As we explained in Chapter One, if you are a prisoner in a state prison or jail you can use Section 1983 to sue over violations of your rights. If you are a federal prisoner, or a pretrial or immigration detainee in a federal facility you cannot use Section 1983, but you have other options: a Bivens action, or a claim under the Federal Tort Claims Act (“FTCA”). You can also bring these two types of claims together in one lawsuit. (This section is about FTCA claims. We discuss Bivens claims in the following section.)

Usually, you cannot sue the United States itself. The FTCA is an exception to this general rule. The FTCA allows federal prisoners, and immigration or pre-trial detainees in federal jails or facilities to file lawsuits against the United States when a federal employee has injured them.

The most important FTCA provisions are in Title 28 of the United States Code, sections 1346(b), 1402(b), 2401(b) and 2671-2680. When we reference Title 28 in this chapter, it will look like this: “28 U.S.C. § 2679(d)(2)” where “28 U.S.C.” means “Title 28 of the United States Code,” and the numbers and letters after it refer to a specific section in the code.

FTCA Claims and Qualified Immunity
One of the good things about an FTCA claim is that the United States does not have qualified immunity. Qualified immunity is described in Chapter Four. For both Bivens and Section 1983 claims, the qualified immunity defense makes it hard to win money damages from government officials.

The FTCA only allows you to sue over “torts.” You’ll find examples of torts in the following section. The FTCA provides a way to sue the U.S. in federal court for torts committed by a federal employee. 28 U.S.C. § 1346(b).

You do not have to be a U.S. citizen to obtain relief under the FTCA. There are, however, many more FTCA cases that have been brought by citizen prisoners than noncitizen detainees.

FTCA actions must be brought in federal court, not state court. However, the federal court will use state tort law. Since torts are different from state to state, make sure that the tort you’re using exists under the law of the state where you are in prison or jail.

1. Who You Can Sue
When you write your complaint, 28 U.S.C. § 2679(d)(2) requires that you name the “United States” as the defendant. You cannot name the specific federal employee who hurt you, or an agency such as the “Bureau of Prisons.” Although you will name the United States as the defendant in your FTCA suit, you will discuss the actions of a specific federal employee.

The FTCA only allows you to sue over actions by federal officials or employees. This means you can’t sue over the actions of a state or local law enforcement agent. You also can’t sue about an independent contractor under the FTCA unless federal employees directly supervised the day-to-day activities of the contractors. Figuring out whether someone is a contractor or federal employee can be tricky, but you should look to the standard set out in the Supreme Court case, United States v. Orleans, 425 U.S. 807 (1976). Most courts decide the question by looking at facts like who owned the tools used by the contractor and who paid the salary, worker’s compensation, and insurance of the employee.

The FTCA is most useful for people held in federal immigration detention centers, or federal jails or prisons. But if you are a federal detainee injured in a state, county, or local jail you may also be able to bring a claim against the United States under the FTCA for negligently housing you in an unsafe non-federal facility. You should argue that the United States has a duty to use reasonable care in ensuring the safety of federal detainees no matter where they are housed. The law is not settled in this area, but you should carefully read a Supreme Court decision, Logue v. U.S., 412 U.S. 521 (1973) which held that the federal government was not responsible for the suicide of a federal prisoner who was negligently confined in a municipal jail because the municipal employees were federal contractors, not federal employees. Probably, you will only be able to succeed on this theory if a federal employee knew or should have known you were being put into an unsafe situation. One example is Cline v. United States Department of Justice, 525 F. Supp. 825 (D.S.D. 1981), a good case in which the court allowed a claim by a federal prisoner held in a county jail after U.S. Marshals placed him into a situation they knew was unsafe.

The FTCA requires that the government employee whose acts you are complaining of was acting within the “course and scope of employment.” The meaning of this requirement is also a matter of state law, so you will have to figure out what it is in your state. Under the law in some states, this requirement will be very easy to meet. For example, in New York the court asks “whether the act was done while the [employee] was doing his [employer’s] work, no matter how irregularly or with what disregard of instructions.” Jones v. Weigland, 134 App. Div. 644, 645 (2d Dep’t 1909). But in other states the standard can be difficult to meet. In Shirley v. United States, 232 Fed. Appx. 419 (5th Cir. 2007), for example, a federal prisoner filed an FTCA claim after she was sexually assaulted by a correctional officer. The Court dismissed her case because under Texas law, an employee only acts under the scope of employment when he or she acts to further the employer’s business.

