James Grandy v. United States of America

OPPOSITION to MOTION for Partial Summary Judgment as to Liability 39

C.D. Cal.June 21, 2010

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ANDRÉ BIROTTE JR. United States Attorney LEON W. WEIDMAN Assistant United States Attorney Chief, Civil Division IRA A. DAVES Assistant United States Attorney California Bar No. 156724 Room 7516, Federal Building 300 North Los Angeles Street Los Angeles, California 90012 Telephone: (213) 894-2443 Fax: (213) 894-7819 E-Mail: Ira.Daves@usdoj.gov Attorneys for Federal Defendant United States of America UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION JAMES GRANDY, ) ) Grandy, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) ) Defendant. ) ____________________________ NO. CV 09-1270-JHN(JTLx) Date: July 12, 2010 Time: 2:00 p.m. Hon. Jacqueline H. Nguyen United States District Judge DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT Case 2:09-cv-01270-JHN-RZ Document 46 Filed 06/21/10 Page 1 of 28 Page ID #:567 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i TABLE OF CONTENTS Page INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . 2 I. ASSAULT ON GRANDY . . . . . . . . . . . . . . . . . . . . 2 II. SECURITY AT THE HOUSING UNIT ENTRANCES . . . . . . . . . . 4 III. SECURITY AT ENTRANCE TO UNIT 6A ON NOVEMBER 25, 2006 . . . 8 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 11 I. THIS ACTION IS JURISDICTIONALLY BARRED BY THE DISCRETIONARY FUNCTION EXCEPTION TO THE FTCA. . . . . . 11 A. The Discretionary Function Exception . . . . . . . 12 B. The United States Exercised Permissible Discretion In Its Efforts to Provide For Inmate Security. . . . . . . . . . . . . . . . . . 15 1. Alleged Failure to Employ Metal Detector . . . 17 2. Alleged Failure to Conduct Adequate Search . . 19 3. Alleged Failure to Monitor Unit 6A After Entry . . . . . . . . . . . . . . . . . . . . 20 II. TO THE EXTENT THAT GRANDY’S CLAIMS ARE NOT BARRED BY THE DISCRETIONARY FUNCTION EXCEPTION, THEY FAIL ON THE MERITS. . . . . . . . . . . . . . . . . . . . . . . . . 20 A. Defendant Breached No Duty Owed to Grandy. . . . . 20 B. Defendant’s Acts Or Omissions Did Not Cause Grandy’s Injuries. . . . . . . . . . . . . . . . . 23 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 24 Case 2:09-cv-01270-JHN-RZ Document 46 Filed 06/21/10 Page 2 of 28 Page ID #:568 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii TABLE OF AUTHORITIES FEDERAL CASES Alfrey v. United States, 276 F.3d 557 (9th Cir. 2002) . . . . . . . . . . . 16, 17 Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979) . . . . . . . . . . . . . . . . 17 Berkovitz v. United States, 486 U.S. 531, 108 S. Ct. 1954, 100 L. Ed. 2d 531 (1988) . . . . . . . . . . . 12, 13, 14 Calderon v. United States, 123 F.3d 947 (7th Cir. 1997) . . . . . . . . . . . 16, 17 Childers v. United States, 40 F.3d 973 (9th Cir. 1994)__U.S. __, 115 S.Ct. 1821, 131 L.Ed 2d . . . . . . . . . . . . . . 14 Cohen v. United States, 151 F.3d 1338 (11th Cir. 1998),526 U.S. 1130 (1999) . . 16 In re Consolidated Atmospheric Testing, 820 F.2d 982 (9th Cir. 1987), 485 U.S. 905 (1988) . . . . . . . . . . . . . . . . . 14 Dalehite v. United States, 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427 (1953) . 11, 14 Fang v. U.S., 140 F.3d at 1241 . . . . . . . . . . . . . . . . . 18, 20 General Dynamics Corp. v. United States, 139 F.3d 1280 (9th Cir. 1998) . . . . . . . . . . . . . 14 Kennewick Irrigation District v. United States, 880 F.2d 1018 (9th Cir. 1989) . . . . . . . . . . . . . 13 Lesoeur v. United States, 21 F.3d 965 (9th Cir. 1994) . . . . . . . . . . . . . . 13 Mitchell v. United States, 149 F. Supp. 2d 1111 (D. Ariz. 1999) . . . . . . . . . 16 Montez v. United States, 359 F.3d 392 (6th Cir. 2004) . . . . . . . . . . . . . 16 Case 2:09-cv-01270-JHN-RZ Document 46 Filed 06/21/10 Page 3 of 28 Page ID #:569 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii Ramirez v. United States, 567 F.2d 854 (9th Cir. 1977) . . . . . . . . . . . . . 12 United States v. Gaubert, 499 U.S. 315, 111 S. Ct. 1267, 113 L. Ed. 2d 335 (1991) . . . . . . 2, 12, 13, 14, 15, 18 United States v. Kubrick, 444 U.S. 111, 100 S. Ct. 352, 62 L. Ed. 259 (1979) . . 11 United States v. Mitchell, 445 U.S. 535, 100 S. Ct. 1349, 63 L. Ed. 607 (1980) . . 11 United States v. Neustadt, 366 U.S. 696, 81 S. Ct. 1394, 6 L. Ed. 614 (1961) . . . 11 United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 1046 S. Ct. 2755, 91 L. Ed. 2d 660 . 12, 14 United States v. Sherwood, 312 U.S. 584, 61 S. Ct. 767 (1954) . . . . . . . . . . 11 Valdez v. United States, 56 F.3d 1177 (9th Cir. 1995) . . . . . . . . . . . . . 14 Weissich v. United States, 4 F.3d 810 (9th Cir. 1993) . . . . . . . . . . 13, 18, 20 STATE CASES Schrimsher v. Bryson, 58 Cal. App. 3d 660, 130 Cal. Rptr. 125 (1976) . . . . 23 State v. Superior Court of Sacramento County, 150 Cal. App. 3d 848, 197 Cal. Rptr. 914 (1984) . . . . 23 Werkman v. Howard Zink Corp., 97 Cal. App. 2d 418, 218 P.2d 43 (1950) . . . . . . . . 23 FEDERAL STATUTES AND RULES 18 U.S.C. § 4042 . . . . . . . . . . . . . . . . . . . . . . 16 28 U.S.C. § 1346(b) . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 2680(a) . . . . . . . . . . . . . . . . 2, 11, 12, 13 28 C.F.R. § 552.10 . . . . . . . . . . . . . . . . . . . 5, 19 Fed.R.Evid. 602 & 701 . . . . . . . . . . . . . . . . . . . . 