party opposing a motion for summary judgment cannot rest on the allegations in his complaint. Instead, that party must present evidentiary affidavits or risk having the undisputed statements contained in the movant's affidavits taken as true. See Fed.R.Civ.P. 56(e); see also Sierra v. Lehigh County Pennsylvania, 617 F. Supp. 427 (E.D. Pa. 1985). As no genuine issue of material fact here exists, summary judgment will be granted in favor of the United States.
The FTCA renders the United States answerable in damages for the simple negligence of its employees in failing to protect federal prisoners. United States v. Muniz, 374 U.S. 150, 83 S. Ct. 1850, 10 L. Ed. 2d 805 (1963); Brown v. United States, 486 F.2d 284, 288 (8th Cir. 1973). Under the FTCA, the law of the place where the alleged act or omission occurred is to be applied. 28 U.S.C.A. § 1346(b); Smith v. United States, 437 F. Supp. 1004, 1005 (E.D. Pa. 1977). Nevertheless, 18 U.S.C.A. § 4042 governs the government's duty of care in cases involving injury to federal prisoners. Hossic v. United States, 682 F. Supp. 23 (M.D. Pa. 1987).
It is unreasonable to expect that the authorities can make a penitentiary a risk-free institution. Walker v. United States, 437 F. Supp. 1081, 1082 (D. Or. 1977). Thus, section 4042 requires ordinary diligence to keep prisoners safe from harm. Hossic, supra at 25. More, specifically, "the duty imposed upon a jailer vis a vis his prisoner is 'to exercise reasonable care and diligence to protect the prisoner from danger, known to or which might reasonably be apprehended by him.'" Id. at 25 (quoting Muniz v. United States, 280 F. Supp. 542, 547 (S.D.N.Y. 1968) (emphasis added).
Viewing the allegations in the light most favorable to plaintiff, as is required, the following fact situation is presented. On November 29, 1984, plaintiff informed defendant London that his life was in danger and supposedly requested that London not place him in a holding cell with other inmates. Subsequently, another inmate who had threatened plaintiff in the past allegedly walked by London, entered the holding cell in which plaintiff was located, and proceeded to assault plaintiff. According to plaintiff's Complaint, two or three minutes elapsed between the time London left the holding cell and the assailant entered the cell. Furthermore, plaintiff admits in his Complaint that prison officials quickly intervened and broke up the assault shortly after it began. Plaintiff does not claim that London was present when the assault took place, was contemporaneously aware of the assault, or witnessed the other inmate enter the holding cell. See document 57 of the record at 2-3 n.3.
Plaintiff also alleges that he "warned" defendant Swinehart on the day before the alleged assault occurred. Aside from this warning, plaintiff alleged no further connection between defendant Swinehart and the alleged assault. More important, plaintiff failed to explain any details of the warning given to Swinehart. For example, plaintiff did not alleged that he informed Swinehart who the assailant would be, why he was concerned for his safety, when the attack was to occur, or how the assailant would gain access to the plaintiff.
In response to plaintiff's allegations, the defendants filed unsworn declarations that complied with the requirements of 28 U.S.C. § 1746. Both London and Swinehart stated that they were not aware of any need for additional protection for plaintiff, that plaintiff never expressed his safety concerns to them, and that they first learned of the alleged assault through this litigation. See London declaration at para. 6-9 and Swinehart declaration at para. 4-8. Again, plaintiff's response to these declarations consists of merely generalities that do not specifically contradict the defendants' statements. See document 38 of the record.
Accepting all of plaintiff's allegations as true, they are insufficient to establish that the defendants failed to exercise ordinary care. Basically, plaintiff alleges that he expressed concern in the most general of terms that he might be assaulted and that he was in fact subsequently assaulted. Despite the repeated urgings of the court, plaintiff has failed to provide the court with specific facts regarding the alleged warnings and assault. Plaintiff has never alleged that he warned the defendants specifically about the inmate who allegedly assaulted him or about any particular past incidents or threats. Plaintiff has never alleged that the defendants knew of any potential danger that the alleged assailant posed to plaintiff or knew that the alleged assailant was in the immediate area of the holding cell on the day of the assault. Finally, the plaintiff has never alleged that he expressed any specific concerns for his safety in relation to any particular inmate or the procedures surrounding his transfer. In fact, plaintiff has failed to date to even respond to the defendants' request for summary judgment on the FTCA claim, although such response was due on June 26, 1987.
On the other hand, the defendants have alleged that they were not aware of any need for additional protection for plaintiff. Thus, this is not a case in which the government failed to provide protection when it had already decided protection was necessary. Cf. Cohen v. United States, 252 F. Supp. 679 (N.D. Ga. 1966), rev'd on other grounds, 389 F.2d 689 (5th Cir. 1967). Plaintiff himself acknowledges in his Complaint that prison officials quickly stepped in to break up the alleged assault. The allegations taken as a whole do not evidence a breach of the duty of ordinary care.
"The Government is not an insurer of the safety of a prisoner." Jones v. United States, 534 F.2d 53, 54 (5th Cir. 1976), cert. denied, 429 U.S. 978, 97 S. Ct. 487, 50 L. Ed. 2d 586 (1976). Instead, it must exercise only ordinary diligence to keep prisoners safe from harm. 18 U.S.C. 4042; Hossic, supra. Plaintiff has failed to establish any genuine issue of material fact regarding a breach of duty on the part of the defendant, and the defendant is entitled to judgment as a matter of law.
An appropriate Order will enter.
NOW, this 24th day of August, 1987, in accordance with the reasoning set forth in the accompanying Memorandum, IT IS HEREBY ORDERED THAT:
(1) Summary judgment is granted in favor of defendant United States.
(2) The Complaint is dismissed.