) sovereign immunity waiver did not apply. Shirley v. U.S., No. 06-10654, 2007 U.S. App. Lexis 11696 (5th Cir.).
     The limited waiver of sovereign immunity contained in the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq. did not apply to claims concerning the loss of property by a law enforcement officer. An appeals court upheld the trial court's determination that, in a federal inmate's lawsuit against federal prison officials for the alleged taking of his mail and personal property, federal prison officials constituted "other law enforcement officers," and therefore could not be liability for his losses. Bruscino v. Pugh, No. 06-1182, 2007 U.S. App. Lexis 9136 (10th Cir.).
     While the U.S. government was not liable for the intentional actions of one federal prison guard who was convicted of sexual assault of an inmate, there was an issue of material fact as to whether two other guards, who allegedly brought the inmate to that guard at his request, giving him unmonitored access to a female prisoner, in violation of prison regulations, after midnight, led to the assault. Summary judgment denied on plaintiff prisoner's lawsuit under the Federal Tort Claims Act, 28 U.S.C. Sec. 1346. Davis v. U.S., 3:03-CV-0415, 2007 U.S. Dist. Lexis 11198 (N.D. Tex.).
     The Westfall Act, 28 U.S.C. Sec. 2679(b)(1) provides federal employees absolute immunity from tort claims for actions taken in the course of their official duties, and gives the Attorney General the power to certify that a federal employee sued for wrongful or negligent conduct was acting within the scope of his office or employment at the time of the incident. Once that certification takes place, the U.S. government is substituted as the defendant instead of the employee, and the lawsuit is then governed by the Federal Tort Claims Act. Additionally, if the lawsuit began in state court, the Westfall Act provides that it shall be removed to federal court, and renders the Attorney General's certification "conclusive" for purposes of the removal. Once the certification and removal take place, the federal court has the exclusive jurisdiction over the case, and cannot decide to send the lawsuit back to state court. In this case, the U.S. Supreme Court also ruled that certification can take place under the Westfall Act in instances where the federal employee sued asserts, and the Attorney General also concludes, that the incident alleged in the lawsuit never even took place. Osborn v. Haley, No. 05-593 2007 U.S. Lexis 1323. [N/R]
     The federal government, according to a federal appeals court, has waived immunity for the negligent loss of prisoners' property by government employees under the Federal Tort Claims Act, 28 U.S.C. Sec. 1346(b), and subsequent amendments to the Civil Asset Forfeiture Reform Act, which changed the applicable section of the FTCA, 28 U.S.C. Sec. 2680(c), did not alter this. Accordingly, the trial court improperly dismissed a lawsuit for the value of items of property allegedly lost during a prison "shakedown." Dahler v. U.S., No. 05-4782, 2007 U.S. App. Lexis 664 (7th Cir. January 12, 2007) [N/R]
     In federal prisoner's lawsuit claiming that Bureau of Prisons (BOP) personnel did not enforce anti-smoking policies restricting smoking to certain designated areas, a federal trial court ruled that BOP staff had discretion, under the policies and regulations, concerning carrying out the policies. The court therefore dismissed the complaint based on the discretionary function exception of the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2680(a). Reed v. U.S., No. 06-CV-096, 2006 U.S. Dist. Lexis 90547 (E.D. Ky.). [N/R]
     Prisoner could pursue his claim that Bureau of Prisons (BOP) officers lost his personal property, since immunity for law enforcement officers for such losses under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2680(c) did not apply to those officers. Mendez v. U.S., No. 05-1716, 2006 U.S. Dist. Lexis 76099 (D.N.J.). [N/R]
    Prisoner's lawsuit against Bureau of Prisons officer claiming that his negligence caused the loss of his property was improperly dismissed by the trial court. The actions of the officer were not covered, under these circumstances, by an exception, 28 U.S.C. Sec. 2680(c), to the Federal Tort Claims Act, 28 U.S.C. Secs. 1346 and 2671-2680, waiver of sovereign immunity. Bureau of Prison officers are not "law enforcement officers" for purposes of Sec. 2680(c)'s exception to the waiver of sovereign immunity, the court ruled. U.S. v. Andrews, No. 04-7269, 441 F.3d 220 (4th Cir. 2006) [N/R]
