*1 PARROTT, Roy Sylvester
Plaintiff-Appellant, America,
UNITED STATES
Defendant-Appellee.
No. 06-1489. of Appeals,
United States Court
Seventh Circuit. 19, 2007.
Argued Sept.
Decided 2008.
630 officials at Terre Haute
Because property his and negligently mishandled away permission, without his Parrot sent good. him for argues, it is now lost to prompted Parrott to sue These events the States and several BOP em United Act ployees under the Federal Tort Claims 2671-2680, (“FTCA”), §§ 28 U.S.C. (1) being him protect for failure to (2) inmate, negli and attacked another handling personal property. of his gent Wilson, Muchin Rosen- Peter R. Katten The district court dismissed United man, IL, Chicago, Plaintiff-Appellant. for and individual defendants States several Stern, Department Mark of Justice CM complaint after under 28 pre-screening Division, Section, Fleisig- Eric Appellate 1915A, granted and then it sum U.S.C. Greene, Department of Justice Civil Divi- mary judgment remaining in favor of the DC, sion, Staff, Washington, Appellate for and appealed, defendants. Parrott against that the claims the indi Defendant-Appellee. court held dismissed, were employees properly vidual BAUER, MANION, WOOD, Before against but that those States Judges. Circuit should have been retained. We thus sent court for the case back the district WOOD, Judge. Circuit proceedings further on Parrott’s FTCA appeal This marks this court’s second against claims the United States. See Roy Sylvester with Parrott. On encounter Gehrke, (7th Parrott v. Fed.Appx. 908 Parrott, I). 11, 2001, then incarcerated at Cir.2004) (Parrott Haute, Penitentiary in Terre U.S. grant The remand resulted sum- Indiana, face, stabbed times in the mary on judgment against Parrott both of inmate, head, and arm another Kenneth challenging his claims. addition to attack, Gregory. As a result of the Par- Parrott, appeal, ultimate decision on who rott suffered serious lacerations to his pro se represented throughout himself shoulder, forehead, ear, eyes. Shortly proceedings, argues district court also hospital after his release from the some the district court erred it denied when later, pro- two weeks Parrott was discovery various Parrott as- motions. being cess of transferred Wallens handling serts that the district court’s prison Virginia. Though Ridge, state discovery provides independent an basis eventually made it to the new in- reversal, particularly on the failure-to- stitution, personal property did not. him, protect agree claim. We with and we (“BOP”) Instead, Bureau of staff Prisons therefore remand the case to the district at the Terre Haute institution sent Par- discovery for further again court once sister, property rott’s to his who lives negli- question whether BOP officials who, Virgin Islands and gently protect Greg- because failed to Parrott from policies Ridge, ory’s is now forbidden assault. Wallens to send Parrott’s back to him. I BOP insists that Parrott instructed its to his ship staff to sister. Because this case reaches us on sum- mary judgment no for the United thing. Parrot retorts he did such dent, disciplined the facts and draw inferences neither of whom was construe Parrott. as a light most favorable to result of the confrontation. Myers, Steen date, That same June Terre *3 Cir.2007). Parrott’s term of incarceration Haute Harley Lappin prepared Warden G. prison began in Terre Haute at the federal Incident,” “Report a of the describing the I, in in Parrott May of 1997. As we noted altercation Gregory between Parrott and separate claims from two events. arise response and the Prison’s it. Though to First, July on as Parrott was the eventually, repeated Government after working Greg- in the kitchen with Kenneth Parrott, requests produced from two ver- cellmate, ory, Gregory his former attacked report sions of during proceedings the a Parrott with kitchen knife and inflicted below, heavily both versions are redacted. face, to multiple stab wounds (Indeed, more has been removed than has head, arms, was, and chest. This assault review.) They been left for indicate that unfortunately, predictable light in the inmates involved in the incident were bad that had existed between Par- blood placed separate following in con- cells the Gregory year. rott for at least a The and frontation, also reflect that Par- 17, 2000, January two on became cellmates Category” “Separation.” rott’s was “CIMS Special in the sharing quarters Prison’s (“CIMS” refers to BOP’s Central Inmate (“SHU”), Housing Unit to which inmates Monitoring System. See 28 C.F.R. assigned disciplinary segregation are §§ explain significance 524.70-76. We the During and administrative detention. moment.) “Separation” status cellmates, Gregory happened their as time report placed reflected that it was to to learn the name and address of Parrott’s the “Inmate Central File” and noted that ex-girlfriend, Mechling. A few Jennifer was, report the incident at the time the later, assigned was Gregory months to made, investigation. under further there, different cell. From armed with report both versions of the that are in the information, Gregory contact Mechling’s record, any and all information about harassing began to write letters to her. Gregory been has redacted BOP. April learned of these letters in redactions, can Because of complained to BOP at time. separated infer is that Parrott was to be someone; couple way Within a months of Parrott’s from there is no to tell from complaint Gregory, According regula- to BOP about the Pris- whom. to the relevant tions, placed “Separa- on the two former cell-mates in a CIMS classification (The together. designates recreation area record is tion” who “[flnmates (unless not clear on the details of inmates’ recre- be confined in the same institution time, suggests ability prevent ation but it time such institution has strictly regimented, pris- any physical and that contact the inmates some between concerned) isolated, completely specified oners remain while with other individu- permitted custody. others are to share the “recre- als” in federal 28 C.F.R. added). inmates.) 