Edward Gladney v. United States

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 3, 2021
• Docket: 19-17443
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 3 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

EDWARD JORODGE GLADNEY, No. 19-17443

Plaintiff-Appellant, D.C. No. 4:17-cv-00427-DCB

v. MEMORANDUM* UNITED STATES OF AMERICA,

Defendant-Appellee,

and

J. T. SHARTLE, Warden; et al.,

Defendants.

Appeal from the United States District Court for the District of Arizona David C. Bury, District Judge, Presiding

Argued and Submitted April 16, 2021 Seattle, Washington

Before: GRABER and CALLAHAN, Circuit Judges, and SELNA,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable James V. Selna, United States District Judge for the Central District of California, sitting by designation. Plaintiff Edward Gladney, a transgender federal prisoner, appeals the district

court’s dismissal of her suit under the Federal Tort Claims Act ("FTCA")

following her alleged sexual assault at United States Penitentiary ("USP") Tucson.

Reviewing de novo, Young v. United States, 769 F.3d 1047, 1052 (9th Cir. 2014),

we affirm.

1. The district court properly held that it lacks jurisdiction under the

discretionary function doctrine. See Alfrey v. United States, 276 F.3d 557, 561

(9th Cir. 2002) (holding that the FTCA’s limited waiver of sovereign immunity

does not apply "if the tort claims stem from a federal employee’s exercise of a

‘discretionary function’"); see also 28 U.S.C. § 2680(a). Neither the Prison Rape

Elimination Act ("PREA") nor any implementing regulation imposes a mandatory

duty on the Federal Bureau of Prisons ("BOP") to monitor prisoners continuously.

Cf. Alfrey, 276 F.3d at 561 (holding that a governmental function is not

discretionary "when a federal statute, regulation or policy specifically prescribes a

course of action for an employee to follow" (citation omitted)).

To the contrary, both sources of law explicitly grant the BOP discretion in

how to reduce the sexual assault of people in its charge. See 34 U.S.C.

§ 30307(a)(1) (providing that "the Attorney General shall publish a final rule

adopting national standards for the detection, prevention, reduction, and

punishment of prison rape"); 28 C.F.R. § 115.13(a) (providing that each prison

2 "shall develop, document, and make its best efforts to comply on a regular basis

with a staffing plan that provides for adequate levels of staffing, and, where

applicable, video monitoring, to protect inmates against sexual abuse" (emphases

added)). The corresponding BOP policy directs the agency’s human resources and

administration divisions to "consider PREA factors and safety, in general, when

allocating overall staffing resources." U.S. Dep’t. of Justice, Fed. Bureau of

Prisons Program Statement No. 5324.12, Sexually Abusive Behavior Prevention

and Intervention Program (June 4, 2015),

https://www.bop.gov/policy/progstat/5324_012.pdf. An agency’s "ability to

consider" several competing factors can "demonstrate[] that no ‘course of action’

was prescribed." Morales v. United States, 895 F.3d 708, 714 (9th Cir. 2018)

(citation omitted).

Plaintiff’s argument that the Attorney General’s regulations for temporary

lockups, which require continuous monitoring of certain people, 28 C.F.R.

§ 115.113, should also apply to prisons is unpersuasive. Indeed, we must give

effect to the Attorney General’s choice to promulgate different regulations, which

lack any similar provision, for adult prisons. Those regulations "balanced a

number of competing considerations" and deliberately crafted different provisions

for different facilities "[b]ecause the purposes and operations of various types of

3 confinement facilities differ significantly." National Standards to Prevent, Detect,

and Respond to Prison Rape, 77 Fed. Reg. 37106, 37107 (June 20, 2012).

2. The district court erred in declining to address Plaintiff’s argument that

the Eighth Amendment’s prohibition of cruel and unusual punishment—as

described in Farmer v. Brennan, 511 U.S. 825 (1994)—limited the BOP’s

discretion in how it prevents the rape of prisoners. See Nurse v. United States, 226

F.3d 996, 1002 n.2 (9th Cir. 2000) (holding that "the Constitution can limit the

discretion of federal officials such that the FTCA’s discretionary function

exception will not apply"). But that error is harmless because, following the close

of discovery, the record lacks evidence of any individualized risk to Plaintiff of

which guards were aware. Plaintiff does not challenge her individualized risk

assessment or her placement within the BOP.

3. USP Tucson’s choices about how to monitor prisoners "involve[] the type

of policy judgment protected by the discretionary-function exception." Alfrey, 276

F.3d at 564. "When a statute or regulation allows a federal agent to act with

discretion, there is a ‘strong presumption’ that the authorized act is based on an

underlying policy decision." Nurse, 226 F.3d at 1001 (quoting United States v.

Gaubert, 499 U.S. 315, 324 (1991)). Assuming without deciding that the

"negligent guard theory" is valid in our circuit, it would not apply here. See

Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475–76 (2d Cir. 2006) (per

4 curiam) (holding that the discretionary function doctrine does not shield a "BOP

employee’s failure to perform a diligent inspection out of laziness, hastiness, or

inattentiveness"). The record lacks evidence of a similar abdication of duty here.

AFFIRMED.