22 Case 2:09-cv-01270-JHN-RZ Document 46 Filed 06/21/10 Page 4 of 28 Page ID #:570 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Grandy’s Complaint also alleges negligence in the control of kitchen tools. He has apparently abandoned that claim. INTRODUCTION This negligence action against Defendant United States (“Defendant”) is brought by Plaintiff James Grandy (“Grandy”), a federal prisoner at the United States Penitentiary in Victorville, California. Grandy alleges that negligence on the part of a prison official resulted in his being assaulted by an out-of-bounds inmate, in violation of the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §1346(b) et seq. Specifically, Grandy alleges that his assailant, Chevon Wiggins (“Wiggins”), was able to stab him because the unit officer on duty, Ray Raygoza (“Officer Raygoza”), was negligent in operating a metal detector at the entrance to his housing unit. (Complaint at ¶8; Grandy’s Depo. 11:5-13, pertinent pages of which are attached to the Declaration of Ira A. Daves, filed in support of Defendant’s Summary Judgment Motion; Pls. Motion at 2) Grandy contends that proper operation of the metal detector would have revealed Wiggins to be a non-resident and, further, would have uncovered the weapons Wiggins used in the assault. (Id.) Grandy also claims that Defendant negligently failed to monitor who was inside the unit after Wiggins had gained entry. (Pls. Motion at 6)1 Because Grandy’s claims, as set forth in his Motion for Partial Summary Judgment, arise out of alleged negligence in the performance of discretionary acts or omissions, this Court lacks subject matter jurisdiction, pursuant to the discretionary Case 2:09-cv-01270-JHN-RZ Document 46 Filed 06/21/10 Page 5 of 28 Page ID #:571 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 In United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991), the Supreme Court explained that the purpose of the discretionary function exception is to “prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” Id. at 323. 3 Defendant has filed its own motion for summary judgment, also presently set for hearing on July 12, 2010. Defendant predicated its motion primarily on Grandy’s failure to raise a genuine issue of material fact. However, inasmuch as 28 U.S.C. §2680(a) bars Grandy’s Complaint, it both suffices to defeat Grandy’s Motion For Partial Summary Judgment and constitutes an additional ground for rendering judgment in favor of the United States. 4 For the convenience of the Court, Defendant restates herein the Statement of Facts set forth in its own Motion For Summary Judgment or, in the Alternative, Partial Summary Judgment. The Declarations of Ira A. Daves and Shawn Grant, filed in support of Defendant’s Motion, will not be re-filed. However, evidence contained therein will be reference in this Opposition. 2 function exception to the FTCA, 28 U.S.C. §2680(a).2 Alternatively, to the extent that Grandy’s claims are not barred by the discretionary function exception, Grandy fails to present admissible evidence sufficient to raise genuine issues of material fact or to establish liability as a matter of law on any of his claims. Consequently, Grandy’s Motion should be denied, and judgment should be entered in favor of Defendant, as a matter of law.3 STATEMENT OF FACTS4 I. ASSAULT ON GRANDY At approximately 12:45 p.m. on November 25, 2006, Grandy was assaulted by Wiggins. (Grant Dec. ¶ 2, referring to paragraph 2 Case 2:09-cv-01270-JHN-RZ Document 46 Filed 06/21/10 Page 6 of 28 Page ID #:572 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 One month prior to the November 2006 assault on him, Grandy was himself disciplined for possession of a homemade weapon. (Grant Dec. ¶ 7) Approximately two years after the attack on him, Grandy and three other inmates entered the cell of another inmate and assaulted him by stabbing him in the head. (Id.) The victim resided in a different housing unit, and Grandy and his fellow assailants traveled out-of-bounds in order to pull off the attack. (Id.) Several months later, Grandy was written up again for possession of a weapon. (Id.) Finally, on February 19, 2009, a staff member found Grandy scratching the word “CRIP” into a computer station in the Electronic Law Library. (Id.) Grandy admitted to the charge during a Unit Discipline Committee hearing on February 21, 2009. (Id.) 3 of the Declaration of Shawn Grant, filed concurrently herewith.) Wiggins resided in a different housing unit in the Penitentiary. (Id.) After gaining entry into Grandy’s housing unit (“Unit 6A”), Wiggins stabbed Grandy multiple times in his upper torso. (Id.) In the aftermath of the incident, prison officials recovered two metal weapons, one of which appeared to be a sharpened butter knife. (Id. ¶ 5) Wiggins was not assigned to Unit 6A, a general housing unit in which Grandy resided; he had no prior official authorization to enter the unit and was found “out-of-bounds” when he assaulted Grandy. (Id.) The evidence is undisputed that the attack was a random act of violence, related to gang activity at the Penitentiary.5 At his deposition, Grandy denied knowing Wiggins prior to the assault; and there is no evidence that Wiggins knew Grandy before assaulting him. (Id. ¶ 6; Grandy Depo. 38:16-18) There is no evidence in the record that prison staff knew that Grandy was at risk of attack by Wiggins or any other inmate. (Grant Dec. ¶ 6; Raygoza Depo. 44:20-45:1; Grandy Depo. 42:6-17) In fact, there Case 2:09-cv-01270-JHN-RZ Document 46 Filed 06/21/10 Page 7 of 28 Page ID #:573 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 is no evidence that Grandy had been threatened before the attack or had reason to believe that he was in any kind of danger. (Grandy Depo. 40:4-6) II. SECURITY AT THE HOUSING UNIT ENTRANCES The Penitentiary in Victorville was a high security facility, housing the most violent level of inmate. (Id. ¶ 8) Limitations on resources played heavily into the Penitentiary’s ability to monitor the inmate population in various areas, including the entrances to the inmate housing units. (Id.) Prison staff focused resources on locations where inmates worked, resided, and received medical attention. (Id.) The process of providing internal security, including decisions about the appropriate level and frequency of inmate monitoring during open movements, took into account movement needed to achieve inmate rehabilitative goals and to safeguard constitutional rights. (Id. ¶ 9) Freedom of movement within the general prison population was one aspect of the rehabilitative effort. (Id.) Prison officials determined that socialization objectives could only be met by allowing inmates, other than a small minority of