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Warren v. United States

United States District Court, D. New Mexico

March 22, 2017

CAROL H. WARREN, individually, and as the personal representative of the Estate of Robert A. Warren, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          Marc M. Lowry Alicia Consuelo Lopez Rothstein Donatelli, L.L.P. Albuquerque, New Mexico Attorneys for the Plaintiffs

          Damon P. Martinez United States Attorney Ruth Fuess Keegan Assistant United States Attorney Albuquerque, New Mexico Attorneys for the Defendant

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on: (i) the Defendant's Motion to Dismiss for Lack of Jurisdiction and Memorandum in Support, filed February 9, 2016 (Doc. 14)(“MTD”); and (ii) Plaintiff Carol Warren's Joint Response to the United States' Motion to Dismiss for Lack of Jurisdiction and Memorandum in Support (Doc. 14) and Motion for Leave to Amend the Complaint, filed August 16, 2016 (Doc. 33)(“Motion to Amend”). The Court held a hearing on February 22, 2017. The primary issues are: (i) whether Plaintiff Carol Warren has stated a claim over which the Court has jurisdiction, in light of the potential application of the discretionary function exception to the Defendant United States of America's limited waiver of sovereign immunity under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (“FTCA”), where C. Warren has alleged negligence on the part of Bureau of Prisons (“BOP”) officials for the death of her husband, Robert Warren, who was attacked and killed at a BOP facility; and (ii) if the Court should allow C. Warren to amend her First Amended Complaint, filed September 30, 2015 (Doc. 4)(“First Amended Complaint”), to include more specific allegations that assert the existence of mandatory directives regulating Bureau of Prisons officials' conduct, thereby limiting and removing their discretion in relevant part. Because the Court concludes that C. Warren's First Amended Complaint fails to make the requisite allegations establishing that the discretionary function exception does not bar the Court's jurisdiction over her claims, and that the proposed Second Amended Complaint, filed August 16, 2016 (Doc. 33-2)(“Second Amended Complaint”), attached to her Motion to Amend, similarly fails to cure the First Amended Complaint's deficiencies, making leave to amend futile, the Court will grant the MTD and deny the Motion to Amend, thereby dismissing the First Amended Complaint without prejudice for lack of jurisdiction.

         FACTUAL BACKGROUND

         The Court takes its following recitation of the facts from C. Warren's First Amended Complaint and proposed Second Amended Complaint. The Court does not set forth these facts as findings or the truth, and considers them only in the context of the MTD. The Court recognizes that the factual background is, necessarily, largely Warren's version of events.

         Defendant United States is responsible for managing and operating the federal correctional facility at Victorville, as well as the “Regional Designation Center, located in Grand Prairie, Texas.” First Amended Complaint ¶ 4, at 2. C. Warren asserts that “the acts and conduct alleged herein were performed by agents and employees of the United States acting in the course and scope of their employment and with the knowledge and consent of their employer, the United States.” First Amended Complaint ¶ 5, at 2. R. Warren was “a 72-year old retired Wall Street attorney, university instructor, philanthropist, and author, ” who had moved with his wife C. Warren to Santa Fe, New Mexico, from New York, in 1991. First Amended Complaint ¶¶ 8-14, at 3. During his time in Santa Fe, R. Warren pursued a variety of academic, philanthropic, and cultural hobbies. See First Amended Complaint ¶¶ 15-25, at 3-5. R. Warren also “began to experience minor episodes of confusion, memory loss, and aberrant behavior, ” First Amended Complaint ¶ 21, at 4, and “was diagnosed with mild peripheral neuropathy and neurocognitive impairment, ” First Amended Complaint ¶ 22, at 4. According to a psychologist's subsequent medical evaluation of R. Warren, his tendency for preoccupation and abnormal intensity and focus was “attributable to Asperger's Syndrome.” First Amended Complaint ¶ 26, at 5.

         Following his diagnosis, R. Warren began to spend an “inordinate amount of time on the internet, ” First Amended Complaint ¶ 27, at 5, and “became excessively involved in viewing internet pornography, ” First Amended Complaint ¶ 28, at 5. “Eventually, Mr. Warren began to view and download child pornography, an offense for which he was arrested in July 2009.” First Amended Complaint ¶ 29, at 5. After his arrest, R. Warren underwent further medical evaluations, resulting in the discovery of “a cystic formation in the left frontal lobe of his brain, the area of the brain responsible for an individual's ability to reason, ” First Amended Complaint ¶ 32, at 5, and a reconfirmed diagnosis of “Asperger's Syndrome, an Autism Spectrum Disorder characterized by a right hemisphere brain disorder, ” First Amended Complaint ¶ 33, at 6. R. Warren “relied on a cane to walk due to right leg weakness, ” First Amended Complaint ¶ 37, at 6, and “had a history of transient ischemic attacks, for which he took daily medication to reduce his risk of stroke, ” First Amended Complaint ¶ 38, at 6.

         R. Warren pled guilty to a “single count of receipt of a visual depiction of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2), ” on August 30, 2010. First Amended Complaint ¶ 39, at 6. The Honorable Bruce Black, United States District Judge for the District of New Mexico, sentenced R. Warren to a mandatory minimum sentence of 60 months. See First Amended Complaint ¶ 40, at 7. Judge Black recommended to the BOP that R. Warren be “housed in one of two medical facilities for federal inmates with special health needs and sex-offender treatment programs: The Federal Medical Center, Butner (FMC Butner), in Butner, North Carolina; or the Federal Medical Center, Devens (FMC Devens), in Devens, Massachusetts.” First Amended Complaint ¶ 41, at 7. The BOP, however, “elected to house R.

         Warren . . . with young, violent offenders convicted of armed robbery, homicide, and other violent offenses at the F.C.I. Victorville Medium II . . . a medium-security federal correctional facility in Victorville, California.” First Amended Complaint ¶ 44, at 7. At the Victorville facility there are three federal correctional facilities, two medium-security prisons -- Victorville Medium I and Victorville Medium II, and the high security United States Penitentiary, Victorville, which houses high-security male inmates. See First Amended Complaint ¶ 45, at 7.

         Accordingly, the First Amended Complaint alleges:

By assigning Mr. Warren to serve a sentence of incarceration with hardened, violent criminals at Victorville II, the United States breached a duty of care owed to Mr. Warren under 18 U.S.C. § 4042(a), which mandated that the United States provide suitable quarters and provide for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the United States; and provide for the protection, instruction, and discipline of all persons charged with or convicted of offenses against the United States.

First Amended Complaint ¶ 46, at 8 (internal quotation marks omitted). The First Amended Complaint explains that “[d]esignation of an inmate to a specific institution is governed by [BOP] Program Statement []5100.08, entitled Inmate Security Designation and Custody Classification, ” First Amended Complaint ¶ 47, at 8 (internal quotation marks omitted), and that the BOP is thus instructed that “[t]he classification of inmates is necessary to place each inmate in the most appropriate security level institution that also meets their program needs and is consistent with the Bureau's mission to protect society, ” First Amended Complaint ¶ 48, at 8.

         Thus, BOP institutions are “classified into one of five security levels: minimum, low, medium, high, or administrative, based on the level of security and staff supervision the institution is able to provide.” First Amended Complaint ¶ 49, at 8. BOP inmates, consequently, are also classified “based on the primary considerations of (1) the level of security and supervision the inmate requires; and (2) the inmate's program needs (including medical and/or mental health treatment and counseling), ” First Amended Complaint ¶ 50, at 8, and are given an “inmate's security score” as generated by an individual inmate's comparison to an objective set of factors, First Amended Complaint ¶ 58, at 9-10. R. Warren was given a security score of six, “which is in the lowest point range possible, ” First Amended Complaint ¶ 60, at 10, and was thus designated as having a “security level of low, ” First Amended Complaint ¶ 61, at 10. According to the First Amended Complaint, “[i]n order to designate Mr. Warren to a facility that was inconsistent with his scored security level of ‘low, ' the Designator was required to apply a Management Variable to override Mr. Warren's designation to a low-security facility.” First Amended Complaint ¶ 62, at 10. Management variables are applied, because “[s]ituations may occur in which an inmate requires housing in a facility which is not commensurate with his or her security level. Following are example situations: facility activation; population pressures affecting available appropriate-level bed space within 500 miles of the inmate's anticipated release residence; gang/security concerns.” First Amended Complaint ¶ 72, at 11. The Management Variable applied in R. Warren's case to authorize his housing in medium-security at Victorville II was “Population Management.” First Amended Complaint ¶¶ 63-71, at 10-11.