     A correctional officer employed by the federal Bureau of Prisons (BOP) is not a "law enforcement officer" within the meaning of the Federal Tort Claims Act (FTCA) section, 28 U.S.C. 2680(c) which excludes from the Act's waiver of sovereign immunity claims for the "detention of goods" by any officer of customs or excise "or any other law enforcement officer." As a result, the trial court improperly dismissed a FTCA lawsuit by a prisoner for the loss of his property which he claimed was caused by the negligence of a BOP officer. Andrews v. U.S., No. 04-7269, 441 F.3d 220 (4th Cir. 2006). [N/R]
     A federal prisoner's lawsuit under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b), 2671-80, alleging that he was injured as a result of a negligent failure to train him to use machinery safely during his prison employment was barred by the provisions of the Federal Prison Industries' Inmate Accident Compensation (IAC) system under 18 U.S.C. Sec. 4126. Cordoba v. Morrison, No. 04-3642, 155 Fed. Appx. 933 (8th Cir. 2005). [N/R]
     Even if alleged confiscation of federal prisoner's art supplies violated a Bureau of Prisons' regulation, this was insufficient to state a claim for damages under the Federal Tort Claims Act, 28 U.S.C. Sec. 2680(a), since the discretionary function exception to the statute applied. The regulation itself made discretionary decisions regarding the removal and disposal of art and hobbycraft items. Terrell v. Hawk, No. 05-2642, 154 Fed. Appx. 280 (3rd Cir. 2005). [N/R]
     In a medical malpractice lawsuit brought against prison medical personnel under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b), 2671-80, a prisoner failed to prove that they were negligent when they failed to diagnose and treat his deep vein thrombosis. The prisoner complained of one of the symptoms of suchan illness--shortness of breath--only once before an attack resulted in him being hospitalized, so that there was no violation of applicable medical standards. Goines v. Pugh, No. 04-1394, 152 Fed. Appx. 750 (10th Cir. 2005). [N/R]
    Federal government was entitled to sovereign immunity in prisoner's lawsuit claiming that his books and manuscript, mailed to his home by prison officials, were lost. While he claimed that this was due to negligence by the federal Bureau of Prisons (BOP) and post office, an exception to the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 1346(b), 2680(b) for "loss, miscarriage, or negligent transmission of letters or postal matters" barred liability. Georgacarakos v. U.S., No. 04-1363, 420 F.3d 1185 (10th Cir. 2005). [N/R]
     Inmate's lawsuit under the Federal Tort Claims Act, 28 U.S.C. Sec. 2401(b) was properly dismissed as untimely when he failed to file it within six months of the Bureau of Prisons' rejection of his application for compensation for prison guards' alleged negligence in failing to protect him from a beating by other inmates. Myles v. US , #02-3944, 2005 U.S. App. Lexis 4646 (7th Cir.). [N/R]
     Federal prisoner stated a viable claim against the U.S. government under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2675(a), for the alleged wrongful confiscation and destruction of his property by a prison employee. The claim that the prison employee did not follow federal prison regulations in destroying the property before the inmate had a chance to establish his ownership of it, however, did not state a constitutional due process claim when the property was seized from the prison's machine shop rather than the prisoner's cell and the government provided adequate post-deprivation remedies. Bigbee v. United States, No. 05-C-66, 359 F. Supp. 2d 806 (W.D. Wis. 2005). [N/R]
     Federal appeals court orders additional proceedings on whether family members of deceased inmate suffered severe emotional distress, under Oklahoma law, following his death, in a case where family members were awarded $1.1 million in damages under the Federal Tort Claims Act based on alleged outrageous conduct in failing to disclose the battered condition of his body before shipping it to them for burial. Trentadue v. Lee, No. 01-6444, 397 F.3d 840 (10th Cir. 2005). [2005 JB Apr]
     Surviving family of federal prisoner who died from cancer while incarcerated did not have standing under the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq., to pursue claims for emotional distress they allegedly suffered from his death. Gonzalez-Jiminez De Ruiz v. U.S., #03-10274, 378 F.3d 1229 (11th Cir. 2004). [N/R]