the federal inmate population, the opportunity to move relatively freely throughout their housing units and other areas of the prison during normal daytime hours. (Id.) Inmates and staff at the Penitentiary in Victorville entered general housing units, such as Unit 6A, through a “sally port” area that was monitored by one unit officer and two video cameras. ((Id. ¶ 10; Grant Depo. 13:1-7) The sally port Case 2:09-cv-01270-JHN-RZ Document 46 Filed 06/21/10 Page 8 of 28 Page ID #:574 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 consisted of: (1) an outside door or slider that was operated by the control center, (2) a small room containing a metal detector, and (3) an inner door. (Grant Dec. ¶ 10) Pursuant to BOP policy and practice, inmates entering the unit through the sally port area passed through the metal detector, which was manned by the unit officer on duty. (Grant Dec. ¶ 11; Grant Depo. 13:13-14:2) Resident inmates were permitted to traverse the sally port area, through the metal detector, during routinely scheduled, controlled “open movements.” (Grant Dec. ¶ 11) During an open movement, which typically lasted for approximately ten (10) minutes, inmates were allowed to access other departments within the Penitentiary, such as the Commissary, Recreation Yard, and Dining Hall. (Id.) The unit officer was posted at the unit entrance during open movements. (Id.) As much as reasonably possible, it was the responsibility of the unit officer to ensure that all inmates entering the unit passed through the metal detector. ((Id.; Grant Depo. 25:13-15) Absent a metal detector alert, BOP policy and practice gave officers manning the housing unit entrances wide discretion as to when and how to search inmates for weapons. (Grant Dec. ¶ 12) Specifically, Title 28 C.F.R. § 552.10 authorized the BOP to conduct “searches of inmates and of inmate housing and work areas” and, moreover, directed staff to “employ the least intrusive method of search practicable, as indicated by the type of contraband and the method of suspected introduction.” (Id. ¶ Case 2:09-cv-01270-JHN-RZ Document 46 Filed 06/21/10 Page 9 of 28 Page ID #:575 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 12; Request for Judicial Notice) The regulation did not mandate that prison officials conduct housing entrance searches in a particular manner. (Id.) To the contrary, the regulation explicitly conferred discretion on prison staff to decide how to search inmates in view of the particular threat presented and the practicalities of the situation. (Id.) Furthermore, the judgment of unit officers about when and how extensively to search inmates and their cells was informed by their professional training and experience. (Grant Dec. ¶ 13) That judgment involved a balancing of all the potential risks that inevitably arise in a prison setting -- where antisocial persons co-exist and sometimes engage in violent, explosive conduct that is often difficult to predict -- against the inmates’ interest in being free from overly intrusive searches. (Id.) Although unit officers conducted routine pat searches of inmates in order to deter the flow of contraband, for example, they had discretion in determining whom to pat down and under what circumstances. (Id.) It was against policy and practice for non-resident inmates to enter other housing units without the express permission or authorization of prison officials. (Id. ¶ 14; Allison Depo. 28; Grant Depo. 12:16-21) Unit officers routinely prevented inmates from entering housing units to which they were not assigned. (Grant Dec. ¶ 15) Nevertheless, transgressions did occur, from time to time. (Id.) Identifying and preventing non-resident inmates from entering other housing units was a difficult job, Case 2:09-cv-01270-JHN-RZ Document 46 Filed 06/21/10 Page 10 of 28 Page ID #:576 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 for several reasons. (Id. ¶ 16) First, there were over one hundred fifteen inmates assigned to each unit, and the unit officer was responsible for many other duties, such as searching cells, conducting rounds, and performing counts. (Id.) Second, unit officers were often unfamiliar with inmates residing in units they were charged with watching because the officers were frequently rotated among units, especially if they were substituting for absent employees. (Id.) Third, inmates often wore clothing, such as coats and caps, that sometimes obscured their faces and bodies. (Id.) Finally, depending upon the day, large numbers of inmates entered and left the unit in rapid succession, which could further complicate the process of inmate identification. (Id.) Given the difficulties inherent in tracking inmates during open movements, randomly scheduled census counts were conducted after open movements ended and the unit doors were secured so as to double-check the location of inmates and determine if any were out-of-bounds. (Id. ¶ 17) Transgressions were taken seriously, and inmates caught out-of-bounds were subject to discipline. (Id. ¶ 18) Typically, an inmate caught out-of-bounds would be issued an incident report. (Id.) Although possible, actual inmate-on-inmate violence attributable to inmates being out-of- bounds was a rare occurrence at the Penitentiary. (Id. ¶ 19) As much as reasonably possible, given the number of inmates entering and leaving the unit at any particular time as well as unanticipated distractions, it was the responsibility of the unit Case 2:09-cv-01270-JHN-RZ Document 46 Filed 06/21/10 Page 11 of 28 Page ID #:577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 officer manning the entrance to identify and deny access to any non-resident inmates attempting to enter the unit without permission. (Grant Dec. ¶ 20; Grant Depo. 12:16-21; 14:3-20; 31:16-21) It was also the responsibility of the unit officer to ensure that the entrance to the unit was locked at the conclusion of the open movement and, subsequent to movement, conduct a census check to ensure that only residents or authorized non- resident inmates were