Kristopher DYKSTRA, Appellant, v. UNITED STATES BUREAU OF PRISONS; Richard Rison, Former Warden, MCFP; Robin Durbin, Case Manager, MCFP; Max Pulley, Senior Officer Specialist, MCFP; Kevin Houck, Correction Supervisor, MCFP; William Bennett, Counselor, MCFP Springfield; Unknown Guard, on Unit 10-F, MCFP, Springfield, Appellees.
No. 97-3410.
United States Court of Appeals, Eighth Circuit.
April 6, 1998.
140 F.3d 791
Submitted Jan. 22, 1998.
In Brewer, we held that the term “mental illness” should be considered from a layperson‘s reading and is therefore not ambiguous and that the plaintiff‘s affective mood disorder, regardless of the cause, was what a layperson could consider a “mental illness.” 921 F.2d at 153-54. So also here, Prudential‘s limitation of coverage for “mental, psychoneurotic and personality disorders” is unambiguous and is applicable to the treatment of Jane Doe‘s major affective disorder.
The order dismissing Count II is reversed, and the case is remanded to the district court for further proceedings on that portion of Prudential‘s complaint. The order granting summary judgment in favor of Prudential on Count I is affirmed.
Earl W. Brown III, Springfield, MO, argued (Stephen L. Hill, U.S.Atty., on the brief), for Appellee.
Before MCMILLIAN, FLOYD R. GIBSON and BOWMAN, Circuit Judges.
BOWMAN, Circuit Judge.
Kristopher Dykstra brought a Bivens1 action against the United States Bureau of Prisons alleging that prison officials violated his rights under the Eighth Amendment. He also sued under the Federal Tort Claims Act (FTCA),
Dykstra appeals, arguing that the District Court erred in dismissing under the discretionary function exception his FTCA claim that prison officials were negligent in failing to protect him from an assault. He also asserts that the District Court‘s findings regarding his PTSD treatment are clearly erroneous.2 We affirm.
I.
Dykstra pleaded guilty to bank robbery. Prior to his sentencing, Dykstra was sent to
After the assault, Dykstra was transferred several times. From USMCFP, officials transferred Dykstra to a correctional facility in Talladega, Alabama. Upon his arrival, Dykstra met once with a psychologist. Despite their knowledge of the assault that had taken place at USMCFP, Talladega prison officials did not follow up with Dykstra after the initial psychologist‘s meeting to inquire whether Dykstra wanted to continue therapy. On the other hand, Dykstra exhibited no PTSD symptoms and did not ask for therapy. Dykstra began suffering from severe kidney problems and was transferred to a correctional facility in Carville, Louisiana.
At Carville, Dykstra saw a psychologist at intake and indicated that he wanted treatment. Carville officials encouraged Dykstra to return to psychology services as needed for counseling, but Dykstra never sought counseling at that facility. Dykstra continued to experience kidney problems. From Carville, Dykstra was sent to a medical center for federal prisoners in Rochester, Minnesota.
At Rochester, Dykstra exhibited symptoms of PTSD and asked to see a psychologist. His request was honored within two days. Dykstra began psychotherapy sessions with a psychologist and was seen twice by a psychiatrist. After his kidney condition improved, he was transferred to a prison camp in Marion, Illinois.
At Marion, Dykstra was provided the opportunity to meet regularly with a counseling intern. Dykstra met with the intern on a weekly basis, but discontinued the sessions because he claims he found them unhelpful. Dykstra testified that he recalled requesting medication from the prison psychologist, but that the doctor never responded to his request. While at Marion, Dykstra left the prison camp for a rendezvous with his girlfriend. They met in a motel room located in a nearby town, and Dykstra returned to camp a few hours later. Because of this misconduct, Dykstra was housed at the Williamson County Jail for a brief period and then transferred to a correctional facility in Sandstone, Minnesota.
At Sandstone, Dykstra was seen multiple times, both by psychiatrists and psychologists. The doctors monitored Dykstra‘s medication and consulted with him periodically. During this time, Dykstra was getting into disciplinary trouble and, as a result, was again transferred, this time to a correctional facility in Pekin, Illinois.
Upon Dykstra‘s arrival at Pekin, the psychology department did an initial screening and discontinued his medication. The medication was restarted several weeks later. Thereafter, Dykstra complained about his medications. Each request for a change in
II.
Dykstra first contends that the District Court erred in dismissing his claim that prison officials at USMCFP were negligent in failing to protect Dykstra from a sexual assault. We review de novo a district court‘s grant of a motion to dismiss under the discretionary function exception to the FTCA. See Tracor/MBA, Inc. v. United States, 933 F.2d 663, 665 (8th Cir.1991).
