Opinion
C/A No.: 1:18-995-HMH-SVH
12-30-2019
Steve Jenkins, #07390-104, Plaintiff, v. United States of America, Defendant.
REPORT AND RECOMMENDATION
Steve Jenkins ("Plaintiff"), proceeding pro se and in forma pauperis, brings this action pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2674 ("FTCA"), alleging an improper application of the Bureau of Prison's ("BOP") custody classification procedures while Plaintiff was incarcerated at the Federal Correctional Institution in Estill, South Carolina ("FCI-Estill"), a facility of the BOP. Plaintiff seeks in part to have his custody classification recalculated and back-dated, to be transferred to a lower-security institution in Florida, and monetary damages. [ECF No. 44 at 6].
Plaintiff has informed the court that he has been transferred to "Coleman Correctional Complex Low," in Coleman, Florida. [See ECF No. 69].
This matter comes before the court on the United States of America's ("United States") motion to dismiss, or in the alternative, motion for summary judgment. [ECF No. 62]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the dismissal procedures and the possible consequences if he failed to respond adequately to the United States' motion. [ECF No. 63]. Plaintiff having filed a response [ECF No. 65], the motion is ripe for disposition.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), this matter has been assigned to the undersigned for all pretrial proceedings. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant the United States' motion for summary judgment. I. Factual and Procedural Background
Plaintiff originally asserted this action against two of his former case managers and the Designation and Sentence Computation Center (collectively, "previous Defendants"), pursuant to both the FTCA and Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). On March 4, 2019, the district judge adopted the undersigned's report and recommendation, granting previous Defendants' motion to dismiss and allowing Plaintiff to amend complaint to assert an FTCA claim against the United States, which Plaintiff did. [ECF. No. 44].
BOP's Program Statement 5100.08 ("PS 5100.08"), entitled "Inmate Security Designation and Custody Classification," found at https://www.bop.gov/mobile/policy/, provides guidance regarding classification of inmates in order to "place each inmate in the most appropriate security level intuition that also meets their program needs and is consistent with the Bureau's mission to protect society." PS 5100.08 at 1. Under this classification system, and as relevant here, an inmate receives custody points based on a number of factors that are then matched with an institution having a commensurate security level, with 12-15 points for a male inmate for a low-security institution and 16-23 points for a male inmate for a medium-security institution. Id. at chapter 1, page 2.
A court may take judicial notice of factual information located in postings on government websites. See Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (court may "properly take judicial notice of matters of public record.").
One of the factors considered is an inmate's education level. No points are assigned where an inmate has a verified high school degree or GED, 1 point is assigned where an inmate is enrolled in and making satisfactory progress in a GED program, and 2 points are assigned where the inmate has no verified high school degree or GED and is not participating in a GED program. Id. at chapter 4, page 12. Other factors include an inmate's history of escape and any charges or detainers an inmate may have. Id. at chapter 4, page 10-11.
In 2015, Plaintiff was designated to FCI-Estill, a medium-security institution, with 17 custody points and with security and designation data indicating Plaintiff had not completed a high school degree or GED. [ECF No. 44 at 4, ECF No. 65-1 at 3]. On February 17, 2016, Plaintiff established that he received his high school degree or GED. [65-1 at 4]. On May 24, 2016, Plaintiff's custody classification form indicates 18 custody points, with 3 points applied for a detainer, 1 point applied for a history of escape, and no points applied regarding Plaintiff's education level. [ECF No. 1-1 at 9]. This scoring remained consistent on Plaintiff's next two custody classification forms. [ECF No. 1-1 at 10 (June 27, 2016), ECF No. 65-1 at 12 (November 15, 2016)].
On January 11, 2017, Plaintiff submitted informal resolution documentation form, arguing his score was incorrect in that his presentence investigation report ("PSI") stated he had no detainer and that he should have no points based on history of escape. [ECF No. 44-1 at 1]. Plaintiff stated that based on those mistakes, 4 points should be removed, and he should qualify for a low-security institution. Id.
