The opinion of the court was delivered by: Judge Conner
Presently before the court is a motion to dismiss (Doc. 15) plaintiff Lester Butcher's ("Butcher") Federal Tort Claim Act*fn1 ("FTCA") complaint pursuant to Fed. R. Civ. P. 12(b)(6), filed on behalf of the United States. For the reasons discussed below, defendant's motion will be granted and the claims against the United States Department of Justice and the Federal Bureau of Prisons will be dismissed for lack of jurisdiction.
Plaintiff filed an FTCA complaint on November 17, 2006, seeking monetary relief based on the negligent procedures employed during the course of his disciplinary proceeding. He alleges that on October 14, 2005, he received an incident report charging him with "Interfering with staff in performance of duties (high severity) and Most like Assaulting any person (minor assault)." (Doc. 2, p. 5). The incident was described by the reporting officer as follows:
On 10-13-05 at approximately 2:00 p.m., after completing a search of cell 224L A-1 unit, I walked out of the cell carrying confiscated items. Inmate Lester Butcher, # 03969-078, approached me and asked what I had. When I told him I was confiscating his head phones he said "no, those are mine" he then grabbed my hand and took the head phones from me. I then ordered him to return the head phones to me. He complied. I then notified the Operations Lieutenants. Inmate Butcher was medically assessed and no injuries were noted. I was medically assessed and had no injuries.
The disciplinary hearing was held on October 27, 2005. (Doc. 2, p. 7). After being advised of his rights, and indicating that he understood them, Butcher made the following statement:
I never grabbed her hand. I was at the microwave while she was searching my cell. When she was finished, she came over to where I was and asked if I liked tattoos. I thought that maybe she found something to do tattoos with or something like that. I told her I don't do tattoos and asked her if she found something in my room.
She said she took some headphones that were altered. I told her that my headphones were not altered, at this point she opened the bag to show me the headphones. I reached into the bag to show her the headphones were not altered and then I put them back in the bag and told her I wanted a confiscation form. I later asked her again for a confiscation form, as I have lost a lot of property in the past this same way. I think that she just did this because she was mad because I asked her for a confiscation form. At no time did I touch her. (Id.) Butcher's staff representative noted no discrepancies in the disciplinary process, and reported that he met with Butcher in advance of the hearing to discuss the case and, as requested by Butcher, viewed the surveillance video tape of the incident. (Id.) When questioned about the content of the video tape, the staff representative indicated that "he could not tell if Butcher had actually grabbed the officer's hand, as the angle of the camera only showed the officer's back and blocked the view of the actual incident as written." (Doc. 2, p. 8). Two inmate witnesses testified that they witnessed the disagreement over the headphones and one of the witnesses described Butcher's temperament as "heated." (Id.) However, both inmates testified that they did not see him take headphones from the officer or grab the officer's hand. (Id.) Butcher requested that the reporting officer be present. The DHO believed that she was an adverse witness, and felt that her account of the incident was adequately summarized in the incident report. Hence, he did not call her to testify. (Id.)
The DHO, in weighing the above evidence, concluded as follows:
After the consideration of all evidence, the DHO has drawn the conclusion [from the] greater weight of the evidence; specifically, the eyewitness account of the reporting staff member, that Butcher grabbed her hand, Aponte's [inmate witness] statement that Butcher was heated during the incident, coupled with the inmate's statement that he did take the headphones without the officer's consent, [that] the prohibited act of Interfering with staff in the performance of their duties (most like assaulting any person), Code 298, was committed. (Id.) Butcher was sanctioned with thirty days of disciplinary segregation, twenty-seven days disallowance of good conduct time, and ninety days loss of telephone privileges based on the following:
Interfering with staff in the performance of their duties (most like assault), hinders staff's ability to effectively and efficiently perform duties commensurate with their assigned duties. This type of behavior is considered disruptive to the security and orderly running of the institution which requires punishment. The sanctions imposed by the DHO were taken to let the inmate know that he, and he alone, will be held responsible for his behavior.
It was noted that Butcher has a past disciplinary record of assaulting staff and fighting with other inmates. The sanctions of disciplinary segregation and loss of good conduct time were imposed to demonstrate the seriousness of the prohibited act and as punishment for his conduct. The loss of telephone privileges was imposed to deter further behavior. It is hoped that these sanctions prompt Butcher to modify his interactions with staff in the future. (Id.)
On appeal, it was concluded that Butcher's due process rights were upheld during the disciplinary process, that the greater weight of the evidence supported the DHO's decision, and that the sanctions were commensurate to the severity level ...