         After R. Warren's designation, he arrived at the medium security Victorville II facility on June 9, 2011. See First Amended Complaint ¶ 92, at 16. R. Warren's “Intake Screening Form noted, under [his] comments, ‘possess child pornography, '” First Amended Complaint ¶ 94, at 16 (alteration added), and also that he was “OK FOR GENERAL POPULATION, ” First Amended Complaint ¶ 95, at 16. Then, “on June 10, 2011, at approximately 7:15 a.m. while standing in a ‘pill line' outside the medical office to obtain his daily medications, Mr. Warren was approached from behind by multiple younger inmates, ” First Amended Complaint ¶ 96, at 16, who proceeded to repeatedly punch and kick him, resulting in lacerations, bruises, and a hematoma to his right ear, see First Amended Complaint ¶¶ 97-105, at 16. The attackers also allegedly told R. Warren to “stay away from little kids.” First Amended Complaint ¶ 106, at 17. Following the attack, R. Warren “crawled to the door of the Special Housing Unit and pressed the emergency button to gain entry into that wing of the facility.” First Amended Complaint ¶ 119, at 18. BOP staff subsequently moved R. Warren to solitary confinement. See First Amended Complaint ¶ 121, at 18.

         On July 1, 2011, after the attack, R. Warren's legal counsel inquired of the BOP Victorville II facility what “measures the facility was taking to protect” R, Warren, requested R. Warren's transfer, and expressed concern about the speed with which other inmates became aware of R. Warren's conviction's nature. First Amended Complaint ¶¶ 123-24, at 19. The Warden replied to R. Warren's counsel, and indicated that an investigation was ongoing and that R. Warren would remain in solitary confinement until it was complete. See First Amended Complaint ¶¶ 126-29, at 19. On August 19, 2011, the “investigation into Mr. Warren's June 10 assault was completed, ” and his assailants were not officially identified. First Amended Complaint ¶ 132, at 20. After the investigation, BOP officials concluded that R. Warren's safety was at risk at Victorville II “and recommended that Mr. Warren be transferred out of the facility.” First Amended Complaint ¶ 133, at 20. R. Warren told C. Warren, at some point, that the inmates somehow had enough information about him to have researched his charges, that BOP staff had provided his full name to the other inmates, and that it was known that an inmate named Frederick Ashley used Lexis Nexis services at the prison to identify incoming inmates with sex-offender status. See Second Amended Complaint ¶ 87, at 13; id. ¶ 110, at 17; id. ¶ 120, at 18.

         In the meantime, Ashley was also housed in solitary confinement, because Ashley was receiving “punishment for assaulting a sex-offender inmate.” First Amended Complaint ¶ 130, at 19. The First Amended Complaint explains that Ashley “was known to be a highly influential enforcer who controlled white inmates in Victorville II, ” First Amended Complaint ¶ 114, at 17, and who had “violently assaulted at least four inmates convicted of sexual offenses, ” First Amended Complaint ¶ 115, at 17. See Second Amended Complaint ¶¶ 115-126, at 18-19. BOP officials were, at the same time of R. Warren's investigation, in the process of “investigating whether Frederick Ashley should be transferred to a high-security facility because of the security threat he posed to inmate sex offenders in Victorville II.” First Amended Complaint ¶ 135, at 20. Ultimately, “Ashley was recommended for transfer to a high security facility based on the threat he posed to the safety of inmate sex offenders at Victorville II . . . .” First Amended Complaint ¶ 139, at 21. As well, BOP allegedly mandated that Ashley be segregated from those to whom he posed risks, such as sex-offender status inmates. See Second Amended Complaint ¶ 126, at 19; id. ¶ 155, at 22; id. ¶¶ 272-73, at 45; id. ¶ 290, at 46.

         On September 3, 2011, the BOP ordered “that Mr. Warren be separated from two influential white inmates at Victorville II, ” one of whom the First Amended Complaint states was Ashley, but the Second Amended Complaint then concedes was not Ashley. First Amended Complaint ¶¶ 140-45, at 21 (indicating, however, that the names were redacted on the copy of the paperwork possessed by C. Warren). See Second Amended Complaint at 22-23. On September 29, 2011, the Warden at Victorville submitted a formal transfer request for R.

         Warren, because R. Warren had “received a Central Inmate Monitoring [“CIM”] assignment of separation from two influential white inmates who are currently in general population at FCI Victorville II. Therefore, it is recommended that inmate Warren be transferred to a facility that is commensurate with his safety and security requirements.” First Amended Complaint ¶ 148, at 22. See Second Amended Complaint ¶¶ 143-44, at 25; id. ¶ 165, at 26; id. ¶ 176, at 43; id. ¶¶ 272-73, at 45; id. ¶ 283, at 46 (reiterating that BOP had in place an order that R. Warren remain segregated from certain inmates posing a threat to his safety, namely influential white inmates known to prey on inmate sex offenders). On October 31, 2011, the BOP designated R. Warren for transfer to “FCI Big Spring, a low-security facility in Big Spring, Texas.” First Amended Complaint ¶ 154, at 23. “Around the same time, the BOP designated . . . Frederick Ashley to be transferred to the USP Hazelton, a high-security federal prison in West Virginia.” First Amended Complaint ¶ 156, at 23. “Sometime in November of 2011, the BOP transferred Mr. Warren to a holdover unit at the neighboring high-security Victorville USP.” First Amended Complaint ¶ 157, at 23. Ashley was then transferred to the same holdover unit, apparently prompting R. Warren's transfer to a different holdover unit before his departure from Victorville. See First Amended Complaint ¶¶ 158-59, at 23-24.

         On December 28, 2011, R. Warren learned that “the names of the inmates to be transferred to new facilities by bus the following morning had just been ‘read out' loud by BOP staff, ” information that he then relayed to C. Warren over the telephone. First Amended Complaint ¶¶ 158-59, at 23-24. On December 29, 2011, BOP staff took R. Warren from his cell in the holdover unit and prepared him for his transfer to Big Spring. See First Amended Complaint ¶ 165, at 24. R. Warren was then placed in a communal holding cell in the facility's receiving and discharging area -- or inmate transfer area -- with other transferring inmates, in anticipation of their processing for transfer. See First Amended Complaint ¶¶ 167-68, at 24. Ashley was placed in the same communal holding cell as R. Warren. See First Amended Complaint ¶ 169, at 25.

         Once BOP staff had departed from the communal holding cell, Ashley told the other inmates: “You better look away and out the window, while I kill this motherfucker.” First Amended Complaint ¶ 179, at 26. “[T]he correctional officers at Victorville USP had so loosely shackled Ashley's waist chain Ashley was able to lower the waist chain towards the floor and step out of the restraint.” First Amended Complaint ¶ 181, at 26. See Second Amended Complaint ¶ 179, at 27; id. ¶ 322, at 41 (stating that the BOP failed to secure Ashley's waist chain, in contravention of “BOP Program Statements, Institutional Supplements, and/or Post Orders propounded by the institution”). Ashley then knocked Warren to the ground, and “proceeded to choke and strangle Mr. Warren with the chain that was supposed to have been tightly bound around Ashley's waist.” First Amended Complaint ¶ 181, at 26. “Ashley successfully strangled Mr. Warren to the point that his eyes began to swell and hemorrhage.” First Amended Complaint ¶ 187, at 27. Ashley's force “splintered Mr. Warren's hyoid bone in his throat, ” First Amended Complaint ¶ 191, at 27, and after several minutes of strangulation, Ashley proceeded to stomp on R. Warren's skull, see First Amended Complaint ¶¶ 195-206, at 27-28. R. Warren suffered numerous crush wounds, including one major deformity to the front of his skull. See First Amended Complaint ¶ 202, at 28. Ashley also stomped down on R. Warren's chest and upper torso, breaking his ribs, crushing his larynx, and causing numerous other serious injuries. See First Amended Complaint ¶¶ 206-211, at 28-29. BOP staff then discovered the scene and called in paramedics. See First Amended Complaint ¶¶ 213-220, at 29; Second Amended Complaint ¶ 187, at 28; id. ¶ 322, at 41 (alleging further that BOP failed to attend the communal holding cell in contravention of “BOP Program Statements, Institutional Supplements, and/or Post orders”). The paramedics made various attempts to alleviate R. Warren's trauma, see First Amended Complaint ¶¶ 216-240, at 29-31, but when R. Warren arrived at the emergency room, approximately an hour after the attack had ended, he already “was in a state of asystole (flatline) without agonal complexes (slow ventricular rhythms), ” First Amended Complaint ¶ 241, at 31. R. Warren “was pronounced dead at 8:42 a.m. on December 29, 2011.” First Amended Complaint ¶ 249, at 32. A pathologist concluded that E. Warren's “cause of death was asphyxia, hour, due to blunt force injuries of neck and head, hours.” First Amended Complaint ¶ 253, at 32. C. Warren further asserts that BOP generally failed to comply with CIM separation assignments, BOP Program Statements, Institutional Supplements, and/or Post Orders in its failure to exercise reasonable care to ensure R. Warren's safety. See Second Amended Complaint ¶ 293, at 38; ¶ 304, at 39; ¶ 314, at 40; ¶ 323, at 42.