present in the unit. (Grant Dec. ¶ 20; Grant Depo. 15:6-15) However, there was no requirement that the unit officer, or any staff member, maintain constant eye contact on every inmate during open movements. (Grant Dec. ¶ 20) III. SECURITY AT ENTRANCE TO UNIT 6A ON NOVEMBER 25, 2006 The unit officer on duty at Unit 6A at the time of the assault was Raygoza. (Id. ¶ 22; Raygoza Depo. 43:10-12) Officer Raygoza assumed his duties on November 25, 2006 at 8:00 a.m., and he manned his station during the 9:00 a.m. and Noon open movements that preceded the assault on Grandy. (Id.) Officer Raygoza conducted a census check beginning at 10:00 a.m. on the date of the incident. (Id. ¶ 27) Unit 6A went on “lockdown” following the assault on Grandy at 12:44 p.m. (Id.) It is undisputed that Wiggins did not have prior official authorization to enter Unit 6A and was found to have been out-of- bounds when he assaulted Grandy. (Id. ¶ 23) It is further undisputed that Wiggins entered Unit 6A on Officer Raygoza’s watch. (Raygoza Depo. 67:1-3) There are no first-hand accounts regarding the particulars of Wiggins entry: there is no Case 2:09-cv-01270-JHN-RZ Document 46 Filed 06/21/10 Page 12 of 28 Page ID #:578 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 Officer Raygoza testified that, consistent with the policy prohibiting non-resident inmates from entering other housing units without authorization, inmates were not required to go to a “specific place” during an open move but could travel anywhere they wanted. (Raygoza Depo. 40:20-42:6) He further corroborated that inmates were “not supposed to” enter housing units in which they did not reside. (Raygoza Depo. 41:18-42:6) There is no evidence that non-resident inmates regularly or even occasionally entered Unit 6A under Officer Raygoza’s watch without his knowledge or permission, without some other official authorization, or without going through the metal detector. (Id. 69:6-9; Grant Dec. ¶ 24; Raygoza Depo. 113:9-15; 126:21-127:2) 9 testimony as to whether Officer Raygoza stopped and questioned Wiggins prior to permitting him into the unit, and there is no testimony as to whether Wiggins presented to Officer Raygoza some form of written or verbal request or prior authorization to enter. Officer Raygoza testified that inmates entering Unit 6A were required to pass through the metal detector, which he operated on the day in question, and there is no evidence that Officer Raygoza permitted Wiggins to enter Unit 6A without requiring him to pass through the metal detector. (Id. ¶ 23; Raygoza Depo. 113:9-15; 126:21-127:2) There is no evidence that Officer Raygoza had prior knowledge of the gang tensions that led to Wiggins’ attack on Grandy. (Id. ¶ 25) All that is known is that Officer Raygoza permitted Wiggins entry, perhaps assuming in error that he was a resident or otherwise had official authorization or some legitimate reason to enter. (Id. ¶ 25)6 As for the presence of the weapons used by Wiggins in the attack on Grandy, it is undisputed that, when non- resident Wiggins entered Unit 6A, the metal detector did not alert. (Grant Dec. ¶ 26) The metal detector was in place at the Case 2:09-cv-01270-JHN-RZ Document 46 Filed 06/21/10 Page 13 of 28 Page ID #:579 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 time and there is no evidence that the metal detector malfunctioned that afternoon. (Id.; Raygoza Depo. 55:15-17) It is undisputed that the metal weapons recovered after the attack would have triggered the metal detector, assuming that it was properly functioning that afternoon. (Grant Dec. ¶ 26) And no witness reported seeing Wiggins enter the unit with weapons on his person. (Id.) Officer Raygoza testified that the weapon used to attack Grandy “could have easily been inside the housing unit already when inmate Wiggins went into the unit.” (Raygoza Depo. 54:10-14) Another inmate, Woodie Ashfield (“Ashfield”), suggested at his deposition that, on the day in question, Officer Raygoza permitted certain inmates to walk around the metal detector. He testified that, during the Noon open movement, he observed Officer Raygoza monitoring the movement of the inmates as they entered the unit. (Ashfield Depo. 5:18-21; 15:9-13) Ashfield provided an eye-witness account in which he recalled seeing Officer Raygoza positioned at the door just outside the building “watching everybody that comes in the unit.” (Ashfield Depo. 17:12-18:6) He further recalled that he and Officer Raygoza “locked eyes.” (Id.) Ashfield testified that, when he entered the unit, he himself did not pass through the metal detector, that he “always” walked past it, and that “[n]obody really goes through it if they don’t have to.” (Id. 20:14-20; 21:6-13) Finally, Ashfield added that he observed non-resident Wiggins walk past Officer Raygoza as he entered the unit. (Ashfield Depo. 12:11-13:4; 13:20-14:4) Tellingly, Ashfield, a resident of Unit 6A, did not testify Case 2:09-cv-01270-JHN-RZ Document 46 Filed 06/21/10 Page 14 of 28 Page ID #:580 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 that he saw Wiggins, a non-resident, go around the metal detector, much less that he did so while Officer Raygoza was watching. Moreover, this inmate admitted that, as a matter of practice, Officer Raygoza was vigilant to metal detector alerts and would routinely instruct inmates to go through the metal detector again if it alerted. (Id. 16:15-17:5) Grandy did not depose Wiggins about how he was able to obtain entry into Unit 6A. ARGUMENT I. THIS ACTION IS JURISDICTIONALLY BARRED BY THE DISCRETIONARY FUNCTION EXCEPTION TO THE FTCA. The FTCA confers exclusive jurisdiction upon district courts of civil actions or claims against the United States, for money damages and, as such, constitutes a limited waiver of the United States' sovereign immunity. United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 62 L.Ed. 259 (1979); Dalehite v. United States, 346 U.S. 15, 18, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). The waiver is subject to a number of express