At least one court has gotten around this requirement altogether. In Bolton v. United States, 347 F. Supp. 2d 1218 (N. D. Fla. 2004), the court held that it doesn’t matter if a guard is acting in the scope of their employment, as long as they are acting “under color of federal law.” Under this theory, all that matters is that the person who hurt you or acted wrongfully is a federal employee.

2. Types of Torts
Under the FTCA, you can sue for negligence or for intentional torts like assault, battery, false arrest, abuse of process and intentional infliction of emotional distress. These common torts are explained below.

You can sue on almost any tort that exists under state law. There are a few exceptions. You can’t bring a libel or slander case under the FTCA and you can’t sue if the government mishandles, detains or loses your belongings. (You can file an administrative claim for damage or loss to personal property under 31 U.S.C. § 3723(a)(1)).

a. Negligence
A government employee is negligent when he or she “fails to use reasonable care.” Since people have different ideas about what is reasonable, courts ask what a “reasonably prudent person” would do in a similar situation.

There are four things you need to show in a negligence claim: duty, breach, causation and damages. Damages are usually the easy part—you just have to show you have been hurt in some way. But Duty is harder. Correctional officials do not have a duty to provide a “risk-free” environment. They do, however, have a duty to keep prisoners safe and protect them from unreasonable risks. To prove negligence, the employee must have breached (failed in) this duty to keep you safe. Lastly, the harm that you suffered must have been caused by the actions of the federal employee, not some other person or event.

You can use the FTCA to challenge any kind of negligence by a detention center or federal prison employee, including the negligent denial of medical care or an officer’s failure to protect a detainee from another detainee. Prisoners often bring negligence claims against prison doctors and nurses for medical malpractice. For example, in Jones v. United States, 91 F.3d 623 (3d Cir. 1996), the court found the prison breached a duty to a prisoner who had a stroke after prison officials withheld his medication. And in Plummer v. United States, 580 F.2d 72 (3d Cir. 1978) Prisoners successfully made a negligence claim based on exposure to tuberculosis

Sometimes, a court will find that the federal employee did not breach their duty of care. For example, the Seventh Circuit denied William Dunne’s FTCA claim for injuries he suffered when he slipped and fell three times on ice during recreational time at a prison. The court held that the accumulation of snow or ice where Dunne fell was so small that an official using ordinary care could not reasonably be expected to know about it. Dunne v. U.S., 989 F.2d 502 (7th Cir. 1993).

What if you were injured by another prisoner? An important Supreme Court case on this topic is United States v. Muniz, 374 U.S. 150 (1963). Muniz, one of the plaintiffs in the case, was beaten unconscious by other inmates after a guard locked him into a dormitory. The prisoner argued that the prison officials were negligent in failing to provide enough guards to prevent the assault. The court said that this type of claim is appropriate under the FTCA, but found against the prisoner because the officials followed prison regulations and could not have reasonably prevented the assault.

If a prison official has violated a federal or state statute, you can use it to strengthen your FTCA claim. You can argue that the statute defines or creates a duty, which was breached by the official. For example, one court found that the BOP breached a duty to let a prisoner make phone calls to his attorney based on the language from the Code of Federal Regulations. Yosuf v. United States, 642 F.Supp. 415 (M.D.Pa. 1986).

b. Intentional Torts – Assault and Battery
Assault and battery often go together, but they are two separate torts. An assault is when someone does something that makes you fear they are about to harm you. It is a threat. If that threat becomes a touch, like if a guard hits, kicks or beats you, that is a battery. A battery is any “offensive touch or contact” where some kind of force is applied.