         PROCEDURAL HISTORY

         C. Warren filed the First Amended Complaint following the “brutal physical attack leading to the death of Mr. Warren by a known, hostile inmate at U.S.P. Victorville, a federal correctional facility located in Victorville, California, ” First Amended Complaint at 1, and following C. Warren's original filing of the Complaint, filed July 27, 2015 (Doc. 1). The First Amended Complaint seeks damages for wrongful death under the “statutory law of California, ” as well as “survival damages for negligence under the common and statutory law of California and Texas; survival damages for intentional torts (assault and battery), under the common law of California; and survival damages for violation of the Elder Abuse and Dependent Adult Civil Protection Act, Cal. Wel. & Inst. Code § 15600 . . . .” First Amended Complaint at 1. According to the First Amended Complaint, the Court has jurisdiction under “28 U.S.C. § 1331 (Federal Question), § 1343 (Civil Rights) and § 1346(b) (United States as Defendant).” First Amended Complaint ¶ 1, at 2. Count 1 states “a survival action for negligence based on Defendant's failure to comply with mandatory requirements in designating Mr. Warren to a BOP institution that was commensurate with his security and program needs, ” First Amended Complaint ¶ 263, at 33-34, brought pursuant to the FTCA, and under a “Texas Survival Statute, Tex. Civ. Practice & Remedies Code § 71.021; and the common law of Texas, ” First Amended Complaint ¶ 264, at 34. Count 2 states “a survival action for negligence based on Defendant's wrongful conduct and/or negligence of Defendant in failing to protect Mr. Warren from a fatal attack while in Defendant's custody, ” First Amended Complaint ¶ 278, at 35, brought pursuant to the FTCA, and under “the California Survival Statutes, Cal. Code of Civ. Proc. §§ 377.20, 377.21, 377.30 et seq.; and California's negligence statute, Cal. Civ. Code § 1714, ” First Amended Complaint ¶ 279, at 36. Count 3 states a survival action “for Defendant's intentional infliction of emotional distress upon Mr. Warren, ” brought pursuant to the FTCA. First Amended Complaint ¶ 293, at 37. Count 4 states a survival action for “Defendant's recklessness in failing to exercise reasonable care in providing for Mr. Warren's safety, failing to comply with the . . . ‘Keep-Away' order, and failing to otherwise protect Mr. Warren from an individual known to attack sex offenders like Mr. Warren, ” brought pursuant to the FTCA, and under “the California Elder Abuse and Dependent Adult Civil Protection Act . . . Cal. Welf. & Inst. Code §§ 15600 et seq.” First Amended Complaint ¶ 304, at 38-39. Count 5 states a survival action for assault, brought pursuant to the FTCA, and under “the common law of California, ” First Amended Complaint ¶ 268, at 41, because the “Defendant, by and through its agents and officers, and using as its instrumentalities Mr. Warren's fellow inmates, intended to cause harmful or offensive contact, or the imminent apprehension of such contact, to Mr. Warren, ” First Amended Complaint ¶ 269, at 41. Count 6 states a survival action for battery, brought pursuant to the FTCA, and under “the law of Texas and/or California, ” First Amended Complaint ¶ 280, at 42, because the “Defendant, by and through its agents and officers, and using as its instrumentalities Mr. Warren's fellow inmates, caused Mr. Warren to be touched with the intent to harm or offend him, ” First Amended Complaint ¶ 281, at 42. Count 7 states an action, asserted by C. Warren individually, for wrongful death, brought pursuant to the FTCA, and under “the California Wrongful Death Statute (California Code of Civil Procedure §§ 377.60, 377.61, 377.62), ” because “the wrongful death of Mr. Warren [] resulted from Defendant's wrongful conduct and/or negligence.” First Amended Complaint ¶ 289, at 43-44. The First Amended Complaint thus requests compensatory damages -- including survival and wrongful death damages -- in accordance with the aforementioned allegations. See First Amended Complaint at 45.

         1. The MTD.

         In lieu of filing an answer to the First Amended Complaint, the United States filed its MTD on February 9, 2016. The MTD argues a lack of subject-matter jurisdiction, because C. Warren's claims “fall within the discretionary function exception to the Federal Tort Claims Act.” MTD at 1. The MTD begins with a lengthy exposé regarding R. Warren's engagement with the child pornography leading to his conviction. See MTD at 1-3. The MTD then characterizes C. Warren's claims against the United States, arguing that C. Warren alleges that the United States has

breached a duty of care owed to Mr. Warren under 18 U.S.C. § 4042(a) by housing Mr. Warren at the F.C.I. Victorville Medium II . . . a medium-security federal correctional facility . . . placing Mr. Warren in a communal holding cell pending his transfer to another facility . . . placing Ashley in the same holding cell . . . failing to fasten Ashley's waist chain tightly . . . and leaving the holding cell unattended. . . . [and] these actions violated 18 U.S.C. § 4042(a), the Bureau of Prisons Program Statement P5100.08, entitled Inmate Security Designation and Custody Classification, and CIM Keep-Away order.

MTD at 3-4 (internal quotations omitted). Next, the MTD describes the limited waiver of sovereign immunity that the United States makes by the FTCA for “claims arising out of injuries caused by the negligence of governmental employees acting within the scope of their employment.” MTD at 4 (citing the FTCA, 28 U.S.C. § 1346(b)(1)). According to the MTD, the FTCA does not, however, waive the United States' sovereign immunity from claims “‘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.'” MTD at 4 (quoting the FTCA, 28 U.S.C. § 2680(a)). The United States thus argues that this “discretionary function exception” applies without regard to whether the “discretion involved was abused or the product of negligence, ” and that its application is a “jurisdictional issue which precedes any negligence analysis.” MTD at 4-5 (citing Elder v. United States, 312 F.3d 1172, 1176 (10th Cir. 2002); Johnson v. United States Dept. of Interior, 949 F.2d 332, 335 (10th Cir. 1991)). Accordingly, the United States maintains that C. Warren must prove more than negligence and must also “first prove that their claims are not based upon actions immunized from liability under the FTCA's discretionary function exception.” MTD at 5. The relevant inquiry, then, the United States argues, is “not whether the agency was negligent, but rather what was the nature of the agency's decision.” MTD at 7 (alterations omitted)(citing Johnson v. United States Dept. of Interior, 949 F.2d at 338).

         Here, the United States argues, to determine whether the challenged BOP conduct falls within the discretionary function exception, the Court must apply the test in Berkovitz v. United States, 486 U.S. 531 (1988)(“Berkovitz”). See MTD at 8. The United States provides that, under Berkovitz, step one inquires “whether the challenged conduct involves an element of judgment or choice, ” or whether “a federal statute, regulation, or policy . . . specifically prescribes a course of action for an employee to follow.” MTD at 8. Then, the United States provides, if judgment or choice is involved, step two inquires “whether that judgment is the kind that the discretionary function exception was designed to shield, ” i.e., a judgment with policy implications. MTD at 8.

         In applying the Berkovitz test to the challenged conduct at issue in this case, the United States first asserts that the “BOP's decisions on inmate placement are discretionary” and that “Congress has reserved considerable discretion for the agency in making decisions related to inmate placement.” MTD at 8. After providing the relevant statutory frameworks authorizing the BOP's operations, the United States argues that every federal court to consider the issue has concluded that “neither statute sets forth a specific or mandatory course of action for BOP to follow. Instead, they give the BOP ample room for judgment by listing a non-exhaustive set of factors for the BOP to consider . . . leaving to the BOP what weight to assign to any particular factor.” MTD at 9 (internal quotation marks omitted). R. Warren's placement in any given prison, then, was, according to the United States, “clearly discretionary.” MTD at 9.

         The United States then argues that C. Warren's reliance on the “BOP program Statement P5100.08, Inmate Security Designation and Custody Classification, ” is erroneous, because that Program Statement “vests the decision squarely within the discretion of the BOP, ” to apply certain management variables when the BOP is considering the placement of any particular inmate. MTD at 10. Thus, the United States maintains that “placing a management variable on an inmate is merely a discretionary step within the broader placement decision for that inmate, the decision whether to place a management variable on a particular inmate also falls within the discretionary function exception.” MTD at 10 (citing Lineberry v. United States, 2009 WL 763052, at *6 (N.D. Tex. 2009)(Fish, S.J.)). Accordingly, in this case, the United States asserts that, although R. Warren was scored as a low-security inmate, the BOP's decision to further apply a management variable and house him at a medium-security facility was merely “an exercise of discretion authorized by both 18 U.S.C. § 3621(b), and Program Statement 5100.08.” MTD at 10-11.

         Regarding R. Warren's placement in the communal holding cell with Ashley, the United States similarly argues that C. Warren has failed to “identify a mandatory statute, rule, or policy that was violated” by the BOP. MTD at 11. The United States explains that C. Warren has alleged only that some “separation order dealing with Mr. Warren and two individuals whose names were redacted” exists, but, according to the United States' MTD, Ashley was not one of those individuals. MTD at 11. Thus, the United States argues that C. Warren is only second-guessing the BOP's discretionary designation decisions, which the discretionary function exception to the FTCA disallows. See MTD at 12. The United States further argues, in its MTD, that the “BOP's placement decisions enjoy a presumption of being grounded in public policy, ” because the “BOP's exercise of its statutorily conferred discretion allows staff to apply professional judgment to better ensure the safety of inmates and staff, and to protect the public.” MTD at 12.