exceptions, which are enumerated in 28 U.S.C. § 2680. Included among these is the discretionary function exception, 28 U.S.C. § 2680(a). As conditions of the waiver of sovereign immunity, these exceptions define the court's jurisdiction to entertain the suit. United States v. Mitchell, 445 U.S. 535, 100 S.Ct. 1349, 63 L.Ed. 607 (1980) (subsequent history omitted); United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767 (1954), and must be complied with strictly. Kubrick, 444 U.S. at 117-18, 100 S Ct. 352, 62 L.Ed. 259. The applicability of these exceptions is to be determined in accordance with federal law. United States v. Neustadt, 366 Case 2:09-cv-01270-JHN-RZ Document 46 Filed 06/21/10 Page 15 of 28 Page ID #:581 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 U.S. 696, 705-706, 81 S.Ct. 1394, 6 L.Ed 614 (1961); Ramirez v. United States, 567 F.2d 854, 856 (9th Cir. 1977). A. The Discretionary Function Exception The discretionary function exception of the FTCA precludes the imposition of liability for conduct "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 Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). Application of this exception is determined by a two-part test. Gaubert, 499 U.S. at 323-24, 111 S.Ct. 1267, 1274, 113 L.Ed.2d 335; Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988). First, the conduct at issue must be discretionary in that it must "involve[] an element of judgment or choice." Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958, 113 L.Ed.2d 335. This inquiry is the same regardless of the status of the actor. United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 813 (1984), 1046 S.Ct 2755, 91 L.Ed.2d 660; Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958, 113 L.Ed.2d 335. The discretionary function exception protects the conduct of federal employees at all levels of government. Gaubert, 499 U.S. at 323-24, 111 S.Ct. at 1275, 113 L.Ed.2d 335. Judgment or choice is absent "when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow" because then "the employee has no rightful option but to adhere to the directive." Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958-59, 100 L.Ed.2d 53. Where judgment or Case 2:09-cv-01270-JHN-RZ Document 46 Filed 06/21/10 Page 16 of 28 Page ID #:582 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 choice is available, there is nothing that limits its permissible exercise to “policymaking or planning functions.” Gaubert, 111 S.Ct. at 1275, 111 S.Ct. 1267, 113 L.Ed.2d 335. Second, "assuming that the challenged conduct involves an element of judgment, a court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield." Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958-59, 100 L.Ed.2d 531. The exception protects those discretionary actions or decisions which are based on considerations ... “grounded in social, economic and political policy.” Id. at 537, 108 S.Ct. at 1958-59, 100 L.Ed.2d 531. Conscious consideration of policy factors by the government agent is not necessary. See Gaubert, 499 U.S. at 325-26, 111 S.Ct. at 1275, 100 L.Ed.2d 531. Rather, the question is "the nature of the actions taken and whether they are susceptible to policy analysis." Id. “When a 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.” Weissich v. United States, 4 F.3d 810, 814 (9th Cir. 1993), cert. denied, 512 U.S. 1219 (1994). It follows that §2680(a), which applies both to the exercise of discretion and the failure to exercise discretion, is applicable even when a federal employee fails to consider or balance important policy concerns in reaching a decision. See Lesoeur v. United States, 21 F.3d 965 (9th Cir. 1994); see also Kennewick Irrigation Dist. v. United States, 880 F.2d 1018 (9th Case 2:09-cv-01270-JHN-RZ Document 46 Filed 06/21/10 Page 17 of 28 Page ID #:583 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 Factual issues concerning negligence are irrelevant to the threshold jurisdictional issue of whether an agency’s actions are shielded from liability by the discretionary function exception, and the exception applies even when the discretionary acts themselves constitute negligence. Moreover, it is of no consequence that certain aspects of the agency's conduct may not be discretionary if the conduct ultimately and necessarily challenged by the suit is discretionary. General Dynamics Corp. v. United States, 139 F.3d 1280 (9th Cir. 1998). 14 Cir. 1989) (holding that, where decisions are grounded in social, economic or political policy judgments, the discretionary function exception is presumed to apply whether or not the government considered these factors and made a conscious decision thereupon); In re Consolidated Atmospheric Testing, 820 F.2d 982 (9th Cir. 1987), cert. denied, 485 U.S. 905 (1988) (same); Valdez v. United States, 56 F.3d 1177 (9th Cir. 1995) (same); Childers v. United States, 40 F.3d 973 (9th Cir. 1994), cert. denied, U.S. , 115 S.Ct. 1821, 131 L.Ed 2d. 744 (1995) (same). In enacting the discretionary function exception, "Congress wished to prevent judicial 'second guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." Varig Airlines, 467 U.S. at 814, 1046 S.Ct. 2755, 91 L.Ed.2d 660; Berkovitz, 486 U.S. at 537, 108 S.Ct. 1954, 100 L.Ed.2d 335; Gaubert, 499 U.S. 315, 111 S.Ct. at 1273, 113 L.Ed.2d 335. If the conduct satisfies both tests, then the discretionary function exception bars tort claims based on that conduct, including negligence claims. See Dalehite, 346 U.S. at 34, 73 S.Ct. 956, 97 L.Ed. 1427.7 B. The United States Exercised Permissible Discretion Case 2:09-cv-01270-JHN-RZ Document 46 Filed 06/21/10 Page 18 of 28 Page ID #:584 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 Because Grandy’s Motion provides more clarity regarding his allegations of negligence, Defendant is able to raise the discretionary function exception’s bar to this action for the first time in response to Grandy’s Motion. 