The opinion of the court was delivered by: NEALON
William J. Nealon, Chief Judge.
This case centers upon plaintiff's allegations that prison guards at U.S.P. -- Lewisburg, PA were negligent in allowing a fellow prisoner to assault him on November 29, 1984. By Orders dated February 20, 1987 and May 21, 1987, the court set forth the factual and procedural background of this case and entered judgment in favor of all defendants except the United States. See documents 42 and 57 of the record, respectively. In the May 21, 1987 Order, the court stated:
There remains in the case [only] plaintiff's FTCA claim against the United States (footnote omitted). Despite the urgings of the court in its previous orders, the parties have not yet addressed the FTCA claim. The court will direct the parties to submit briefs addressing the propriety of the FTCA claim . . . . The summary judgment motion of the United States will be held in abeyance pending the submission of this information.
See document 57 at 6-7. The court then ordered the parties to submit briefs concerning plaintiff's FTCA claim.
The United States submitted a Response on June 11, 1987. The government argues that plaintiff has failed to sustain his burden of establishing negligence. Plaintiff has not responded to the court's May 21, 1987 Order.
For the reasons set forth below, the court will grant judgment in favor of the United States.
Initially, the court notes that plaintiff's failure to respond to the May 21, 1987 Order constitutes grounds for dismissal on the basis of failure to prosecute. See Fed.R.Civ.P. 41(b). As noted above, the court in its May 21, 1987 Order pointed out that the parties had ignored the FTCA claim throughout the proceedings in this case and directed both the United States and plaintiff to address the merits of that claim. Moreover, in response to plaintiff's letter dated June 24, 1987, the Clerk of Court on June 30, 1987 sent copies of the May 21, 1987 Order and of the government's Response to plaintiff's new address. In his letter accompanying these documents, the Clerk of Court stated, "Please note, your response is due immediately." See document 63. Despite the court's directive, plaintiff has not pursued his FTCA claim.
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 ...