     U.S. government could not be sued, under the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq., for negligent hiring, supervision, management, and training of an officer who allegedly raped a female jail inmate while assigned to transport her between correctional facilities. Because the underlying claim arose out of the alleged commission of intentional wrongdoing, the rape, and the FTCA only provides for lawsuits based on negligence, the U.S. government was immune from the plaintiff's claims. Martinez v. U.S., No. CV02-1164, 311 F. Supp. 2d 1274 (D.N.M. 2004). [N/R]
     Prisoner's claim to recover damages for a sweat suit worth $25 allegedly negligently lost in federal prison laundry, brought under the Federal Tort Claims Act, was properly dismissed as frivolous. The amount of damages sought in a complaint pursued as a pauper, federal appeals court rules, is a factor which may be taken into consideration in making a determination of frivolity under the Prison Litigation Reform Act. Nagy v. FMC Butner, No. 03-6736, 2004 U.S. App. Lexis 15042 (4th Cir.). [2004 JB Sep]
     Statute of limitations on former federal prisoner's claim against the U.S. government under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346, 2671 et seq., for negligence in miscalculating his release date began to run when he obtained habeas relief from his continued incarceration, rather than on the date that the miscalculation was allegedly made. Federal appeals court overturns dismissal of lawsuit as time-barred. Erlin v. U.S., No. 00-16986, 364 F.3d 1127 (9th Cir. 2004). [N/R]
     U.S. government could not be held liable under Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346, 2671 et seq., for alleged negligent care provided to a federal prisoner by a doctor who was an independent contractor rather than an employee. Statute does not authorize lawsuits against the government for the actions of independent contractors. Jones v. U.S., 305 F. Supp. 2d 1200 (D. Kan. 2004). [N/R]
     Federal prison officials were not liable for the death of a prisoner beaten to death by two fellow inmates with a fire extinguisher. Their decisions regarding where to house the prisoner and how to protect his safety fell within the "discretionary function" exception to the Federal Tort Claims Act, as those decisions were discretionary and "grounded in policy," since there was no mandatory course of conduct for officials to follow. Montez v. U.S., No. 02-6303, 359 F.3d 392 (6th Cir. 2004). [2004 JB Jun]
     Dismissal of federal prisoner's claim for alleged loss of his property due to negligence of prison employees was proper. No such claim could be brought under Federal Tort Claims Act, and prisoner failed to exhaust available prison grievance procedure as to any civil rights claim. Further, mere negligence leading to loss of property cannot be the basis of a constitutional claim. Steele v. Federal Bureau of Prisons, #02-1492, 355 F.3d 1204 (10th Cir. 2003). [2004 JB May]
     Federal appeals court reinstates prisoner's claim under the Federal Tort Claims Act for negligently caused injuries resulting from him falling from his top bunk after he was given a medical pass entitling him to a bottom bunk. Bultema v. U.S., No. 02-3490, 359 F.3d 379 (6th Cir. 2004). [2004 JB May]
     Mother of federal prisoner shot and killed while residing in a halfway house could not pursue her claims that the Bureau of Prison violated his constitutional right to protection under the terms of the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 1346, 2671 et seq. The FTCA does not waive the sovereign immunity of the U.S. government for constitutional claims, but rather for negligence. Phillips v. Federal Bureau of Prisons, 271 F. Supp. 2d 97 (D.D.C. 2003). [N/R]
     Federal correctional officers were exempt from liability for damages to prisoner's eyeglasses, sent to prison laundry in pocket of his coat, during move from his former cell to administrative segregation. Under Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2680, officers were entitled to immunity under "detention of goods" exception to liability, even though they were not aware that the eyeglasses were in their possession. Bramwell v. U.S. Bureau of Prisons, #02-55516, 348 F.3d 804 (9th Cir. 2003). [N/R]
     U.S. government's alleged negligent failure to supervise experiments in which prisoner's testicles were exposed to high levels of radiation could not be the basis of liability under the Federal Tort Claims Act, since such failure fell within a "discretionary function" exception to the Act. Bibeau v. Pacific Northwest Research Foundation, Inc., No. 01-36147, 339 F.3d 942 (9th Cir. 2003). [2003 JB Nov]