         The United States next maintains that the “BOP's decisions on security of inmates are discretionary . . . [and] consigned to BOP's discretion by law.” MTD at 13. According to the MTD, although

[t]he mandate of the BOP is to provide suitable quarters and provide for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the United States, or held as witnesses or otherwise . . . and to provide for the protection . . . of all persons charged with or convicted of offenses against the United States,

MTD at 13 (citing 18 U.S.C. § 4042(a)(2)-(3)), that mandate “does not, however, direct the manner by which the BOP must fulfill this duty, ” MTD at 13. Indeed, the United States argues, “[t]he statute sets forth no particular conduct the BOP personnel should engage in or avoid while attempting to fulfill their duty to protect inmates.” MTD at 13. Accordingly, the United States maintains that C. Warren “identifies no mandatory rule or policy that was violated with respect to prisoner restraint and supervision in the holding unit. . . . BOP does not have a mandatory policy requiring constant, in-person supervision. . . . BOP does not have a mandatory policy requiring restraint of prisoners in a holding cell.” MTD at 14. Such reasoning, the United States suggests, underlies “countless judicial decisions [that] have, for similar reasons, refused to review BOP decisions regarding when, how, or whether to restrain or supervise inmates.” MTD at 14-15.

         Thus, the United States emphasizes that, “[b]ecause Congress has consigned the protection of inmates to BOP by statute, courts will presume that BOP's decisions in that respect are grounded in policy.” MTD at 16. Consequently, in this case, the United States asserts that the “BOP's decisions with respect to the level of prisoner restraint and supervision in the holding unit were susceptible to multiple, competing policies.” MTD at 16. Such management of competing policies suggests mandatory exercise of discretion on the part of the BOP along every stage of R. Warren's detention. See MTD at 16-17. The MTD thus concludes by stating that the FTCA's discretionary function exception bars the First Amended Complaint's claims. See MTD at 17.

         2. The Motion to Amend.

         C. Warren responded to the MTD with her Motion to Amend, which doubles as both a responsive brief regarding the MTD and also a new motion seeking leave to amend the First Amended Complaint in an effort to more completely allege grounds dispelling the application of the FTCA's discretionary function exception. See Motion to Amend at 1.

The Motion to Amend begins by explaining that C. Warren
filed her Complaint under the [FTCA], 28 U.S.C. § 1346(b) and 28 U.S.C. § 2671-2680, seeking damages from the United States of America for wrongful death, negligence, assault and battery, and violation of the Elder Abuse and Dependent Adult Civil Protection Act, Cal. Wel. & Inst. Code § 15600 et seq.

         Motion to Amend at 1. C. Warren then argues that the First Amended Complaint adequately

identified multiple ways in which the Government's tortious conduct violated the FTCA, the federal statute which provides for claims for personal injury or wrongful death “caused by the negligent or wrongful act or omission” of any government employee acting within the scope of his employment “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”

Motion to Amend at 2 (quoting 28 U.S.C. § 1346(b)(1)). In particular, C. Warren highlights her allegations that the United States failed to comply with mandatory requirements when it failed to designate R. Warren to a BOP facility “commensurate with his low-security classification and program needs, ” thereby putting him at unreasonable risk of harm given his sex-offender status, age, and physical ability to defend himself, and that the United States failed to comply with a CIM assignment of separation that mandated that R. Warren and -- upon C. Warren's information and belief -- Ashley, be separated for R. Warren's safety. Motion to Amend at 2. According to C. Warren, the United States has supported its MTD, with respect to those allegations, by arguing only that “the challenged conduct fell within the discretionary function exception.” Motion to Amend at 3 (referencing the Affidavit of Eric Davis (executed February 4, 2016), filed February 9, 2016 (Doc. 14-1)(“Davis Aff.”)(involving the declaration of a Correctional Systems Specialist who states that the BOP enjoys broad discretion when designating inmates to particular facilities, as well as when supervising and monitoring those inmates in their communal transport holding cells)). Regarding those allegations, the Motion to Amend also concedes, however, that in the MTD, the United States has provided evidence that Ashley was not one of the two individuals who were subject to R. Warren's CIM assignment of separation. See Motion to Amend at 3 (referencing R. Warren's CIM Separation Order (dated September 3, 2011), filed February 9, 2016 (Doc. 14-3)(“CIM Separation Order”)(listing, in addition to the fact that R. Warren cannot “safely reside in general population, specifically amongst white inmates, ” that he also requires separation from “inmates Beraldo . . . and Jerecki . . . .”)). C. Warren nonetheless also explains that the First Amended Complaint makes allegations that regard the BOP officials' lack of supervision of the communal holding cell, and the BOP officials' failure to adequately secure Ashley's waist restraints. See Motion to Amend at 2 n.2. According to C. Warren, the United States has supported its MTD those allegations by attempting “to subsume this conduct into one generalized argument that BOP's decisions on security of inmates are discretionary.” Motion to Amend at 2 n.2 (internal quotation marks omitted). Accordingly, C. Warren first explains that she now seeks an opportunity to obtain “limited discovery . . . as necessary to respond to the instant [MTD] and potentially seek leave to amend her [First Amended] Complaint.” Motion to Amend at 3. She then subsequently argues that the Court should nonetheless deny the MTD, because the First Amended Complaint makes sufficient allegations under the FTCA, despite the discretionary function exception, see Motion to Amend at 7-10, and that her Motion to Amend should be granted -- if the Court agrees with the MTD's arguments -- to add additional “factual allegations -- many, of necessity, upon information and belief -- asserting how different categories of mandatory directives removed the element of choice from BOP officials' conduct in the placement of her husband in a holding cell with Ashley and in the securing of Ashley's shackles, ” Motion to Amend at 11.

         After providing the legal standards for the Court's consideration of a MTD and a Motion to Amend, the Motion to Amend then explores the FTCA's discretionary function exception, arguing that the allegations here are not barred by the discretionary function exception's limit to the FTCA's waiver of federal-government immunity. See Motion to Amend at 4-7. According to C. Warren,

Courts apply a two-pronged test to determine whether the discretionary function exception should adhere to governmental conduct. First, a court considers whether the challenged conduct “involve[s] an element of judgment or choice and [is] not compelled by statute or regulation.” United States v. Gaubert, 499 U.S. 315, 325 (1988)[](“[t]he requirement of judgment or choice is not satisfied if a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow, because the employee has no rightful option but to adhere to the directive”). Second, if the challenged governmental conduct does involve an element of judgment, the court must consider whether “the judgment or choice in question [was] grounded in considerations of public policy or susceptible to policy analysis, ” as such judgments are of the kind that the discretionary function exception was designed to protect. [United States v. Gaubert, 499 U.S.] at 325.

Motion to Amend at 7-8. It is C. Warren's position, in light of that requisite analysis, primarily that “the Government's argument that all BOP decisions undertaken with respect to Mr. Warren's safety were discretionary is premature without the benefit of discovery, and moot in light of Plaintiff's request to amend.” Motion to Amend at 8. C. Warren thus argues, that “BOP personnel are regulated in more ways than the Government acknowledges. In fact, courts have held that federal corrections officers are subject to BOP mandates including BOP Program Statements, Institution Supplements, and Post Orders.” Motion to Amend at 9 (citing Sledge v. United States, 883 F.Supp.2d 71, 77 (D.D.C. 2012)(Titus, J.)). C. Warren explains:

Program Statements apply to all BOP employees and cover all areas of responsibility for the agency, including inmate accountability, discipline, and visitation. . . . Institutional Supplements, on the other hand, adapt the general Program Statements to a particular institution. . . . Finally, institution-specific Post Orders apply to the specific position to which an officer is assigned. . . . [Sledge v. United States, 883 F.Supp.2d at 77] . . . (describing three subcategories of Post Orders: (1) General Post Orders, guidelines applicable to any post in the institution; (2) Specific Post Orders, which are specific to a post and outline the timing of movements by inmates, equipment needed on the post, and approximate timeframes that certain procedures or activities should occur; and (3) Special Instructions, which describe a correctional staff member's responsibilities and expectations while serving on a particular post). See also BOP Program Statement 5100.08 (mandating that “[e]ach institution must establish an Institution Supplement (IS) for [Receiving and Discharge] procedures that are unique to that facility”).