Plaintiff received response on January 25, 2017, stating in part as follows:
According to the Presentence Investigation Report, prepared on July 15, 2015, you had the following pending charges at the time of sentencing: Carrying a Concealed Firearm and Possession of a Firearm/ Ammunition by a Convicted Felon. You were arrested on February 04, 2015 for the above referenced charges by the Miami-Dade Police Department. You were scheduled for a trial date on July 28, 2015, for those charges. A detainer was lodged on you for the pending charges referenced above on February 11, 2015 from the State of Florida, Miami Dade County. This was prior to your
arrival to FCI Estill on November 10, 2015. . . .[ECF No. 44-1 at 2].
Correctional Systems staff contacted the Miami-Dade Police Department (Warrant Division) on June 17, 2016 for a disposition on the pending charges and made several attempts with no response. Miami-Dade County responded to the inquiry on December 21, 2016 and notified staff of the final disposition. The detainer has now been removed. An inmate's first custody classification will be scored at the first program review following initial classification (approximately 7 months after arrival at an institution). Subsequent reviews will occur at least every 12 months, but may be conducted earlier in order to enable progress toward community activities. As stated before, you arrived at FCI Estill on November 10, 2015. You were scored shortly after your first program review on June 27, 2016. You were re-scored again on November 15, 2016 due to a change in your Inmate Financial Responsibility Plan. Due to the date Correctional Systems received the disposition in your case on December 21, 2016, you were still scored with the detainer. Unit Team has agreed to update your Custody Classification during your next program review in May, 2017. At that time, your detainer will be removed and your points will be adjusted appropriately.
On February 1, 2017, Plaintiff submitted request for administrative remedy, further challenging the points applied for history of escape and detainer. [ECF No. 44-1 at 4]. On March 13, 2017, Plaintiff received response stating in part, "[u]pon review of your record, no documentation finding of guilt related to an escape history was noted. Your Custody Classification Form with be updated by your Unit Team to reflect the removal of both the moderate severity detainer and minor history of escape." [ECF No. 65-1 at 14]. Thereafter, on March 22, 2017, Plaintiff's custody classification form indicates 11 custody points, with no points scored for a detainer, history of escape, or education level. [ECF No. 65-1 at 15].
On April 6, 2017, Plaintiff was involved in a physical altercation with another inmate. [ECF No. 1-1 at 21, ECF No. 44-1 at 8-9]. On April 20, 2017, Plaintiff's custody classification form indicates 18 custody points, with no points scored for a detainer, history of escape, or education level, but with points scored regarding the April 6, 2017 incident. [ECF No. 44-1 at 14].
On September 8, 2017, Plaintiff filed claim for damage, injury, or death, alleging as follows:
I had an escape 10 yrs minor on my custody classification form. Upon review of my record, I was [not] found guilty of escape. When the escape was removed, I was . . [in the] general population without a management variable. Then I got into a fight which caused the injury. Staff negligence.[ECF No. 1-1 at 38].
"A management variable is required when placement has been made and/or maintained at an institution level inconsistent with the inmate's scored security level. Application of a Management Variable requires review and approval by the DSCC Administrator." PS 5100.08 at chapter 5, page 1.
On February 20, 2018, Plaintiff received the following response, in part, regarding this claim:
Your claim has been considered for administrative settlement under the Federal Tort Claims Act (FTCA) . . . . Our investigation reveals your claim of negligence regarding the scoring of your
Custody Classification to be meritless. A pending charge reflected in your Presentence Investigation Report (PSI) was appropriately scored during your initial and second program review, in accordance with Program Statement 5100.08, Inmate Security Designation and Custody Classification, Chapter 6, Page 3. No information had been received or provided to any BOP employee indicating the pending charge was resolved until December 21, 2016.
Although the information that changed the scoring under the detainer item was received in December 2016, nothing in Program Statement 5100.08 required an immediate rescoring of your Custody Classification. Under Program Statement 5100.08, Custody Classification will ordinarily occur every 12 months at a regularly scheduled program review. In your particular case, BOP employees did not wait for 12 months. Rather, your Unit Team agreed within 3 months to update your Custody Classification by removing the detainer item scoring. Your Unit Team also initiated a transfer request to a Low security facility within less than 1 month after the change in your Custody Classification. Furthermore, while your Unit Team subsequently found the Escape item scoring by the Designation and Sentence Computation Center (DSCC) to be in error, even if your Unit Team had discovered this error earlier and removed the 1 point scored under this item from your Custody Classification, nothing would have changed. Your total Custody Classification score would have been 16, rather than 17, which rendered you appropriate for a Medium security institution.