524.72(f) Thus, cage” (emphasis ation with As if at other restraints, placed Par- staff Parrott and officials removed Parrott’s time area began Gregory, Gregory together rott to strike who re- the recreation separation mained in cuffs and therefore did not were on status two other, quickly strike back. Prison officials inter- each then the Terre Haute men, separate regulations violated own and or- vened to and restrain both BOP’s this was injured neither of whom was in the inci- ders. do not know whether We 2, 2001, for Warden Report August dated case, that informa- for BOP redacted Parrott, report confirmed Lappin; Coleman’s reports provided from the tion previously effect separation refused either order the district court (as Lappin’s of a non-redacted indicated on June production compel time of report place full remained report) or even to view the version revealed, 2001. Cole- see if it the kitchen assault camera to not, however, does mention Gregory report was indeed man’s suspects, kept apart. in Par- Parrott was to be individual” referenced from whom “specified separation rott’s order. *4 Parrott’s The incident that underlies 7, 2000, dust-up, Parrott After the June shortly after his property claim occurred 5, 2001, July in the until remained SHU an hospital. from the Under release gen- Prison’s he returned to the when was agreement Department between the U.S. dispute population. There is some eral Virgin Depart- of and the Islands Justice whether, time, at that question over Corrections, Parrott and several ment of that signed indicating a statement Parrott prisoners were scheduled for other federal general popula- he wished to return to the Fa- Ridge transfer to Correctional Wallens that regarding no concerns tion and had in the state cility, a nonfederal institution return, purporting prison to release 25, 2001, July prison staff Virginia. of On liability in the event that Par- staff from belong- brought personal Parrott and his injured” or as a result. rott was “killed receiving and dis- ings to Terre Haute’s document, signing such a Parrott denies area, charge processed where he was to be argues alleged and further waiver time, employ- for transfer. At this would be ineffective to relieve BOP of inventory took an Stephen ee Girton liability signed something. if even he had and advised Parrott Parrott’s opposite position, but since out) BOP takes (wrongly, it turned that restrictions dispute signing question over is a Ridge prevented the Terre at Wallens fact, that stage we must assume at this shipping all of Haute thing. Parrott did signed Parrott no such belongings facility. to the new at the time his release that not know a memo- The basis for Girton’s advice was too, Gregory, general pop- was back in the Dubbs, Dwayne randum from R. BOP’s ulation. Coordinator, Transportation Inmate sent (the Memo”), July on “Dubbs certainly found out no more BOP staff in Terre Haute which advised later, days than six types personal property that certain in circulation. Gregory was back On Ridge. permitted were not Wallens The day, assigned Greg- Prison Parrott and pris- Dubbs Memo listed the names kitchen, ory to the same work detail in the stated that oners to be transferred and Gregory’s attack occurred. The rec- Ridge personal prop- has a strict “Wallens photographs ord contains taken after the personal erty policy and does not allow extent of Par- incident. These show the exception the items clothing with the wounds, which included a half-inch rott’s items, Hobby craft nail identified below. head, gash deep in the center of his scissors are not author- clippers, and small eye. hospi- cuts above his left Parrott was Directly paragraph ized.” below that was approximately talized for two weeks fol- clothing permitted personal the list of inci- lowing the incident. Also after the items: dent, Special Investigative Assistant BOP
Terry Investigative pair an One of shower shoes prepared Coleman shoes, prohibited (e.g., shorts items FILA tennis of white athletic pairs
Six pairs pants, three of sweat two sweat with undershirts or T-shirts Six white shirts, may clippers) things and few pockets sleeves/no passed Ridge’s or not have Wallens shorts of white boxer pairs Six (three T-shirts, pair restrictions one of un- handkerchiefs, white Six derwear), nearly all of the items orange cap, baseball blaze One possessions, three boxes of which con- any Memo did not list other The Dubbs owned, permissible tained all that he were personal property restrictions on under the Memo. Dubbs prisoners being transferred to Wallens (inaccurately) After Girton told Parrott personnel it instruct BOP Ridge, nor did about how little could be sent on to Wal- handle the transfer of inmates’ how to Ridge, reported lens Girton fact, has a property. BOP personal it, just my said “screw send all stuff to this transfers. Its writ- protocol address, stated, address.” Girton responsible instructs the official policy ten sister, that of Parrott’s who lives in the ship both authorized and unauthorized *5 Virgin Interpreting Islands. this as an institution receiv- personal property to the instruction, proceeded Girton ship specifies ing prisoner the transferred property again, three boxes of Parrott’s property is personal the inmate’s — “[i]f everything Virgin that he owned—to the the receiv- not authorized retention Islands. institution, ing receiving staff at the insti- inmate’s arrange
tution shall
for the
excess
things differently:
Parrott recalls
he de-
a non-
personal property to be mailed to
instructing
belong-
nies
Girton to send his
destination of the inmate’s choice.”