You can use the FTCA to sue a government employee who assaults or batters you. The standard for battery is generally the same as the constitutional claim for excessive force, described in Chapter Three, Section F, Part 1.

c. False Imprisonment
You may have a claim for false imprisonment if you are imprisoned longer than your sentence, or held in SHU longer than the time of your punishment for a disciplinary offense. For example, under New York law there are four elements to a false imprisonment claim (1) the defendant intended to confine you, (2) you were aware of the confinement, (3) you did not consent to the confinement, and (4) the confinement was not otherwise privileged. For example, in Gittens v. New York, 504 N.Y.S.2d 969 (Ct. Cl. 1986) a New York court held the plaintiff had a claim for false imprisonment where he was held in SHU for nine days beyond the last day of the penalty imposed, with no reason being given other than for investigation. It is important to note that the prisoner in that case got no process whatsoever. You will most likely not be able to succeed with a claim like this if you got any process related to your extra time in the SHU.

d. Intentional Infliction of Emotional Distress
Another tort is Intentional Infliction of Emotional Distress or IIED. This tort arises when someone purposefully does something outrageous that makes you feel very upset. Under the law of most States, an IIED claim requires a showing that: 1) the defendant acted in a way that is extreme or outrageous for the purpose of causing emotional distress; (2) the plaintiff actually suffered severe or extreme emotional distress; and (3) the defendant’s conduct caused the emotional distress.

The conduct really must be outrageous and extreme. One successful example of an IIED claim is Schmidt v. Odell, 64 F. Supp. 2d 1014 (D. Kan. 1999), where a prisoner who had both legs amputated was not given a wheelchair or other accommodation by the jail, and thus had to crawl around on the floor.

3. Administrative Exhaustion
Before you can raise an FTCA claim, you must first present the claim to the appropriate federal agency, and you have to do that within two years of the action that leads to the injury. 28 U.S.C. § 2675(a). If you are in a federal prison, your claim needs to be submitted to the Bureau of Prisons, at 320 First Street, NW, Washington DC 20534.

Use Government Standard Form 95 to make the administrative claim. A copy of this form is included in Appendix C If this form is unavailable, you can write a letter specifying that you are making an administrative claim. Your administrative request must include a specific dollar request for damages and the facts supporting your claim. Make sure you sign the form, and include all the detail you can. You must include enough information to allow the agency to investigate your claim. Rarely, the agency will respond by accepting your claim, and giving you money without you having to sue.

If your administrative claim is denied, you have six months from the date the agency denies your claim to file a FTCA lawsuit in federal court under 28 U.S.C. § 2401(b) and 28 U.S.C. § 2675(a).

If the agency doesn’t respond to your administrative claim within six months you may “deem” the claim denied under 28 U.S.C. § 2675(a) and file your suit. If you file a suit under the “deeming provision” of the FTCA, state that you meet the exhaustion requirement because the government did not respond to your administrative complaint within six months.

4. Damages in FTCA Suits
Damages are explained in Chapter Four. For now, just note that under the FTCA, you can sue the United States for actual (money) damages to compensate you for your injury. You cannot get punitive damages from the United States under the FTCA. Usually, you can’t get more money than the amount of damages you asked for in your administrative claim. One exception is if your injuries have gotten a lot worse since the time you filed your administrative claim. State tort law ultimately determines how high your damages can be.

5. The Discretionary Function Exception
The United States often defends against FTCA claims based on the “discretionary function exception.” When an employee has the freedom to act on their own they are said to have performed a “discretionary function or duty” and cannot be sued under the FTCA. This is true even if they abused their discretion. 28 U.S.C. § 2680[a]. This is in contrast to when an employee is just implementing a policy or prison regulation. Unfortunately, courts have interpreted the discretionary function exception very broadly.

In Berkovitz v. United States, 486 U.S. 531 (1988), the Supreme Court laid out a test to help figure out whether an action is discretionary or not. First, you should ask if the employee exercised “judgment” or “choice” in doing what they did. If they just implemented a policy or regulation of the prison, they didn’t exercise their own judgment and the act is not discretionary. The Tenth Circuit, for example, said that a doctor’s decisions about how to medically treat a patient at an Air Force base are not discretionary. Jackson v. Kelly, 557 F.2d 735 (10th Cir. 1977).

On the other hand, if the employee did make their own choice, the act probably was “discretionary” and subject to the exception. For example, an inmate who sued a Tennessee prison for losing his property when they transferred him lost his case on the discretionary function exception. The court said the warden exercised his discretion in making the arrangements for the inmate’s transfer. Ashley v. United States, 37 F.Supp.2d 1027 (W.D. Tenn. 1997). The widow of a murdered federal prison inmate ran into the same problem when she tried to argue the prison negligently understaffed the area of the prison where her husband was killed. The court said that the decision about how many officers to station in a given compound was discretionary. Garza v. United States, 413 F.Supp. 23 (W.D. Okla. 1975).

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