Your claim regarding a Management Variable is equally meritless. A request for a Management Variable in your case did not have to be considered until the change in your Custody Classification on March 22, 2017, which rendered you eligible for a Low security institution. However, it was not necessary to request a Management Variable because you had requested to be transferred to a Low security institution rather than remaining at FCI Estill. Thus, because there was no anticipation that you would remain in a facility inconsistent with your Custody Classification, no Management Variable was required.
Lastly, your claim that the fight between you and another inmate would not have occurred if you had not been improperly incarcerated in a Medium security institution is absurd and lacks any reasonable basis for serious consideration. There is absolutely no proof or evidence that your action of engaging in a fight with another inmate had any correlation to your Custody Classification, Security level, or lack of a management variable.[ECF No. 44-1 at 12-13].
On April 2, 2018, Plaintiff filed inmate requests to staff, requesting information regarding how many points he had been assigned when he was first designated to FCI-Estill and requesting information on how many points an inmate receives for a GED. [ECF No. 65-1 at 6-7]. Plaintiff received responses on April 4 and 9, 2018, informing him that he had been originally designated as matched with a medium-security facility and discussing the scoring employed for an inmate's education level. Id.
Plaintiff alleges BOP employees negligently calculated his custody points, particularly with regard to his education level and history of escape, resulting in Plaintiff being incorrectly designated as a medium, instead of low, security level. [ECF No. 44 at 4-5, see also ECF No. 65 at 5]. II. Discussion
A. Standard on Motion to Dismiss
Dismissal is appropriate under Fed. R. Civ. P. 12(b)(1) where the court lacks subject-matter jurisdiction. A motion to dismiss under Rule 12(b)(1) examines whether a complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiff's burden to prove jurisdiction, and the court is to "regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
B. Standard on Motion for Summary Judgment
The court shall grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;" or "showing . . . that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
C. Analysis
The FTCA waives sovereign immunity and allows suits against the United States for personal injuries caused by government employees acting within the scope of their employment. Under the FTCA, a plaintiff may recover a monetary award from the United States for damages "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope . . . of employment . . . ." 28 U.S.C. § 1346(b)(1). Whether any government employee was negligent is to be determined "in accordance with the law of the place where the act or omission occurred," here, the State of South Carolina. Id.
The FTCA's waiver of immunity is subject to exceptions, including the discretionary function exception. See McMellon v. U.S., 387 F.3d 329, 335 (4th Cir. 2004) (en banc). The discretionary function exception preserves sovereign immunity even if the Government were negligent and even if the government employee abused his or her discretion. See Irvin v. Owens, C/A No. 9:10-1336-RMG, 2012 WL 1534787, at *2 (D.S.C. April 3, 2012). Further, if the discretionary function exception applies, then the claim is outside the limited waiver of immunity created by the FTCA, and the court is without subject matter jurisdiction to adjudicate it. See Medina v. U.S., 259 F.3d 220, 223-24 (4th Cir. 2001).
Courts evaluating the applicability of the discretionary function exception to a claim under the FTCA must engage in a two-prong inquiry. U.S. v. Gaubert, 499 U.S. 315, 323-24 (1991); Berkovitz v. U.S., 486 U.S. 531, 536 (1988). "First, a court considers whether the challenged governmental conduct involves an element of judgment or choice. When a statute, regulation, or policy prescribes a specific course of action, there is no discretion and the exception does not apply." Rich v. U.S., 811 F.3d 140, 144 (4th Cir. 2015) (citation omitted). Furthermore, the exception will not shield a government actor's acts or omissions that run afoul of the express or implied prescriptions of a statute, regulation, or policy. Baum v. U.S., 986 F.2d 716, 720 (4th Cir. 1993). If there is no statute, regulation, or policy that directs the government actor's conduct, or if it affords broad discretion in the implementation of its directives, a court must proceed to the second prong of the inquiry. Id.
The second prong requires a court to "determine whether the judgment was one that the exception was designed to protect, namely, a judgment based on considerations of public policy." Rich, 811 F.3d at 144. The Fourth Circuit has explained that "[t]his requirement is consistent with and mandated by the general purpose underlying the FTCA and the discretionary function exception, i.e., to balance Congress' desire to allow redress of injuries suffered through the negligence of government actors against the need to protect the government from being hobbled in the discharge of its policy-driven duties by tort suits." Baum, 986 F.2d at 720.