Bureau
ings to his sister. While the Government
553.14(b)
added).
§
(emphasis
28 C.F.R.
provided
insists
Parrott
her address
inventory
signed
on the
forms and
that “inmates at
Girton’s affidavit states
receipts directing
property
his
to his sis-
Ridge
severely
are
limited
Wallens
address,
says
personal
ter’s
he
that his
pos-
can
amount of allowable items
copies of the forms
his
do
include
example,
clothing,
sess. For
excess
elec-
Moreover,
tronics,
items, books,
sister’s name or address.
he
personal
and other
provide
if
shipped
asserts that even
he did
non-listed items were not to be
address,
directly
negate
to the
with the inmate.”
sister’s
that would not
out,
points
negligence
providing
As Parrott
statement
incorrect
Girton’s
BOP’s
“prohibited”
property
far more items as
information about the
restrictions
classifies
Indeed,
Ridge.
negli-
at
Because of this
than the Dubbs Memo does.
Wallens
de-
inventory
gence,
argues,
forms contained
the record
he has been
majority
prived
personal property,
that the
of Par-
forever of his
demonstrate
vast
batteries, books,
reach his sister
(e.g.,
legal
though
rott’s items
even
the boxes did
materials, letters,
Ridge
ballpoint pen, personal
Virgin
a
Islands. Wallens
floss, deodorant,
in a
papers, photos,
accepted
would have
dental
oil,
dish,
prison,
but
soap, soap
hairbrush/pick,
hair
a
direct transfer from
federal
(like
Noxema, shampoo,
bag, eyeglasses,
many prisons)
tightly
it
restricts the
shave
case,
radio,
bowl,
Sony
receive
eyeglass
cup,
a
sources
which inmates
books)
laundry
Operating procedures at Wal-
bag,
and two address
new items.
provide
“[personal proper-
Ridge
were not included on the Dubbs Memo’s
lens
delivery
ty may
by mail or
prohibited
Ridge.
list of items
at Wallens
not be received
any
other than an
Though
possess
it seems Parrott did
some
service from
source
it establishes
for administrative ad
Property
mail order vendor.
rules
approved
claims, 2672;
justment
requires
§
it
ex
any
may not be received from visitors or
remedies,
haustion
administrative
Dep’t
other source.” Va.
of Corrections
2675;
§
stipulates
that the remedies it
Division,
856-7.7,
Operating Procedure
exclusive,
2679;
§
are
and it
contains
quoted
http://www.vadoc.virgima.gov/
at
exceptions
coverage,
carves out
to its
(last
offenders/prison-life/ faqs.shtm
visited
§
exceptions
2680. One could not find the
2008).
obviously
sister is
jurisdictional
be
without
Thus,
approved
list of senders.
not on
jurisdictional
giving
the same time
status
cannot receive his
even if
provisions,
to the remainder of these
in
tries to send it to him. Because he is
she
result,
cluding the exhaustion rule. This
sentence,
serving
highly unlikely
a life
it is
however, would be inconsistent with the
that he will
to receive it
ever
able
way
Supreme
has treated
Court
it.
go
elsewhere or to
and retrieve
filing
analogous
rules
context of a
claiming employment
lawsuit
discrimina
II
agency.
tion
a federal
See Irwin v.