6 Grandy’s Motion does not cite to the evidence attached in support of the claims advanced therein. Nor are Grandy’s purported uncontroverted facts supported by the evidence in that many of the conclusions drawn or statements attributed are simply not set forth in the cited Exhibits. For example, Grandy alleges that at Exhibit C, pp. 40-43, Officer Raygoza stated that inmates could move from other housing units to unit 6A as long as they were searched and that this statement misconstrues BOP policy. First, Officer Raygoza stated that inmates were not permitted such free movement and had to be subjected to a search. See p. 42 of Raygoza Deposition, omitted by Grandy, and attached to the Daves Declaration. Second, Officer Raygoza’s statement is, in fact, consistent with BOP policy as set forth by Grandy as 15 In Its Efforts to Provide For Inmate Security. Where a plaintiff contends that federal employees violated mandatory directives, it is the plaintiff's burden to identify with specificity what mandatory statutes, regulations or directives have allegedly been violated. See Gaubert, 499 U.S. at 329-330, 111 S.Ct. 1267, 113 L.Ed.2d 335. Grandy failed to do so in his Complaint. The essence of Grandy’s negligence claim is set forth in his Motion and is as follows: the BOP failed to exercise due care in preventing the unauthorized entry of his assailant into his housing unit which resulted in his being stabbed by a secreted knife. (Pl. Mot. at 2, 5; Complaint at ¶ 8) More specifically, Grandy asserts claims based on the alleged negligence of Officer Raygoza in exercising discretion in monitoring Grandy’s housing unit, both prior and subsequent to Wiggins’ entry.8 At most, such claims -- which, in any event, are not supported by the evidence Grandy attaches6 -- allege Case 2:09-cv-01270-JHN-RZ Document 46 Filed 06/21/10 Page 19 of 28 Page ID #:585 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit F, p. 23: inmates should be subject to random pat searches and where, as here, a metal detector is used the unit officer should ensure that inmates pass through it. The excerpt of Officer Raygoza set forth by Grandy at Exhibit C makes clear that Officer Raygoza understood the policy but commented that, at times, inmates avoided being searched. Such a statement is nothing more than an acknowledgment of negligence in the performance of a discretionary act. 7 Citing the discretionary function exception, courts throughout the circuits have routinely dismissed cases premised on the allegedly negligent supervision of inmates. See, e.g., Cohen, 151 F.3d at 1344 (dismissing claim by inmate who was assaulted by an inmate with an allegedly improper classification); Montez v. United States, 359 F.3d 392, 398-99 (6th Cir. 2004) (dismissing claim based on alleged failure to keep inmate, who was murdered by another inmate, in protective custody); Calderon v. United States, 123 F.3d 947, 949 (7th Cir. 1997) (dismissing claim based on manner in which prison officials respond to threats by inmate toward fellow inmate protected); Mitchell v. United States, 149 F.Supp.2d 1111 (D. Ariz. 1999) (dismissing claim of negligence in preventing inmates from obtaining weapons). 16 nothing more than negligence in the exercise of allowable discretion. As such, they are barred by the discretionary function exception and should be dismissed for lack of subject matter jurisdiction. See Alfrey v. United States, 276 F.3d 557, 563-67 (9th Cir. 2002); see also Hernandez v. United States, 83 Fed.Appx. 206 (9th Cir. 2003) (holding that the discretionary function exception barred claim based on alleged negligent failure to separate inmate from assailant, warn him of danger, and check for weapons).7 Pursuant to 18 U.S.C. § 4042, the BOP shall provide for the safekeeping, care, and protection of inmates in its custody. 18 U.S.C. § 4042(a)(2) & (3). However, the statute does not direct the manner by which the BOP must fulfill this duty. See Cohen v. Case 2:09-cv-01270-JHN-RZ Document 46 Filed 06/21/10 Page 20 of 28 Page ID #:586 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 Defendant does not dispute the application of these Post Orders to the general housing units. 17 United States, 151 F.3d 1338, 1343-45 (11th Cir. 1998), cert. denied, 526 U.S. 1130 (1999); Calderon v. United States, 123 F.3d 947, 950 (7th Cir. 1997). Indeed, in the context of prisoner suits, the Supreme Court has long held that prison administrators should be afforded wide-ranging deference in implementing and executing policies because discretion is needed in order to preserve internal discipline and maintain institutional safety. See Bell v. Wolfish, 441 U.S. 520, 547-48, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Consistent with such well- established precedent, the Ninth Circuit has stated that the acts of performing inmate searches and of providing inmate security are unique to the context of prisons; they are “core prison functions for which there are no private-sector analogues.” Alfrey, 276 F.3d at 566. 1. Alleged Failure to Employ Metal Detector Grandy’s principal claim is that Officer Raygoza was negligent in the performance of his duties as they related to use of the metal detector at the entrance to Unit 6A. To support this claim, Grandy cites to Post Orders governing General Housing Units, which state, in pertinent part: “Inmates will be subjected to pat searches and/or metal detector when entering and exiting the unit.” (Exhibit F, page 11 of 24, attached to Boskovich Dec., filed in support of Grandy’s Motion).8 The Post Order language cited by Grandy is permissive, not mandatory. It provides unit officers discretion to decide the Case 2:09-cv-01270-JHN-RZ Document 46 Filed 06/21/10 Page 21 of 28 Page ID #:587 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 An accompanying provision of the Post Orders cited by Grandy bestows even broader discretion regarding searching inmates during movements: “The Unit Officer should monitor incoming and outgoing traffic, randomly conducting pat searches and if a metal detector is present, ensure each inmate is clearing it.” (Exhibit F, page 23 of 24, attached to Boskovich Dec., filed in support of Grandy’s Motion) 10 In his Declaration supporting Defendant’s Motion for Summary Judgment, Shawn Grant, the Captain in charge of Unit 6A at the time of the incident, provided his understanding of BOP metal detector policy in 2006. He stated that, pursuant to BOP policy and practice, inmates were required to pass the metal detector. The practice of requiring inmates to pass the metal detector was consistent with the policy giving officers the discretion to use either pat searches or metal detectors. 