     Prisoner's libel and slander claims against federal prison employee for calling him a liar and a "vexatious litigant with a morally deviant character" could not be pursued under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2671 et seq., since that statute specifically exempts defamation claims. Beckwith v. Hart, 263 F. Supp. 2d 1018 (D. Md. 2003). [N/R]
     No liability for federal prison officials for death of prisoner stabbed by another inmate following a fight over a chess game. Having one officer supervising 219 inmates with violent propensities during a facility-wide move did not, by itself, establish either a violation of civil rights or negligence under the Federal Tort Claims Act, in the absence of any expert testimony or other evidence that this caused the assault. Officer did not act with deliberate indifference to assaulted prisoner's serious medical needs when he summoned help as soon as he learned of the stabbing. Robinson v. U.S. Bureau of Prisons, 244 F. Supp. 2d 57 (N.D.N.Y. 2003). [2003 JB Jul]
     Federal prisoner's civil rights claims concerning alleged confiscation of his wheelchair and destruction of his leg braces, along with discontinuation of his physical therapy following transfer to a new facility, were properly dismissed for failure to exhaust available administrative remedies. Prisoner submitted requests for administrative remedies to warden and then sent new requests to Regional Director instead of submitting appeals to the Regional Director, and no appeals were ever made to the Director of National Inmate Appeals. Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2401(b) claims not filed within 6 months of receiving notice of administrative agency denial were time barred. Smith v. U.S., #02-1172, 53 Fed. Appx. 514 (10th Cir. 2002). [N/R]
     Indiana state law did not impose any duty on the federal Bureau of Prisons to assist a diabetic employee who was involved in a fatal auto accident while driving home after becoming ill at work. Defendant had no responsibility to give him medical assistance, prevent him from leaving, or provide him with transportation home. No liability for employee's death under the Federal Tort Claims Act, 28 U.S.C. Sec. 2680(a). Stockberger v. United States, 225 F. Supp. 2d 949 (S.D. Ind. 2002). [N/R]
     298:155 Trial judge's award of $1.8 million in damages for suicide of pre-trial detainee in federal jail overturned; suicide after six months of incarceration was not foreseeable when prisoner had no known prior history of suicide attempts or thoughts; award of $1.6 million for pain and suffering while hanging to death was excessive when no reasoning for the award was offered by the court. Jutzi- Johnson v. United States, #00-2411, 263 F.3d 753 (7th Cir. 2001).
     289:6 Federal prisoner could not sue doctors employed by the Public Health Service for violation of his constitutional rights; a lawsuit against the U.S. government under the Federal Tort Claims Act was his exclusive remedy for any problems arising from his medical treatment by them. Seminario Navarrete v. Vanyur, 110 F. Supp. 2d 605 (N.D. Ohio 2000).
     [N/R] Defamation exception to the Federal Tort Claims Act (FTCA) barred federal correctional officer's intentional tort claim that was not different in any way from his already dismissed defamation claim. Brumfield v. Sanders, No. 00-3275, 232 F.3d 376 (3rd Cir. 2000).
     258:86 Federal prison did not act negligently in failing to prevent prisoner's exposure to TB bacteria when precautions complied with Centers for Disease Control guidelines. McNeal v. United States, 979 F.Supp. 431 (N.D.W.Va. 1997).
     [N/R] Former prisoner could not bring lawsuit under Federal Tort Claims Act based on her allegedly improper detention in federal custody following expiration of her state sentence; federal prison officials were also entitled to qualified immunity since it was not clearly established that she was entitled to credit against her federal sentence for the time she spent in state custody. Puccini v. U.S., 978 F.Supp. 760 (N.D. Ill. 1997).
     Plaintiff inmate did not "exhaust" his administrative remedies before filing a lawsuit against the U.S. government under the Federal Tort Claims Act; fact that plaintiff's administrative claim was rejected after such a suit was filed did not alter requirement that suit be dismissed as prematurely filed. McNeil v. U.S., 113 S.Ct. 1980 (1993).

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