         Motion to Amend at 9. C. Warren thus maintains that an analysis of all applicable Program Statements, Institutional Supplements, and Post Orders will be of central importance in considering whether the BOP officials were acting within their discretion, and that discovery into these applicable BOP guidelines must occur before the MTD could be granted. See Motion to Amend at 10 (citing Sledge v. United States, 883 F.Supp.2d at 95, which permitted discovery of a wide range of internal BOP “program statements, institutional supplements, policy handbooks, guidelines, training manuals, work schedules, work assignments, policy memoranda, post orders, and other orders or instructions from the warden”). Indeed, C. Warren provides that “courts have sounded caution against granting a 12(b)(1) motion predicated on the discretionary function when the record is incomplete, as it is here.” Motion to Amend at 10 (citing Palay v. United States, 349 F.3d 418, 429, 432 (7th Cir. 2003); Parrott v. United States, 536 F.3d 629, 638 (7th Cir. 2008); Ignatiev v. United States, 238 F.3d 464, 467 (D.C. Cir. 2001); Chess v. Pindelski, 2010 WL 234992, at *4 (N.D. Ill. Jan. 15, 2010)(Andersen, J.). C. Warren's main argument, then, is that, on this record, it would be too soon to grant a MTD on the discretionary function exception, because C. Warren has not had an adequate opportunity to undergo the requisite discovery. See Motion to Amend at 11. C. Warren, thus, has made an attempt -- by her proposed Second Amended Complaint -- to develop a more specific factual record to give the Court more robust factual allegations that C. Warren argues suggest the discretionary function exception's inapplicability to the present dispute. See Motion to Amend at 11. C. Warren, however, next uses her Motion to Amend to make the argument that, “regardless of whether amendment is allowed, Plaintiff has set forth sufficient specific allegations to withstand dismissal for lack of jurisdiction.” Motion to Amend at 11.

         C. Warren thus first focuses on her allegations relating to “BOP officials' conduct in negligently placing Mr. Warren and Ashley together in a communal holding cell, ” and states that although the First Amended Complaint was mistaken in its allegation that Ashley was subject to R. Warren's CIM Separation Order,

additional discovery will undoubtedly turn up materials mandating that the two inmates be kept separate from one another, that Ashley be separated from the entire class of inmates to which Mr. Warren belongs, i.e., sex offenders, or that Warren be separated from white supremacist inmates as a whole, or from an entire category of inmates (sex offenders or white supremacist inmates) to which the other belonged.

         Motion to Amend at 11-12. C. Warren also targets the United States' assertion that its liability in this scenario is “dependent solely on its knowledge of a specific threat between Mr. Warren and Ashley, ” a knowledge that the United States contends it did not have, causing C. Warren to argue that BOP “personnel can be liable for inmate-on-inmate injuries if the plaintiff can show ‘that BOP staff knew or reasonably should have known of a potential problem between' inmates.” Motion to Amend at 12 (citing Parrott v. United States, 536 F.3d at 637). Here, then, C. Warren maintains that,

[u]tilizing this more accurate standard of the BOP's duty of care, the BOP's statutory obligation to provide “safekeeping” and “protection” to Mr. Warren under 18 U.S.C. § 4042 was not discharged merely because the BOP lacked knowledge of an identifiable threat between the men. Instead, the operative Complaint sets forth specific allegations that, for example, Ashley's recent protective custody in [solitary confinement] for the protection of sex-offender inmates reasonably [placed] BOP staff [] on notice “of a potential problem” between Mr. Warren and Ashley when BOP placed them together in the [communal holding cell].

         Motion to Amend at 13.

         C. Warren next argues that, regarding the allegations surrounding BOP staff's failure to supervise the communal holding cell wherein Ashley killed R. Warren, “the Court cannot conclude as a matter of law that USP Victorville staff's decision not to monitor the holding cell in which Ashley and Mr. Warren were placed -- or to ensure Ashley's shackles were secured once inside -- were discretionary, ” at least “without the benefit of additional discovery into” relevant local BOP Victorville policies. Motion to Amend at 13. In support of her argument, C. Warren explains that in Keller v. United States, 811 F.3d 1021, 1025 (7th Cir. 2014), the United States Court of Appeals for the Seventh Circuit

considered significant a BOP Program Statement requiring staff to “develop local procedures to clear inmates with a PSY ALERT assignment” to the plaintiff's claim that BOP staff had failed to consider his entire medical profile before releasing him into the general prison population. Since “[t]hose procedures [were] not in the record the panel [could not] conclude as a matter of law that they did not constrain [the staffer's] discretion to place Keller in the general population.”

         Motion to Amend at 13-14 (quoting Keller v. United States, 811 F.3d at 1025). Thus, C. Warren requests that the Court do as the Seventh Circuit did and not grant the United States' MTD without first “knowing the content of local directives, ” which are relevant to the Court's application of the “first prong of the discretionary function exception.” Motion to Amend at 14. Accordingly, C. Warren contends that “the Court cannot determine whether local directives granted USP Victorville staff ‘room for choice' in supervising the R&D area. . . . Nor can the Court determine whether BOP staff failed to comply with those directives, in such a fashion that their negligence would not be shielded by the discretionary function.” Motion to Amend at 14 (quoting United States v. Gaubert, 499 U.S. 315 at 324). In this case, C. Warren remains convinced that “there remains the distinct possibility that institutional policies possibly removed that discretion from Victorville II staff members by mandating a course of conduct in supervising the [inmate transfer] area” and that thus the United States cannot simply “invoke the protection of the discretionary function exception now, without more in the record, by arguing that its general statutory discretion grants it carte blanche discretion in all other decisions.” Motion to Amend at 15 (citing Boyd v. United States, 881 F.2d 895, 898 (10th Cir. 1989)).

         C. Warren next addresses the United States' argument that public policy supports its MTD and responds that “the operative Complaint proffers allegations that USP Victorville's supervision of the [inmate transfer area] was based on grounds other than considerations of public policy, namely, on staffers' negligent supervision of the area.” Motion to Amend at 15. C. Warren states, as an example of the First Amended Complaint's relevant allegations, that she alleged that “BOP Program Statement 5100.08 mandated, among other things, that [s]ecurity inspections are necessary to . . . ensure the security, safety, and good order of the institution; [a]ll areas must be regularly inspected and [s]taff frequently inspect all areas in [the inmate transfer area] accessible to inmates.” Motion to Amend at 15. Accordingly, C. Warren argues that R. Warren's death is evidence that the communal holding cell was not frequently inspected. See Motion to Amend at 15-16. C. Warren thus requests that, “because the Government cannot claim as a matter of law that the challenged conduct was grounded in public policy considerations, ” the Court deny the United States' MTD. Motion to Amend at 15-16.

         C. Warren next addresses her proposed Second Amended Complaint, which she argues the Court should grant leave to file, because it further details how the BOP's designation of Mr. Warren to Victorville II, rather than to an institution commensurate with his low-security classification and program needs, constituted a violation of the FTCA.” Motion to Amend at 17 (footnote omitted). Specifically, C. Warren explains that she has added detail regarding how,

[w]hile BOP Program Statement 5100.08 authorizes employees of the BOP's Designation and Sentence Computation Center (DSCC) to apply a Management Variable . . . to an inmate's designation analysis, by which the inmate may be placed in an institution level inconsistent with the inmate's security score, the BOP's/DSCC's discretion to do so is not unfettered.

         Motion to Amend at 17. Indeed, C. Warren explains that the proposed Second Amended Complaint alleges that the “BOP was permitted to apply a Population Management [variable] to Mr. Warren in a situation in which [he] require[d] housing in a facility which is not commensurate with his or her security level, ” but that, regarding that management variable, the relevant BOP Program Statement 5100.08, offers three example scenarios as to its applicability: “facility activation; population pressures affecting available appropriate-level bed space within 500 miles of the inmate's anticipated release residence; [or] gang/security concerns.” Motion to Amend at 18 (internal quotation marks omitted). Here, accordingly, C. Warren argues that the BOP was not reacting to one of those scenarios in designating R. Warren to Victorville II and that thus her proposed Second Amended Complaint “asserts a plausible claim that the BOP acted beyond the scope of is discretion in misapplying the [management variable] to Mr. Warren, and that this misapplication was a proximate cause of his ultimate death.” Motion to Amend at 18. Although C. Warren concedes that “the general rule is that judicial review of BOP's application of a [management variable] is precluded under 18 U.S.C. § 3625[1], ” she further argues that said “general rule does not apply when BOP fails to adhere to known limits on its discretion.” Motion to Amend at 18. C. Warren maintains, then, that the BOP's inexplicable decision to misapply its own regulations “contravenes public policy” and that the negligent application of the management variable in this case gives rise to liability on behalf of the United States. Motion to Amend at 19.

         The Motion to Amend thus concludes with C. Warren's arguments regarding the standard for granting leave to amend a complaint. See Motion to Amend at 19-21. C. Warren explains that, by her proposed Second Amended Complaint, she aims to:

(1) set forth additional factual allegations showing the range of mandatory directives (including Institutional Supplements and Policy Orders) that were violated by the Government's challenged conduct; (2) jettison her assertion that Ashley was one of the redacted names on the September 3, 2011 CIM [Separation Order] . . .; and (3) add additional factual allegations to her recitation of Ashley's prior history of violent acts against sex offenders.