18 manner and scope of searches at their housing unit entrances. It does not state that every entering or exiting inmate must pass through a metal detector. To the contrary, it gives the unit officers the discretion to conduct searches by either using pat downs or the metal detector.9 Inmates can expect to be subjected to either form of search when entering or exiting their units.10 Because the challenged conduct “involv[es] an element of judgment or choice” and does not “prescribe[] a course of action for an employee to follow,” the first prong of the discretionary function analysis is satisfied. See Fang, 140 F.3d at 1241. The second prong of the analysis is also met here. First, the discretion afforded unit officers tasked with monitoring inmate movement at the entrance creates a presumption that the discretion was based in public policy. See Gaubert, 499 U.S. at 324, 111 S.Ct. 1267, 113 L.Ed.2d 335. More importantly, Captain Grant’s testimony establishes, as an indisputable factual matter, that the Post Orders giving the officer discretion were squarely Case 2:09-cv-01270-JHN-RZ Document 46 Filed 06/21/10 Page 22 of 28 Page ID #:588 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 “grounded in policy.” Weissich, 4 F.3d at 814. The process of providing internal security, including decisions about the appropriate level and frequency of inmate monitoring during open movements, took into account movement needed to achieve inmate rehabilitative goals and to safeguard constitutional rights. (Grant Dec. ¶9.) Freedom of movement within the general prison population was one aspect of the rehabilitative effort. (Id.) Prison officials determined that socialization objectives could only be met by allowing inmates, other than a small minority of the federal inmate population, the opportunity to move relatively freely throughout their housing units and other areas of the prison during normal daytime hours. (Id.) 2. Alleged Failure to Conduct Adequate Search Grandy next claims that, apart from the alleged failure to employ the metal detector, Officer Raygoza “failed to search Mr. Wiggins when he entered housing unit 6A.” (Grandy’s Motion at 6.) Title 28 C.F.R. § 552.10 authorized the BOP to conduct “searches of inmates and of inmate housing and work areas” and, moreover, directed staff to “employ the least intrusive method of search practicable, as indicated by the type of contraband and the method of suspected introduction.” (Grant Dec. ¶12; Request for Judicial Notice) This regulation did not mandate that prison officials conduct housing entrance searches in a particular manner. (Id.) To the contrary, the regulation explicitly conferred discretion on prison staff to decide how to search inmates in view of the particular threat presented and the practicalities of the situation. (Id.) Because the challenged Case 2:09-cv-01270-JHN-RZ Document 46 Filed 06/21/10 Page 23 of 28 Page ID #:589 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 conduct “involv[es] an element of judgment or choice” and does not “prescribe[] a course of action for an employee to follow,” the first prong of the discretionary function analysis is satisfied. See Fang, 140 F.3d at 1241. The same legal presumption and undisputed facts that satisfy the second prong of the analysis vis a vis Grandy’s metal detector claim satisfy the second prong of the analysis vis a vis this “general search” claim. See Weissich, 4 F.3d at 814. 3. Alleged Failure to Monitor Unit 6A After Entry Grandy’s final claim is that Officer Raygoza failed to monitor the unit once Wiggins gained entry. (Grandy’s Motion at 6) This claim is also barred by the discretionary function exception, for the same reasons that the prior search-related claim is barred: the manner in which searches of inmates and housing units was conducted was within the officer’s discretion, and the conferring of that discretion was grounded in policy. II. TO THE EXTENT THAT GRANDY’S CLAIMS ARE NOT BARRED BY THE DISCRETIONARY FUNCTION EXCEPTION, THEY FAIL ON THE MERITS. A. Defendant Breached No Duty Owed to Grandy. Grandy has offered no evidence establishing that Officer Raygoza breached the general duty of safekeeping. Prison officials determined that Wiggins’ entry into Unit 6A was an error, in violation of the rule prohibiting inmates from entering their non-residential housing units without proper authorization. However, Grandy has not presented evidence, nor can he, that the error resulted from negligence on the part of Officer Raygoza. Not a single witness -- “eye-witness” inmate Ashfield included -- Case 2:09-cv-01270-JHN-RZ Document 46 Filed 06/21/10 Page 24 of 28 Page ID #:590 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 has given testimony regarding the particulars of Wiggins’ entry. Ashfield merely recalled that he saw Wiggins enter the unit; he was able to give no information about how Wiggins gained entry and, most notably, he did not state that Wiggins bypassed the metal detector. Similarly, there is no admissible evidence in the record that Officer Raygoza was inattentive or distracted or confused about open movement policy at the time that Wiggins entered the unit. To the contrary, Officer Raygoza testified that he understood and abided by the rules restricting inmate movement. Moreover, Ashfield admitted that Raygoza was vigilant in monitoring the inmates who were entering the unit. In fact, Ashfield recalled seeing Officer Raygoza positioned at the door just outside the building “watching everybody that comes in the unit.” (Ashfield