The United States argues the discretionary function exception applies in this instance because "Plaintiff has identified no mandatory duty that the Defendant failed to comply with in the regard to his custody classification or his institution placement," citing multiple cases in support of the general proposition that "[t]his Court and others have held that these statutes and policies are clearly permissive and do not mandate that the BOP place an inmate in a particular facility." [ECF No. 62 at 9-10]. However, the United States misapprehends the challenged conduct. Although Plaintiff does seek the result of being placed in a different facility, Plaintiff is not challenging the BOP's refusal to transfer him to another facility. Instead, Plaintiff's primary argument is that the BOP is directed to provide to Plaintiff a certain number of points depending on his education level and a certain number of points based on history of escape, and that the BOP failed to do so, inconsistent with the direction of PS 5100.08. [See ECF No. 44 at 4-5, see also ECF No. 65-1 at 8-11].
The following is provided pursuant to PS 5100.08, Inmate Security Designation and Custody Classification, regarding the calculation of points for an inmate's education level: 9. EDUCATIONAL LEVEL
| 9. EDUCATION LEVEL | 0 = Verified High School Degree/GED | |
|---|---|---|
| 1 = Enrolled in and making satisfactory progress in GED Program | ||
| 2 = No verified High School Degree/GED & not participating in GEDProgram |
Likewise, the BOP is required to enter a certain number of points depending on an inmate's history of escape: 10. HISTORY OF ESCAPE OR ATTEMPTS
| 10. HISTORY OFESCAPE ORATTEMPTS | NONE | >15 YEARS | 10-15 YEARS | 5-10 YEARS | <5 YEARS | ||
| MINOR | 0 | 1 | 1 | 2 | 3 | ||
|---|---|---|---|---|---|---|---|
| SERIOUS | 0 | 3(S) | 3(S) | 3(S) | 3(S) |
Although the United States seems to argue that all decisions made pursuant to an inmate's custody classification are discretionary, the above directions do not provide discretion to BOP employees that would render the discretionary function exception applicable in the present case. At most, BOP employees are directed to reconcile educational level information between the custody classification form and the security designation form; however, this does not grant discretion for the employee to not do as directed, enter the appropriate number of points regarding an inmate's education level and history of escape. See Gray v. United States, 486 F. App'x 975 (3d Cir. 2012) (holding discretionary function exception to FTCA did not bar inmate's claim that corrections officer was negligent in failing to collect razor that cellmate was issued for a shower was used to attack him; because a prison policy specifically prescribed a course of action for prison staff to follow, the task of collecting razors does not involve an element of judgment or choice); Irvin v. Owens, C/A No. 9:10-01336-RMG, 2012 WL 1534787, at *6 (D.S.C. Apr. 30, 2012) (holding prison's code of conduct created nondiscretionary duty to monitor inmate basketball league games); Schingler v. United States, No. 3:13CV1388, 2014 WL 980757, at *5 (M.D. Pa. Mar. 13, 2014) ("we find these acts, pat searching and conducting a metal detector search on inmates taken out of their cells, do not involve an element of choice—it is required by the regulation"); Sash v. United States, No. CIVA 09-2074 (DMC), 2010 WL 1529825, at *9 (D.N.J. Apr. 14, 2010) (holding discretionary function exception to the FTCA does not apply in case alleging misclassification where PS 5100.08 "sets forth the criteria upon which the BOP may assign a [public service factor ("PSF")]" and where "[i]t does not appear that such criteria was met here, and Plaintiff was nonetheless designated as having a Sex Offender PSF"); see also In re Sabin Oral Polio Vaccine Products Liability Litigation, 984 F.2d 124 (4th Cir. 1993) (holding discretionary function exception did not bar action against United States based on Department of Biological Services' approval of polio vaccine in violation of its own regulations).