Motion to Amend at 19. C. Warren also argues that the proposed amendment is made in good faith, and is not the result of undue delay, dilatory motive, or a previous failure to cure any deficiencies. See Motion to Amend at 19-20. Regarding any potential prejudice to the United States, C. Warren maintains that the proposed Second Amended Complaint does not raise substantial new factual allegations or otherwise impact the United States' ability to prepare for trial. See Motion to Amend at 20. Last, C. Warren argues that her proposed amendments are not futile and that they instead

shore up her existing claims by making plain that mandatory directives exist that, when a record is developed, will demonstrate that the BOP was not exercising any discretionary policy judgment in, inter alia, placing Mr. Warren in the same holding cell as Ashley, and then failing to properly monitor them or shackle Ashley.

Motion to Amend at 21.

         3. The Motion to Amend Response.

         The United States responded to the Motion to Amend with the United States of America's Response in Opposition to Plaintiff's Motion for Leave to File an Amended Complaint, filed September 23, 2016 (Doc. 39)(“Motion to Amend Response”). The United States, initially, argues that C. Warren did not seek its position on the Motion to Amend and that the Court should thus deny the Motion to Amend. See Motion to Amend Response at 1. Beyond that procedural argument, the United States opposes the Motion to Amend primarily because “filing Plaintiff's proposed Second Amended Complaint would be futile.” Motion to Amend Response at 1. The proposed Second Amended Complaint would be futile, according to the United States, because even the additional and modified factual allegations fail to bring C. Warren's claims “outside the discretionary function exception to the FTCA.” Motion to Amend Response at 3.

         Ultimately, the United States characterizes C. Warren's proposed amendments as adding allegations that: (i) R. Warren told C. Warren that inmates somehow had enough information about him to have researched his charges, that BOP staff had provided his full name to the other inmates, and that it was known that Ashley used Lexis Nexis services at the prison to identify incoming inmates with sex-offender status; (ii) Ashley had a more significant history of violence than was previously alleged; (iii) BOP had in place an order that R. Warren remain segregated from inmates posing a threat to his safety, namely “influential white inmates known to prey on inmate sex offenders”; (iv) BOP mandated that Ashley be segregated from those to whom he posed risks, such as sex-offender status inmates; (v) BOP failed to secure Ashley's waist chain, in contravention of “BOP Program Statements, Institutional Supplements, and/or Post Orders propounded by the institution”; (vi) BOP failed to attend the communal holding cell in contravention of “BOP Program Statements, Institutional Supplements, and/or Post orders”; and (vii) BOP generally failed to “comply with . . . CIM separation assignments, BOP Program Statements, Institutional Supplements, and/or Post Orders” in its failure to exercise reasonable care to ensure R. Warren's safety. Motion to Amend Response at 2-3. Also, according to the United States, C. Warren's proposed Second Amended Complaint retracts allegations that Ashley was a subject of R. Warren's CIM Separation Order. See Motion to Amend Response at 2. According to the United States, even with these amendments, C. Warren essentially stakes her claims “on the following purportedly negligent or wrongful acts: (1) placement of Mr. Warren at the Federal Correctional Institution II in Victorville, California . . .; (2) failing to keep Mr. Warren and Mr. Ashley separated; (3) inadequate supervision of the holding cell; and (4) failing to tightly secure Mr. Ashley's restraints.” Motion to Amend Response at 4 (internal quotation marks and citation omitted). Those actions, the United States contends, all “fall within the discretionary function exception of the FTCA.” Motion to Amend Response at 4.

         Thus, turning first to the category of C. Warren's allegations regarding BOP's placement of R. Warren at Victorville II, the United States contends that such a designation is subject to the discretionary function exception, and that C. Warren has not proposed any amendments relevant to this allegation. See Motion to Amend Response at 4. That, the United States argues, renders the proposed Second Amended Complaint futile as to this category of allegations. See Motion to Amend Response at 4. The United States next addresses the category of C. Warren's allegations regarding BOP's decision to hold Ashley and R. Warren in the same communal holding cell before their transfers, and argues that, despite the proposed Second Amended Complaint's new factual allegations, “no BOP Program Statement or FCI II Victorville Institutional Supplement or Post Order . . . required separation of Mr. Warren or any class of inmates to which Mr. Warren belonged from Mr. Ashley or any class of inmates to which Mr. Ashley belonged.” Motion to Amend Response at 5. Thus, the United States maintains that BOP “decisions regarding the provision of security, including day to day decisions regarding placement of inmates in holding cells . . . falls within the discretionary function of the FTCA.” Motion to Amend Response at 5.

         The United States then considers the proposed Second Amended Complaint's new factual allegations regarding BOP's failure to securely fasten Ashley's restraints, and argues that “[t]here w[as] . . . no BOP Program Statement or FCI II Institutional Supplement or Post Order [that] mandate[s] specifically how tight to apply restraints.” Motion to Amend Response at 5. Further, because Ashley and R. Warren were in a communal holding cell at the time of the murder, the United States provides that “[t]here were no mandatory requirements that the inmates be restrained in the holding cell.” Motion to Amend Response at 5. The application and tightness of restraints, then, constitutes BOP staff's “discretionary decision made by balancing public policy considerations, ” thus falling “within the discretionary function exception to the FTCA.” Motion to Amend Response at 5-6. Last, regarding the proposed Second Amended Complaint's new factual allegations regarding the BOP's failure to supervise the transferring-inmates' communal holding cell, the United States once more maintains that “there are no BOP Program Statements, Institutional Supplements, or Post Orders that specify how holding cells are monitored.” Motion to Amend Response at 6. The United States thus concludes that all of the additional factual allegations in the proposed Second Amended Complaint nonetheless render the Second Amended Complaint futile, because all of the challenged conduct is subject to the FTCA's discretionary function exception. See Motion to Amend Response at 6-7.

         4. The MTD Reply.

         The United States replied to its MTD and the arguments in C. Warren's Motion to Amend with The United States' Reply in Support of its Motion to Dismiss for Lack of Jurisdiction, filed September 2, 2016 (Doc. 35)(“MTD Reply). The MTD Reply begins by characterizing C. Warren's procedural tactics in the case thus far -- she “essentially concedes the United States' Motion to Dismiss her First Amended Complaint, but seeks to avoid the Motion by filing a Second Amended Complaint.” MTD Reply at 1. The United States next takes the opportunity to, again, detail R. Warren's conduct leading to his conviction and subsequent incarceration, and explain that the United States is nonetheless prosecuting Ashley for killing R. Warren. See MTD Reply at 1-4. The United States then reiterates its argument that the United States enjoys sovereign immunity from C. Warren's claims. See MTD Reply at 4.

         According to the United States, the BOP has been delegated “an enormous responsibility, as BOP has well over 150, 000 federal inmates in custody, ” and that “in carrying out its statutory mandate, BOP has to weigh many competing concerns, including the safety and personal integrity of any single prisoner, the safety and personal integrity of the prison population as a whole, staff safety, public safety, and of course appropriate allocation of limited financial resources.” MTD Reply at 4-5. The United States thus contends:

When, as here, “established governmental policy, as expressed or implied by 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.” . . . This presumption is not limited to decisions at the policy or planning level -- it also applies to decisions made at the operational level.

MTD Reply at 5 (quoting United States v. Gaubert, 499 U.S. at 324-25). The United States thereby requests that the Court grant its MTD, because there are no factual allegations in the First Amended Complaint that the “challenged actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory regime.” MTD Reply at 5.

         The United States then addresses C. Warren's argument that she has not had the opportunity to conduct sufficient discovery to fully substantiate how her allegations remove the challenged BOP conduct from the discretionary function exception. See MTD Reply at 5. According to the United States, it does not oppose helping C. Warren undertake limited discovery regarding the MTD “based on the discretionary function exception to” the FTCA. MTD Reply at 5-6. The United States concedes that, “[a]s a general matter, discovery regarding ‘program statements, institutional supplements, and post orders' specific to Victorville II and Victorville USP appears appropriate.” MTD Reply at 6. The United States argues, however, that C. Warren has not yet made an effort to obtain such discovery. See MTD Reply at 6.

         The United States next argues that C. Warren fails to “alert this Court to a specific mandatory requirement” regarding BOP staff's conduct, and refers only to “one purportedly mandatory obligation . . . [: Program Statement] 5100.08 [which] requires security inspections.” MTD Reply at 6. The United States asserts that, even that Program Statement contains only “non-specific” language, “leaving the frequency of such inspections to the judgment of the BOP official.” MTD Reply at 6. Thus, the United States maintains that any of C. Warren's allegations relying on the ambiguous requirement that the BOP staff make security inspections must fail, because those “alleged non-specific requirements do not defeat the discretionary function exception to the FTCA.” MTD Reply at 7.