merits,
moving
Before
we must
Affairs,
Dept. Veterans
498 U.S.
93-
jurisdictional question:
resolve a
whether
(1990);
111 S.Ct.
635 prisoner personal these claim of a federal burden to assert whose is the Government’s In doing, it seeks to defeat a effects had been lost BOP. so exceptions if and when rejected reading them. thus have the narrower that this claim because of We adopted whether Parrott is court had v. jurisdiction to decide Ortloff (7th States, Cir.2003), or both of 335 F.3d 658 proceed entitled to with either and reaffirmed Dahler v. United his claims. Cir.2007). Ill surface, On the it would be hard to find ruling Supreme from the The FTCA waives the Govern Court more sovereign immunity only directly point. “under a last-ditch effort to ment’s private person ... a avoid dismissal of his claim on circumstances where applicable ground, suggests state this ... would be liable” under 1346(b)(1). 2680(c) § immu- might law. Each of hold does not tort 28 U.S.C. him requires therefore to nize the BOP officials his case because Parrott’s claims (1) by showing: did not “detain” the satisfy Indiana tort law issue. plaintiff by Noting exception applies only the defen duty owed to the (2) “detained,” dant; petitioner’s property breach of the when a the defendant’s appropriate points speak to meet out that Ali did not duty by failing (3) care; injury to the the issue of what counts as the “detention” standard of prisoner’s property purposes failure of a plaintiff caused the defendant’s Wells, triggering exception abrogation perform duty. Iglesias its See Ali, immunity. (Ind.App.Ct.1982) sovereign 441 N.E.2d See Griesel, (citing (assuming, deciding, Miller v. 261 Ind. 308 at 835 n. “without (Ind.1974)). prop- that the BOP officers ‘detained’ Ali’s N.E.2d 2680(c)’s
erty
satisfy
‘arising
and thus
A
...
respect
requirement,”
detention’
be-
Appeals
cause the “Court of
held that the
*7
begin
Parrott’s claim that BOP
We
with
satisfied,”
clause
and be-
‘detention’
was
negligently
proper
mishandled his
“expressly
Ali
declined to
cause
raise
governed by the Su
ty. This claim is
certiorari”).
issue on
in Ali v.
preme Court’s recent decision
—
Prisons,
—,
it,
there is a difference
Federal Bureau
U.S
As
sees
. —
of
(2008).
831,
and “loss”
property
ment,
agree with the Tenth Circuit
expressly
it
stated that “the for-
We
by sending prop
that confiscation followed
personal property
such as that
warding
erty
recipient
a known
is a “detention”
case
a ‘deten-
which occurred
this
exception
set forth in
purposes
for
property.”
or
goods
tion’ of
other
While
2680(c). Indeed,
§
a number of other cir
provided
explanation
the court
no
for its
negli
cuits have held that even where the
conclusion, we find it consistent with the
of law enforcement officers
gent actions
meaning of “detention.” The BOP
normal
complete
to the
destruction of the
lead
in-
property,
officials took
of Parrott’s
2680(c)
§
the suit.
applies to bar
property,
it,
erroneously
him
ventoried
told
Bein,
214 F.3d
See United States v.
permitted
not be
to have it
he would
(3d Cir.2000); Cheney
415-16
v. United
prison. They
to the new
then
shipped
(8th
States,
Cir.1992);
972 F.2d
248-49
belongings
forwarded his
to his sister
States,
v.
955 F.2d
Attallah
United
Islands,
unable to
Virgin
who now is
(1st Cir.1992);
n. 16
Schlaebitz v. U.S.
786
send them back to Parrott. At no time
(11th
Justice,
Dep’t
924 F.2d
lost;
property been
it was
has Parrott’s
Cir.1991)
curiam).
(per
Similarly, some
(that is, kept by
detained first
BOP
instead
circuits have held that officers’ actions of
officials)
shipped
custody
and then
“seizing” property
scope
falls within the
person.
of a different
See,
v.
exception.
e.g.,
Jeanmarie
States,
Cir.
United
F.3d
previously
court
had occa-
This
has
2001);
39 F.3d
Gasho
question what
sion to tackle the
constitutes
(9th Cir.1994).
1420, 1433
2680(c).
purposes
a “detention” for
however,
circuits,
Our sister
have looked
claim
therefore
is
problems
similar to Parrott’s. The
exception
liability
to tort
barred
Circuit,
2680(c)
example,
arising
Tenth
has held
found in
for claims
out of
2680(c)
merchandise,
any goods,
Ҥ
“the detention of
applies
prisoner alleges
where a
any
...
or other
other law
prison
that defendant
officials detained his
enforcement officer.”
personal property and mailed
outside
White,
prison.”
Hatten v.
B
(10th Cir.2002).
That
pre-
turn now to Parrott’s claim that
We
cisely
happened
what
to Parrott.