The instant challenge to the BOP's actions in this case, and in the cases cited above, stand in contrast to the discretionary actions challenged in cases cited by the United States. See Cook v. United States, C/A No. 0:11-2669-RMG-PJG, 2012 WL 5398184, at *4 (D.S.C. Oct. 3, 2012) (holding 18 U.S.C. § 3621(b) "does not 'mandate a specific, non-discretionary course of conduct for the BOP to follow in classifying prisoners and placing them in a particular institution. Instead, [it] give[s] the BOP ample room for judgment by listing a non-exhaustive set of factors for the BOP to consider and leaving to the BOP what weight to assign to any particular factor.'") (citing Cohen v. United States, 151 F.3d 1338, 1343 (11th Cir. 1998) (same)); Bethae v. United States, 465 F. Supp. 2d 575, 583 (D.S.C. 2006) (holding "18 U.S.C. § 4086 as implicitly conferring discretion on the USMS in making decisions regarding Bethea's safekeeping"); Santana-Rosa v. United States, 335 F.3d 39, 43 (1st Cir. 2003) ("the court is constrained to conclude, as a matter of common sense and practicality, that the BOP necessarily exercised discretion—within an atmosphere where there was 'room for choice'—in deciding to assign Bello duties as a kitchen orderly and in determining where and how to store necessary cleaning equipment"); Patel v. United States, 398 F. App'x 22, 29 (5th Cir. 2010) (regarding allegation of exclusion of medical information in transfer document, holding "[d]espite the policy statement's mandate that certain information 'shall' be included, the directive includes an 'element' of discretion; specifically, whether an inmate's medical condition is serious enough to 'affect designation.'"); Irvin, 2012 WL 1534787, at *5 (holding challenged statutory provisions "leave discretion to the BOP officials as to classification decisions and are not mandatory"); Norris v. United States, No. 5:10-CT-3026-FL, 2013 WL 756293, at *6 (E.D.N.C. Feb. 28, 2013) (regarding allegation of negligent placement in certain prison facility, holding "[u]pon a review of the applicable statutes, the court finds that the decision of an inmate's classification and housing status is within the sole discretion of the BOP"); Fields v. United States, No. 5:11-CV-8-OC-29PRL, 2013 WL 4779229, at *5 (M.D. Fla. Sept. 5, 2013) ("As discussed, the duty to safeguard prisoners is set forth in 18 U.S.C. § 4042(a)(2)-(3) and requires that the Bureau of Prisons provide for safekeeping, care, subsistence, and provide protection. The manner in which the Bureau of Prisons fulfills this duty is committed to its discretion.").
Having found the discretionary function inapplicable, the court next addresses Plaintiff's negligence claim. To prove negligence in South Carolina, a plaintiff must show (1) that defendant owed plaintiff a duty; (2) such duty was breached; and (3) damage resulted from the breach of the duty. Bloom v. Ravoira, 339 S.C. 417, 422 (S.C. 2000). The duty owed under the FTCA is that of "reasonable care" and "ordinary diligence." Pendergrass v. U.S., C/A No. 11-2706-PMD-PJG, 2013 WL 518842, at *2 (D.S.C. Feb. 12, 2013) (assessing medical malpractice claim); Harley v. U.S., C/A No. 4:08-820-HMH-PJG, 2009 WL 187588, at *4 (D.S.C. Jan. 26, 2009) (same).
The United States argues that Plaintiff's FTCA claim for negligent application of custody classification procedures must be dismissed because Plaintiff "has not identified any corresponding duty under state law." [ECF No. 62 at 5-6]. In support, the United States cites Corral v. United States, No. CIV.A. 12-6220 JBS, 2013 WL 4540919, at *4 (D.N.J. Aug. 27, 2013), holding that "[t]o the extent Plaintiff seeks to assert a claim based upon certain federal officials' negligent failure to comply with the administrative remedy procedures, this Court has failed to locate any corresponding duty under New Jersey tort law, and Plaintiff has not identified any."
It is unnecessary for the court to resolve this issue. Even assuming Plaintiff's claim is viable under South Carolina law, Plaintiff's negligence claim fails notwithstanding because Plaintiff has failed to put forth specific facts showing that there is a genuine issue for trial regarding (1) whether BOP officials breached any duty or (2) whether any damage resulted from that breach.