         Thus, because C. Warren has not complained of conduct that violates a mandatory “statute, regulation, or policy, ” or pointed to “any particular action that is not the kind of conduct that can be said to be grounded in the policy, ” and instead argues only that the “BOP acted negligently, failed to actually weigh policy considerations in this particular case, or abused its discretion, ” the United States reiterates that the discretionary function exception bars C. Warren's claims. MTD Reply at 7. Regarding C. Warren's argument that the United States had some duty to protect R. Warren, because it allegedly had knowledge of R. Warren's susceptibility to danger at the hands of Ashley and other white inmates, the United States maintains that such an argument does not address whether, as an initial matter, the United States waived its sovereign immunity to such a claim under the FTCA. See MTD Reply at 7-8 n.3. That is, according to the United States, a “[w]aiver of sovereign immunity under the FTCA is subject to the discretionary function exception which applies to any action that involves a discretionary function” -- “‘whether or not the discretion involved be abused.'” MTD Reply at 8 (quoting 28 U.S.C. § 2680). Thus, the United States explains that the United States Court of Appeals for the Tenth Circuit “will first determine whether there is subject matter jurisdiction” before considering arguments regarding an alleged tortfeasor's negligence, because “[p]urported abuse of discretion and negligence have no place in the discretionary function analysis.” MTD Reply at 9. Thus, given the First Amended Complaint's failure to identify a specific mandate that the BOP contravened, the United States argues that the Tenth Circuit would not allow “discovery regarding negligence, ” or “otherwise consider[] the possibility of negligence or abuse of discretion when analyzing whether the discretionary function exception to the FTCA applie[s].” MTD Reply at 12.

         5. The Motion to Amend Reply.

         C. Warren supported her Motion to Amend with the Plaintiff Carol Warren's Reply to the United States' Response in Opposition to Plaintiff's Motion for Leave to Amend the Complaint (Doc. 39), filed January 9, 2017 (Doc. 46)(“Motion to Amend Reply”). C. Warren maintains, in her Motion to Amend Reply, that she has satisfactorily provided additional factual support for

her claim that USP Victorville employees' longstanding, notorious disregard for the safety of sex-offender inmates led directly to the brutal murder of [R. Warren] . . . . To that end, Plaintiff's proposed amendments provide additional examples of the mandatory directives that were violated by the Government in placing Frederick Ashley -- an influential white inmate on the cusp of transfer to a maximum-security prison because of his long history of violence toward sex offenders -- in the same holding cell as Mr. Warren and then failing to properly restrain or monitor him. Plaintiff also sets forth a series of factual allegations detailing Ashley's well known history of violent acts against inmate sex offenders in Victorville. The latter allegations are not mere window-dressing; rather, they provide direct support for Plaintiff's argument that the BOP's duty of care under the FTCA extends to what ‘BOP staff knew or reasonably should have known' regarding the potential for violence Ashley posed to Mr. Warren.

Motion to Amend Reply at 1-2. Accordingly, the balance of the Motion to Amend Reply argues that leave to file the proposed Second Amended Complaint would not be futile, and the Court should grant leave to amend. See Motion to Amend Reply at 2-3.

         C. Warren, then, first addresses the United States' contention in the Motion to Amend Response that she failed to seek the United States' position before she filed the Motion to Amend. See Motion to Amend Reply at 3. C. Warren explains that, because the Motion to Amend doubled as her response to the MTD, it would not have been normal practice to provide the Motion to Amend to the United States before she filed it. See Motion to Amend Reply at 3. In addition, and regardless, C. Warren explains that the United States was involved in “lengthy discussions” with her about the possibility of amending the First Amended Complaint, and that, thus, there is no prejudice to the United States. See Motion to Amend Reply at 3.

         C. Warren next argues that the United States fails to demonstrate that no mandatory directives exist in the record, and that, thus, regarding the evidence the United States proffers in arguing that no such directives exist, in the form of BOP officials' declarations[2] and private documents, she and

the Court are presumably invited to take it on faith that any inconsistencies between [BOP] officials' . . . declarations should be resolved in favor of the Government; that non-public BOP documents [BOP] officials purport to quote but withhold from view say what the Government says they do; and that there is nothing to be gained from allowing Plaintiff to gain access to the documents generated in connection with her husband's murder or the files relating to what was known about the risk of danger posed by his killer.

Motion to Amend Reply at 4. C. Warren then contends that the decision to place R. Warren in the same communal holding cell as Ashley, was, according to her expert -- a prison management consultant -- likely subject to a variety of local Victorville directives and separation orders pertaining to Ashley which C. Warren should be able to attempt to discover. See Motion to Amend Reply at 5 (citing Mark Bezy Affidavit ¶ 11, at 3 (executed January 9, 2017), filed January 9, 2017 (Doc. 46-1)(“Bezy Aff.”)). C. Warren explains that “Transfer Notice and In-Transit Data Forms” likely exist which depict security codes and the level of supervision each inmate requires during transit, and that those forms “have the force of an order, and would have made clear to any BOP employees involved in the transfer process that Mr. Ashley posed a threat of violence to an inmate sex offender like Mr. Warren if they were placed together.” Motion to Amend Reply at 6 (referencing Bezy Aff. ¶ 21, at 5). And, to the extent that the United States is attempting to withhold from discovery any non-public BOP Program Statements or policies that might pertain to placement of inmates in communal holding cells, C. Warren maintains that the Court's in camera review -- as opposed to dismissal of a cause of action -- is the proper way to deal with these sensitive BOP documents. See Motion to Amend Reply at 6.

         C. Warren then addresses the BOP's failure to tighten Ashley's restraints, and argues that, in its Motion to Amend Response, the United States argued only that “no Program Statement, FCI II Institutional Supplement, or Post Order mandated specifically how tight to apply to restraints.” Motion to Amend Reply at 6. This argument, according to C. Warren, does not sufficiently demonstrate the proposed Second Amended Complaint's allegations that the “BOP staffers' failure to secure Ashley's waist chain and shackles was a violation of mandatory directives, which could include Program Statements, Institutional Supplements, and/or Post Orders, ” are futile. Motion to Amend Reply at 6-7. Accordingly, on this issue, C. Warren contends that the record does not, one way or the other, “settle[] the issue of whether the employees' failure to properly restrain Ashley violated the FTCA.” Motion to Amend Reply at 7.

         C. Warren next explains that the proposed Second Amended Complaint proffers several new examples of the types of mandatory directives that were violated by BOP staff in leaving the communal holding cell unattended with Ashley and Mr. Warren inside, including “BOP Program Statements, Institutional Supplements, and/or Post Orders propounded by the institution.” Motion to Amend Reply at 8. Thus, in reply to the Motion to Amend Response, where the United States summarily states that no such directives existed, C. Warren argues that the United States has not satisfactorily demonstrated how her allegations are thereby futile. See Motion to Amend Reply at 8. Accordingly, C. Warren points to the Davis Aff., upon which the United States relies, and argues that the Davis Aff. confirms the existence of BOP Program Statement 5800.12, which requires: “All areas must be regularly inspected. . . . Holding cells should be situated so that staff have visual contact at all times.” Motion to Amend Reply at 8 (citing BOP Program Statement 5800.12). C. Warren then concludes this section of argument by stating that, “because Plaintiff's proposed Second Amended Complaint identifies multiple written orders that were violated by BOP employees, resulting in Mr. Warren's brutal attack and death, amendment would not be futile and should be appropriately granted.” Motion to Amend Reply at 9.

         C. Warren next argues that, in contrast to the United States' argument in the Motion to Amend Response, the United States “potential liability does not hinge on the existence of a written order.” Motion to Amend Reply at 9. C. Warren contends that the United States is failing to “acknowledge the actual duty of care that it owed to Mr. Warren” by focusing its argument on whether “a written order existed that either specifically mandated that Ashley be kept separate from Mr. Warren or prescribed the exact method for restraining an inmate in Ashley's situation.” Motion to Amend Reply at 9. Instead, C. Warren explains that Courts of Appeal have held, in contrast, that “the Government's liability under the FTCA for inmate-on-inmate injuries extends to what BOP staff knew or reasonably should have known regarding a potential threat posed by one inmate towards another.” Motion to Amend Reply at 10 (citing Parrott v. United States, 536 F.3d at 637)(internal quotation marks and emphasis omitted). In making this argument, C. Warren relies on the Seventh Circuit's conclusion that a “district court's inquiry should have extended to what BOP officials should have known about the risks of placing the plaintiff together with his assailant, ” where the district court had, instead, granted summary judgment in favor of the BOP officials -- for a failure to protect claim which an inmate whom was stabbed 22 times by another inmate brought -- by reasoning “that BOP officials could only be liable if they knew of a potential problem between the two inmates before the assault, as demonstrated by some kind of order.” Motion to Amend Reply at 10. According to C. Warren, this interpretation of the duty of care that BOP employees owe inmates, and its interaction with the FTCA, has “been adopted by multiple other federal courts, and has not been rejected by the Tenth Circuit.” Motion to Amend Reply at 10 (citing Brown v. United States, 486 F.2d 284, 288-89 (8th Cir. 1973)(analyzing the BOP's liability in a federal prisoner's failure-to-protect suit in terms of what “the federal government knew or reasonably should have known”); Tyree v. United States, 2016 WL 1128486, at *1 (4th Cir. 2016)(“BOP personnel can only be deemed negligent in violation of [its duty of care] when personnel knew or reasonably should have known of potential problems between inmates.”); Jones v. United States, 2012 WL 3777076, at *6-7 (N.D. W.Va. 2012)).