Depo. 17:12-18:6, attached to the Declaration of Ira A. Daves supporting Defendant’s Motion) Finally, Officer Raygoza testified that he operated the metal detector that day. (Raygoza Depo. 55:12-22) It is undisputed that the metal detector did not alert. The testimony of Grandy’s fellow inmate Ashfield that he, himself bypassed the metal detector while Officer Raygoza was watching him -- as he purportedly “always” did -- does not constitute evidence that the metal detector requirement was waived for Wiggins on November 25, 2006. Tellingly, Ashfield never stated that he saw Wiggins, like him, bypass the metal detector, while Officer Raygoza was watching. He testified merely that he saw Wiggins enter the unit and that, had the metal Case 2:09-cv-01270-JHN-RZ Document 46 Filed 06/21/10 Page 25 of 28 Page ID #:591 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 Similarly, Ashfield’s statement that “[n]obody really goes through it if they don’t have to,” (Ashfield Depo. 20:14-20; 21:6-13) -- far from proving what it suggests, i.e., that Officer Raygoza did not require inmates to pass through the metal detector -- actually tends to show that inmates routinely went through the metal detector because it was a requirement. His subsequent testimony about Officer Raygoza’s practice of requiring inmates who triggered the metal detector to go back through it supports this interpretation. Moreover, if Officer Raygoza routinely let inmates bypass the metal detector, this witness presumably would have said so. outright, rather than hint at it. In any event, because this testimony is impermissibly vague and constitutes inadmissible lay opinion, it should be stricken. See Fed.R.Evid. 602 & 701. 22 detector alerted, Officer Raygoza would likely have made Wiggins go back through it. Testimony such as this is not probative of whether Wiggins failed to go through the metal detector or that Officer Raygoza knowingly or carelessly let non-resident Wiggins go around the metal detector.11 In fact, it is undisputable that Wiggins could have passed through the metal detector without it alerting, since the weapons may not have been on his person, as Officer Raygoza pointed out at his deposition. In any event, as unlikely as it is that Officer Raygoza waived the metal detector requirement for any of the inmates, Ashfield was a resident whom Officer Raygoza routinely saw; Wiggins was not; it does not follow that Officer Raygoza would have reacted to a non-resident as he would a resident. If anything, Officer Raygoza was more apt to waive the metal detector requirement for a resident inmate with whom he was familiar than for a non-resident inmate he did not know. Absent some first-hand testimony (or other admissible evidence) of how Wiggins was able to gain entry Unit 6A, there can be no triable Case 2:09-cv-01270-JHN-RZ Document 46 Filed 06/21/10 Page 26 of 28 Page ID #:592 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 issue as to whether Officer Raygoza breached the duty of care. B. Defendant’s Acts Or Omissions Did Not Cause Grandy’s Injuries. Assuming, arguendo, that there is a triable issue as to whether Officer Raygoza breached the duty of care, judgment should still be entered in favor of Defendant, as a matter of law. That is because a triable issue of causation can exist only if there is evidence that the alleged breach proximately caused Grandy’s injuries. There is no such evidence in the record. Under California law, proximate cause “is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produced the injury . . . and without which such result would not have occurred.” State v. Superior Court of Sacramento County, 150 Cal.App.3d 848, 857, 197 Cal.Rptr. 914, 920 (1984). A superseding cause is an intervening act that relieves a negligent actor of liability. See Werkman v. Howard Zink Corp., 97 Cal.App.2d 418, 218 P.2d 43, 47-48 (1950). An intervening act is a superseding cause if it is not foreseeable, or is highly unusual or extraordinary. Schrimsher v. Bryson, 58 Cal.App.3d 660, 130 Cal.Rptr. 125, 127 (1976). When the performance of a mandatory duty would not necessarily have altered the course of events, the breach of duty cannot have been the proximate cause of the injury. See Superior Court of Sacramento County, 150 Cal.App.3d at 857, 197 Cal.Rptr. At 920. Because the failure to prohibit Wiggins from entering Unit 6A is the only conceivable basis for finding a breach of duty, Wiggins’ attack on Grandy would have to have been a foreseeable consequence of that breach, and it was not. The attack was a Case 2:09-cv-01270-JHN-RZ Document 46 Filed 06/21/10 Page 27 of 28 Page ID #:593 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 The assault could only be considered arguably foreseeable if Wiggins either (1) passed through the metal detector with the weapons on his person, and the metal detector alerted without any response from Officer Raygoza, or (2) went around the metal detector with weapons on his person while Officer Raygoza was watching. There is no admissible evidence in the record supporting either scenario. 24 highly unusual incident, from the perspective of a reasonable prison official, since most inmates caught out-of-bounds did not commit assaults on other inmates. The evidence is undisputed and undisputable that inmate-on-inmate violence attributable to inmates being out-of-bounds was a rare occurrence at the Penitentiary. (Grant Dec. ¶ 19) It is also undisputed that no prison official knew prior to the incident that Grandy was at risk of attack by Wiggins or any other inmate. (Id. ¶ 6)12 CONCLUSION For all the foregoing reasons, Defendant requests that Grandy’s Motion be denied and that summary judgment be entered in favor of Defendant. Respectfully submitted, DATED: June 21, 2010 ANDRÉ BIROTTE JR. United States Attorney LEON W. WEIDMAN Assistant United States Attorney Chief, Civil Division /S/ IRA A. DAVES Assistant United States Attorney Attorneys for Defendant Case 2:09-cv-01270-JHN-RZ Document 46 Filed 06/21/10 Page 28 of 28 Page ID #:594