83 F.4th 534
6th Cir.2023Background
- L.C., a federal inmate at FMC Lexington, alleges repeated sexual assaults and harassment by BOP employee Hosea Lee beginning in August 2019; she later tested positive for oral and genital herpes.
- L.C. claims the Bureau of Prisons (BOP) knew or should have known of Lee’s propensity for sexual misconduct and failed to enforce its zero-tolerance PREA-based policies by not timely reporting and investigating allegations.
- The BOP asserts it first learned of problems on November 22, 2019, after independent inmate reports; investigators interviewed L.C. on November 25, 2019 (she did not then disclose the assaults); Lee resigned January 15, 2020, and later pleaded guilty to federal sexual-abuse charges.
- L.C. filed an FTCA negligence claim against the United States alleging failure to timely report and investigate under BOP Program Statement 5324.12 (implementing PREA). The district court dismissed, invoking the FTCA discretionary-function exception and, alternatively, Rule 12(b)(6) for failure to plead facts showing BOP knew earlier.
- The Sixth Circuit held that Program Statement 5324.12 and related BOP directives impose mandatory duties to report and promptly investigate staff-on-inmate sexual abuse (thus not covered by the discretionary-function exception), but affirmed dismissal because L.C.’s complaint did not plausibly allege that BOP officials had reportable information before November 22, 2019.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the FTCA discretionary-function exception bars an FTCA negligence claim alleging failure to report/investigate staff-on-inmate sexual abuse | Program Statement 5324.12 and related BOP policies impose mandatory, non-discretionary reporting and investigatory duties under PREA, so the DFE does not apply | Decisions to report/investigate are discretionary and thus shielded by the DFE | The court held the DFE does not apply where BOP policy imposes specific mandatory duties to report and investigate staff sexual abuse |
| Whether Program Statement 5324.12 and related policies create mandatory, non-discretionary duties | Program Statement 5324.12, §115.61, §115.71, and Program Statement 3420.11 require immediate (no later than 24 hours) reporting and prompt, documented investigations — mandatory directives | BOP argued some duties alleged are discretionary and that general statutory duties (e.g., 18 U.S.C. §4042) are non-mandatory | The court held the Program Statements contain mandatory directives requiring timely reporting and investigation |
| Whether failure to report/investigate is "susceptible to policy analysis" (second Gaubert prong) | No: there are no legitimate social, economic, or political policy reasons for failing to report/investigate staff sexual abuse; choices would be personal (coworker loyalty, fear, laziness) not policy-driven | Yes: decisions about inmate safety fall within policy considerations (invoking Montez and other cases about inmate-on-inmate safety) | The court held such failures are not the kind of discretionary policymaking the DFE protects |
| Whether L.C.’s complaint sufficiently pleaded that BOP had reportable knowledge before Nov. 22, 2019 (12(b)(6) sufficiency) | Allegations and statements (e.g., counselor said Lee had been reported “a long time ago,” medical staff comments) support an inference that BOP knew earlier | BOP argued the complaint lacked facts showing staff had reportable information prior to Nov. 22, 2019 | The court held L.C. failed to plead facts plausibly showing BOP officials knew of Lee’s conduct before Nov. 22, 2019 and affirmed dismissal on pleading grounds |
Key Cases Cited
- Kohl v. United States, 699 F.3d 935 (6th Cir.) (discusses FTCA waiver and exceptions)
- Cartwright v. Garner, 751 F.3d 752 (6th Cir.) (facial vs. factual attacks on jurisdiction)
- Gaubert v. United States, 499 U.S. 315 (1991) (two-prong discretionary-function test)
- Berkovitz v. United States, 486 U.S. 531 (1988) (discretionary-function framework)
- Varig Airlines v. U.S. (S.A. Empresa de Viacao Aerea Rio Grandense), 467 U.S. 797 (1984) (purpose of DFE: avoid second-guessing policy decisions)
- Rosebush v. United States, 119 F.3d 438 (6th Cir.) (mandatory regulatory directives remove discretion)
- Milligan v. United States, 670 F.3d 686 (6th Cir.) (application of DFE)
- Montez v. United States, 359 F.3d 392 (6th Cir.) (contextual discussion of inmate-on-inmate safety and DFE)
- Calderon v. United States, 123 F.3d 947 (7th Cir.) (BOP decisions about inmate interactions involve policy balancing)
- Dykstra v. U.S. Bureau of Prisons, 140 F.3d 791 (8th Cir.) (BOP allocation of resources and protective custody involve policy considerations)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard: plausibility required)