         C. Warren's argument, then, is that:

Indeed, the widespread acknowledgment of the BOP's broader duty of care is of a piece with a larger body of case law which makes it clear that, if the FTCA is to have any application at all, the discretionary function exception cannot swallow the rule. These cases make it clear that every dangerous decision made by federal actors that was not specifically forbidden by written regulation cannot be mechanically rubber-stamped a discretionary act.

Motion the Amend Reply at 11 (citing Soldano v. United States, 453 F.3d 1140, 1150 (9th Cir. 2006)(holding that the National Park Service's general discretion to design a road did not allow it to disregard “basic, scientific safety specifications” by failing “to set a speed limit consistent with [its] design choices”)). That is, even though there is no “specific directive for employees of a federal agency to keep an open flame away from gasoline, ” C Warren asserts that, should a federal employee choose to light a fire by gasoline, “it would be absurd to dismiss the suit of a citizen injured in the subsequent explosion on account of the discretionary function exception.” Motion to Amend Reply at 11 (internal quotation marks omitted). According to C. Warren, that logic suggests that

even if the Government's submissions convince the Court that no specific written order exists in the record that could have saved Mr. Warren from being tortured to death by Ashley, the Government nevertheless remains liable under the FTCA, for blatantly ignoring ample evidence of the direct threat to Mr. Warren that Ashley posed.

Motion to Amend Reply at 12.

         C. Warren last argues that the United States, nonetheless, has failed to demonstrate the applicability of the discretionary function exception to the FTCA, because it has failed to demonstrate how its “negligent supervision” of the transferring-inmate communal holding cell was otherwise “grounded in public policy considerations, ” which is necessary to justify its exercise of discretion. Motion to Amend Reply at 12 (citing United States v. Gaubert, 499 U.S. at 325 (setting forth the second prong of the “discretionary function exception” test, which requires the court to determine that “the judgment or choice in question [is] grounded in considerations of public policy or susceptible to policy analysis” for the exception to apply); Hardscrabble Ranch, L.L.C. v. United States, 840 F.3d 1216, 1223 (10th Cir. 2016)(explaining that “the discretionary action must be based on the purposes of the applicable regulatory regime”)). According to C. Warren, where there is a risk of serious danger there cannot be a policy consideration that justifies the United States' “inattentiveness or failure to intervene.” Motion to Amend Reply at 13 (citing Andrulonis v. United States, 952 F.2d 652, 655 (2d Cir. 1991)(holding that the “discretionary function exception” was inapplicable to a Center for Disease Control scientist's failure to maintain safety procedures and to warn laboratory workers about a dangerous rabies sample to which he had exposed them)). Thus, C. Warren concludes the Motion to Amend Reply by arguing that the “USP Victorville employees failed to do their jobs when they left a communal holding cell completely unmonitored for over two hours, and then Government cannot shield itself by claiming that this egregious failure was motivated by some nebulous policy decision.” Motion to Amend Reply at 14.

         6. The February 22, 2017, Hearing.

         The Court held a hearing on February 22, 2017. See Draft Transcript of Hearing, taken February 22, 2017 (“Tr.”).[3] The Court first indicated that “what's going to need to be done is I'm just going to have to sit down and craft an opinion that deals with each one of these incidents that the plaintiff want[s] me to focus on and see what's left and then see if the amended complaint would assist in any way.” Tr. at 3:6-11 (Court). The United States, accordingly, suggested that the Court hear argument broken into the categories of different conduct which C. Warren alleges give rise to federal jurisdiction over her claim. See Tr. at 3:19-4:3 (Keegan).

         Those categories are: (i) the BOP's broader duty to protect R. Warren; (ii) the BOP's decision to house R. Warren at Victorville II; (iii) the BOP's placement of Ashley and R. Warren in the same communal holding cell; (iv) the BOP's failure to securely tighten Ashley's waist chain; and (v) the BOP's failure to frequently inspect and supervise the inmate transfer area where the communal holding cell was situated. See Tr. at 4:7-14 (Keegan). Regarding the first category, the BOP's broader duty to protect R. Warren, the United States maintained that such a duty was irrelevant, as “[t]he question before the Court is whether there is a specific action . . . falls either within or . . . outside of the discretionary function exception, ” and a “broad duty to protect” falls within the FTCA's discretionary function exception. Tr. at 5:1-5, 5:15-17 (Keegan). C. Warren then explained that “what I hear the Government saying is there is not a specific enough mandate that we have alleged that the defendants have violated in order to give federal jurisdiction.” Tr. at 6:5-9 (Lowry). C. Warren argued that, “if the United States had information that they knew or reasonably should have known about a specific threat to Mr. Warren then they under this broader duty, combined with this specific information . . . they would have had a duty even under the [FTCA] to step in and neutralize that threat.” Tr. at 6:23-7:4 (Lowry). The Court pressed C. Warren, however, to identify a statute, regulation, or interpretation that took “discretion away from the offers to how they handle a certain situation, ” Tr. at 10:9-13 (Court), to which C.

         Warren suggested:

The Court is absolutely right that you would be looking for some sort of either a statute, a policy decision, a regulation or some type of interpretive guideline that would dictate whether or not discretion was in play under the circumstances. But that doesn't necessarily end the analysis, and I agree with the United States presentation of the issue, it's a two part analysis. The first is was it a discretionary act. And even if it is a discretionary arrangement[] then the Court has to look at [whether] that the type of discretionary act . . . was grounded in policy considerations that warrant the application of the discretionary function exception. So it's still a two part test. And what we're suggesting taken in this broader overview, even if one conceded that the Bureau of Prisons might have and actually in terms of [ma]ny facets of their operation broad areas of discretion to how they place inmates and where they place inmates, and how inmates commingle together, that when they're faced with specific and actionable information that you know, possible violence might erupt under given circumstances, that even in the absence of a controlling statute or regulation or policy that they would have a duty to step in because there is frankly no public policy consideration that would address that kind of even concededly discretionary act, that some decisions are so far removed from any you know viable policy consideration that it's that attenuated from public policy to be worthy of the application of discretionary function.

Tr. at 10:16-11:21 (Lowry)(emphasis added). C. Warren then cited Palay v. United States, 349 F.3d at 429-32, a Seventh Circuit case that undergoes a broader FTCA analysis by stating, in dicta, that one theory of relief for an inmate injured by prison exercise equipment might involve looking at whether negligent “routine maintenance and inspections [are] worthy of a policy consideration that invoke[s] the discretionary function exception.” Tr. at 13:3-5 (Lowry). In a case such as Palay v. United States, C. Warren argued, “there is no viable policy consideration at issue for failing to stop a situation that would knowingly be violent about which the Government [k]new or should have known.” Tr. at 13:21-24 (Lowry). C. Warren maintained, however, that she was not wholly dropping her original argument that positive regulations nonetheless existed and were not followed, pointing specifically to her belief that secondary discovery would yield such regulation, perhaps in the form of “transit data forms, ” or some other orders and paperwork relating to Ashley's detainment, as opposed to R. Warren's. Tr. at 14:2 (Lowry). According to C. Warren, Ashley was a known-violent offender, whose underlying conviction entailed violence -- armed bank robbery -- and who had, on multiple occasions, attempted to murder and assault other inmates, particularly those with sex-offender status. See Tr. at 14:8-16 (Lowry). The Court, however, posited that there was “enough here” to “assume that Ashley is a pretty violent person, and the Government was on notice of that . . . [but] the Government i[s] not coming in and really refuting that, ” and instead, the United States is making a threshold jurisdictional argument in its MTD. Tr. at 14:17-25 (Court). In fact, the Court indicated, that “it seems to me that probably you've teed it up pretty much in your favor. Ashley is a violent person and the Government knew it, ” and “I have enough of a sense as to White Supremacist and Aryan Brotherhood for example how they feel about people that engage in child pornography . . . I think that probably [that] inference would go your way.” Tr. at 15:7-10; 21-24 (Court).

         C. Warren then argued regarding her concerns about the limited discovery thus far in the litigation, and how it would be premature to grant a MTD at this stage, because

the jurisdictional issue is so intertwined with the facts of this case that it would be premature for the judge to cast judgment on this particular jurisdictional issue at this time until plaintiffs were provided the opportunity to get discovery to support the claim. Because the standard is when the Court examines this, it can, is the Government successful in showing that the plaintiffs can't come up with any conceivable set of facts that would warrant federal jurisdiction in this case and what I'm attempting to suggest to Your Honor through this argument both now and throughout the entire afternoon will be that the plaintiff can develop a set of facts if given the right to discovery.

Tr. at 16:15-17:4 (Lowry). The Court, though, continued to press C. Warren, stating:

I'm sitting here saying I think I can assume those facts [that Ashley was violent, particularly toward sex-offender status inmates] to write an opinion[, ] I guess I'm wondering how much more discovery would really be useful before we go ahead and ...

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