First, Plaintiff argues his custody score was incorrectly calculated regarding his education and history of escape. [ECF No. 44 at 4-5]. Regarding the former, Plaintiff has submitted evidence that he received a high school diploma on August 1, 1996. [ECF No. 65-1 at 5]. However, Plaintiff has not submitted evidence that this degree or equivalent was verified until February 17, 2016. [ECF No. 1 at 6, ECF No. 65-1 at 5]. Plaintiff has also submitted evidence that the next custody classification form following this verification, on May 24, 2016, reflects correct scoring of a verified degree. [ECF No. 1-1 at 9]. Plaintiff has not, however, argued or provided evidence that this limited elapse of time breached a duty owed by BOP officials to Plaintiff.
The court additionally notes that there is no evidence in the record that Plaintiff followed administrative procedures regarding improper scoring based on his education level, and Plaintiff did not mention improper scoring based on education level in his administrative tort claim filed on September 8, 2017. [ECF No. 1-1 at 38]. At most, the record indicates Plaintiff filed request to staff in April 2018, asking how many points he, or any inmate, would receive for a GED. [See ECF No. 65-1 at 6-7]. Failure to exhaust the administrative procedure established by the FTCA operates as a complete bar to any tort claims raised against the United States in this court. See 28 U. S.C. § 2401(b).
Regarding the alleged inaccurate scoring of his history of escape, Plaintiff has put forth sufficient evidence that this was error on the part of BOP employees. However, Plaintiff employed appropriate administrative procedures regarding this issue, which was resolved in his favor via these procedures. The record shows Plaintiff submitted informal resolution documentation, [ECF No. 44-1 at 1], request for administrative remedy, id. at 4, and was granted the relief sought, receiving response that "[u]pon review of your record, no documentation finding of guilt related to an escape history was noted. Your Custody Classification Form with be updated by your Unit Team to reflect the removal of both the moderate severity detainer and minor history of escape." [ECF No. 65-1 at 14]. Thereafter, Plaintiff's custody classification form indicates 11 custody points, with no points scored for a detainer, history of escape, or education level. Id. at 15.
To the extent Plaintiff' challenges the calculation of his score regarding the issue of the detainer [see ECF No. 41 at 1-2], there is no evidence in the record that BOP employees incorrectly calculated Plaintiff's score based on this detainer [see ECF No. 44-1 at 2].
Second, a breach of duty is shown where it is "foreseeable that one's conduct may likely injure the person to whom the duty is owed." Horne v. Beason, 331 S.E.2d 342, 344 (S.C. 1985). In the event of a breach of duty, the "damages allegedly sustained must be shown to have been proximately caused, i.e. causally connected, to the breach of duty in order to warrant a recovery." Id. Additionally, under South Carolina law, "'[n]egligence is not actionable unless it is a proximate cause of the injuries, and it may be deemed a proximate cause only when without such negligence the injury would not have occurred or could have been avoided.'" Hanselmann v. McCardle, 267 S.E.2d 531, 533 (S.C. 1980) (quoting Hughes v. Children's Clinic, P.A., 237 S.E.2d 753, 757 (S.C. 1977)).
Here, it appears Plaintiff argues that because his custody score was incorrectly calculated, he was wrongfully designated to FCI-Estill, and if he had been correctly designated, he would have never gotten into a fight with another inmate. [See ECF No. 1 at 8, ECF No. 1-1 at 21, ECF No. 44 at 5]. However, the fight that occurred is not a foreseeable result of any action alleged by Plaintiff to have been taken by BOP employees. To the extent Plaintiff is arguing he was injured by being wrongfully designated to a medium-security institution, generally, or FCI-Estill, specifically, Plaintiff has failed to state a cognizable injury. See 28 U.S.C. § 1346(b)(2) ("No person convicted of a felony who is incarcerated while awaiting sentencing or while serving a sentence may bring a civil action against the United States . . . for mental or emotional injury suffered while in custody without a prior showing of physical injury . . . ."); Ajaj v. United States, 479 F. Supp. 2d 501, 550 (D.S.C. 2007) (finding that the plaintiff's placement in the Special Housing Unit, standing alone, was not an injury as required by the FTCA).
In sum, the United States is entitled to summary judgment on Plaintiff's FTCA claim. III. Conclusion and Recommendation
Given the recommendation made above, it is unnecessary to address Plaintiff's "request for default." [See ECF No. 70].
For the foregoing reasons, the undersigned recommends the United States' motion for summary judgment be granted. [ECF No. 62].
IT IS SO RECOMMENDED. December 30, 2019
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).