In Hat-
negligently
protect
staff
failed
ten,
case,
officials relied
Gregory’s
him from
assault. Parrott first
on a
policy that reduced the amount of
new
*8
must establish that
the defendants had
personal property that
inmates could re-
duty
such a
in the circumstances that
only
tain.
Id. at 1209-10. The
difference
parties agree
duty
arose. The
that a
was
between Hatten and Parrott’s case is that
case,
owed to Parrott
this
and that 18
policy
implement-
Hatten the “new”
was
§
accurately
duty.
4042
that
U.S.C.
states
prison,
ed at Hatten’s current
while
Muniz,
See
v.
374 U.S.
United States
brought
case the shift to
new institution
164-65,
found Under irrelevant, leged, or or both. Whether or general sovereign the FTCA’s waiver of accurate, they not those conclusions were immunity not apply does where the chal out turned to be immaterial. In denying lenged act involves “an judg element of motions, the district court relied “susceptible ment or choice” and is poli (inappropriately) admissibility on rules of cy Gaubert, analysis.” United States generalized privacy concerns about 315, 322, 325, 499 U.S. confidentiality, than rather on the ba- (1991). L.Ed.2d 335 long As valid discoverability. again, sis of Once more effect, separation order is in there is no targeted requested consideration of the operate discretion left to on that narrow materials would have preferable. been Calderon, question. Compare 123 F.3d at so much hinges Because of this case (holding 949-50 that BOP officials’decision separation whether formal order existed *10 separate whether to inmates is discretion Gregory, between Parrott and we find that ary), with Cohen United the district court abused its discretion in Indeed, indi- motions, signed a statement discovery of Parrott’s handling its regarding no concerns cating that he had prej- substantial Parrott suffered and that general population his return as a result. udice 2, safety. RE 99-9 at for his did not fear 2; 35; (requesting RE 99-10 at SA 37 SA IY Population “to remain housed General reasons, Afferm the dis- these For protect for staff to me as there is no need in favor of Unit- judgment trict court’s notify BOP agreeing at this time” property claim. We on Parrott’s ed States arise). Although Parrott staff if threats summary judgment order on VACATE sign not this state- suggests that he did claim and failure-to-protect Re- 36, ment, nothing in the record see BR. con- proceedings further mand the case for genuine for a factual provides the basis must Each side opinion. with this sistent summary and Parrott cannot resist dispute appeal. costs on bear its own allegations “mere judgment on the basis of Moreover, the records before or denials.” concurring in BAUER, Judge, Circuit court contain statements the district part. dissenting part and no order existed two officials that BOP major- of the Parrott and opinion separation join required I the excellent that claims; respectful- I ity as to the Gregory. opinion portion that
ly dissent in the any that I can see basis Without “separation” the issue that remands record, redacted insists that implications. its order and (which held was not properly the Court file held, Parrott has court As the district material) showed discovery available as for con- any basis to demonstrate failed majority opinion, while otherwise. negli- acted that cluding regula- for the BOPs sympathy professing when of such risks gent disregard disclosing them from prevent tions that popu- general prison him into released file, the concern says the contents of Spe- from the Parrott was released lation. by either accommodated could have been 2001, July at his Housing cial Unit counsel) (or appointed a court the court a minor alterca- year after request, over if material to see reviewing the redacted Gregory in instigated with tion that he had out lying. Leaving officials were the BOP RE 99-9 at injured. See which no one was requirement no that I knew of the fact 37; RE 107-3 35; at SA RE 99-10 SA attorney appoint an that the court should pointed has to no 83. Parrott SA face, the the issues we in a case that raises that the BOP or other reasons threats study was that such a court concluded trial that suspected re- reasonably have would record shows unnecessary; general population leasing him into enough of produced raised nothing Parrott hands of harm at the would result discovery. further question required Rather, as the district court Gregory. shows Nothing in the record here con- held, evidentiary record “[t]he separate any reason to aware of BOP was suggesting fact feature or tains no a minor There was Gregory. Parrott and potential problem knew of BOP staff two; in a altercation between Gregory on Parrott and between frequent, are such altercations population not be re- Parrott could 2001” such that virtually impossible unexpected RE general population. into the leased Separation or- they all led prevent. If 117 at SA 118. *11 ders, prisons occupy would half the
state. Judge Young
I think it right; had summary
defendants were entitled to judg-
ment on both facets of the case. MOLDENHAUER,
Denise N.
Plaintiff-Appellant,
TAZEWELL-PEKIN CONSOLIDATED CENTER,
COMMUNICATIONS et
al., Defendants-Appellees.
No. 07-1118. Appeals, States Court of
Seventh Circuit.
Argued Nov. 2007.
Decided 2008.