We begin with the fundamental rule that the United States cannot be sued without a waiver of its sovereign immunity. See United States v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 1975-76, 48 L.Ed.2d 390 (1976). The FTCA waives sovereign immunity and allows suits against the United States for personal injuries caused by governmental employees acting within the scope of their employment. See
The Supreme Court has developed a two-step test to determine whether the discretionary function exception applies, thereby barring the claim. See Berkovitz v. United States, 486 U.S. 531, 536-37, 108 S.Ct. 1954, 1958-59, 100 L.Ed.2d 531 (1988). For the exception to apply, the first step requires that the challenged governmental action be the product of “judgment or choice.” United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 1273, 113 L.Ed.2d 335 (1991) (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958-59). Under this step, we must determine whether a statute, regulation, or policy mandates a specific course of action. If such a mandate exists, the discretionary function exception does not apply and the claim may move forward. When no mandate exists, however, the governmental action is considered the product of judgment or choice (i.e., discretionary), and the first step is satisfied. The second step requires that the judgment or choice be based on “considerations of public policy.” Id. at 323, 111 S.Ct. at 1274 (quoting Berkovitz, 486 U.S. at 537, 108 S.Ct. at 1959). Under this step, we determine whether the judgment is grounded in social, economic, or political policy. If the judgment of the governmental official is based on any of these policy considerations, then the discretionary function exception applies and the claim is barred.
Dykstra bases his negligence claim on two decisions made by prison officials. The first was counselor Bennett‘s decision not to inform Dykstra that his youthful appearance placed him at risk if he were not placed in protective custody. The second was the correctional officer‘s decision not to place Dykstra in protective custody or to take any other action when Dykstra told the officer a fellow inmate had been staring at him. We examine each in turn.
With respect to counselor Bennett‘s decision, Dykstra claims that prison regulations require prison personnel to obtain an informed waiver of protective custody. Dykstra argues that, because a specific course of action was mandated, Bennett was in violation when he failed to warn Dykstra that his youthful appearance made him vulnerable to attack. Significantly, however, Dykstra points to no regulation that required a warning by Bennett in this situation. No regulatory mandate exists, so we move to the second step.
When established policy allows governmental agents to exercise discretion, “it
With respect to the correctional officer‘s decision to take no action on the basis of Dykstra‘s statement that another inmate had been staring at him, there is no regulation that mandates a specific course of action in such circumstances. Dykstra did not specifically name an inmate, nor did he mention any threats, so there was nothing to cause the officer to take any particular action, and the applicable regulations grant to the prison officials broad discretion in determining whether to place an inmate in protective custody:
The Warden may . . . place an inmate in [protective custody] when the inmate‘s continued presence in the general population poses a serious threat to life, property, self, staff, other inmates or to the security or orderly running of the institution and when the inmate . . . [r]equests admission to [protective custody] for the inmate‘s own protection, or staff determines that admission to . . . [protective custody] is necessary for the inmate‘s own protection (see § 541.23).
Because the regulations expressly grant discretion, we presume the prison officials’ actions are grounded in public policy. See Gaubert, 499 U.S. at 324, 111 S.Ct. at 1274-75. Dykstra asserts, “There is no claim by the United States that a policy decision was made not to respond to a threat.” Appellant‘s Brief at 20. But it is Dykstra, not the United States, who must assert facts that show the decision was not based on policy considerations; he has not done so, and probably could not succeed in doing so in any event. Prison officials supervise inmates based upon security levels, available resources, classification of inmates, and other factors. These factors upon which prison officials base such decisions are inherently grounded in social, political, and economic policy. We have no difficulty in concluding that the discretionary function exception applies to the correctional officer‘s decision not to place Dykstra in protective custody or to take other protective action.
We now turn to Dykstra‘s final issue on appeal. The District Court entered judgment in favor of the government on Dykstra‘s claim that prison officials negligently treated his PTSD. The court found that the Talladega facility was negligent in treating Dykstra‘s PTSD, but that Dykstra was contributorily negligent, thus barring recovery under Alabama law.5 The court found none of the other facilities was negligent. We review a district court‘s findings of negligence vel non under the clearly erroneous standard. See Davis v. Liberty Mut. Ins. Co., 55 F.3d 1365, 1367 (8th Cir.1995). A finding is clearly erroneous if it is not supported by substantial evidence. See Norwest Capital Management & Trust Co. v. United States, 828 F.2d 1330, 1335 (8th Cir.1987).
The court‘s finding that none of the other correctional facilities was negligent in treating Dykstra‘s PTSD was also supported by substantial evidence. At Carville, Dykstra did not complain about any PTSD symptoms, nor did he receive any treatment. But unlike officials at the Talladega facility, prison officials at Carville encouraged Dykstra to seek psychological help. At Rochester, Dykstra requested psychological services for the first time. Within two days, Dykstra met with a psychologist and continued therapy sessions until his departure from Rochester. At Marion, Dykstra received counseling from a psychological intern until Dykstra himself terminated the sessions. At Sandstone, an intake evaluation noted that Dykstra‘s symptoms were not acute and that there was no reason to treat him on an emergency basis. Dykstra was seen at least seven times while at Sandstone and his medications were adjusted there. At Pekin, officials discontinued Dykstra‘s medications but restarted them at his request without delay. Pekin officials gave Dykstra a variety of medications, but Dykstra decided they were unhelpful and discontinued their use. The District Court‘s finding that none of these correctional facilities was negligent is not clearly erroneous.
III.
We hold that the discretionary function exception to the FTCA bars Dykstra‘s claim that prison officials were negligent in failing to protect him from the assault and therefore affirm the District Court‘s dismissal of that claim. We also affirm the District Court‘s judgment in favor of the United States on Dykstra‘s claim that prison officials were negligent in treating his PTSD.