Joshua Rich v. United States of America

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7204
JOSHUA RICH,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Gina M. Groh,
District Judge. (3:13-cv-00137-GMG-RWT)
Argued: October 27, 2015 Decided: December 29, 2015
Before KEENAN, WYNN, and DIAZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published
opinion. Judge Keenan wrote the opinion, in which Judge Wynn
and Judge Diaz joined.
ARGUED: Jay Thornton McCamic, MCCAMIC, SACCO & MCCOID, PLLC,
Wheeling, West Virginia, for Appellant. Alan McGonigal, OFFICE
OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for
Appellee. ON BRIEF: William J. Ihlenfeld, II, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling,
West Virginia, for Appellee.

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BARBARA MILANO KEENAN, Circuit Judge:
While serving a fifty-seven year sentence at the United
States Penitentiary in Bruceton Mills, West Virginia (USP
Hazelton), Joshua Rich was attacked in a recreation area, or
“cage,” by several other inmates. He was severely beaten and
stabbed several times. A nine-inch-long homemade knife was
recovered at the scene. Rich suffered serious injuries,
including liver laceration, which required numerous invasive
surgeries.
Rich sued the United States under the Federal Tort Claims
Act (FTCA), 28 U.S.C. § 1346(b), alleging that prison officials
had been negligent in failing to protect him from the attack.
The district court granted the government’s motion to dismiss
for lack of subject matter jurisdiction, concluding that the
discretionary function exception to the FTCA applied both to the
prison officials’ decision not to separate Rich from his
attackers, as well as to the manner in which the officials
searched other inmates prior to placing them with Rich in the
recreation cage.
Upon our review, we affirm the district court’s holding
that the prison officials’ discretionary decision not to
separate Rich from his attackers is subject to the discretionary
function exception of the FTCA, depriving us of jurisdiction
over that claim. However, with regard to Rich’s claim that

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prison officials did not perform the searches properly, we
remand for additional discovery because jurisdictional facts are
intertwined with the merits of that claim.
I.
In 2008, the United States District Court for the District
of Utah sentenced Rich to fifty-seven years’ imprisonment for
armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d),
and for using and carrying a firearm in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c). Rich entered the
custody of the Bureau of Prisons (BOP) in September 2008.1
According to Rich, he immediately was targeted in prison by
a white supremacist group, the “Aryan Brotherhood,” for his
refusal to follow that group’s rules and to participate in the
group’s criminal schemes. Although transferred frequently to
different penitentiaries, Rich contends that he was targeted
continually by the Aryan Brotherhood and required separation
from the group.2
1 Unless otherwise indicated, the facts in Section I are
undisputed.
2 The government disputes Rich’s account of his time at the
various penitentiaries and the reasons for his separation from
other inmates, arguing that Rich’s prior Special Housing Unit
placements were unrelated to the Aryan Brotherhood. As we
explain in Section II.B., this dispute of fact is immaterial to
our conclusions.

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In February 2011, Rich was transferred to USP Hazelton and,
on August 5, 2011, five inmates attacked him in a recreation
cage within the Special Housing Unit (SHU). The attackers beat
Rich and stabbed him repeatedly. A knife measuring about nine
inches in length was recovered from the scene.3 Rich suffered
serious injuries and underwent numerous surgeries, including a
bronchoscopy for respiratory failure, a laparotomy to repair a
laceration to his liver, and open-heart surgery to repair the
right atrium of his heart.
Rich sued the United States under the FTCA, alleging one
count of negligence asserting that the prison officials had
failed to protect him from harm. Rich alleged that the
officials should have kept him separated from his attackers, and
that the officials failed to screen, “wand,” or search the
inmates properly prior to placing them in the recreation cage.
The government moved to dismiss Rich’s complaint on the
basis that the discretionary function exception to the FTCA,
which limits the government’s waiver of sovereign immunity for
certain kinds of discretionary conduct, applied both to the
3 The government does not dispute the size of the knife
recovered from the scene of the attack, though its exact size is
nowhere in the record. Although the government refers to the
investigative report for Rich’s attack as in the record on page
169 of the joint appendix, we are unable to locate page 169.
Nor is the investigative report included in any other part of
the record.

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prison officials’ decision whether to separate Rich from his
attackers and to the manner in which the prison officials
searched the attacking inmates. To support its position, the
government included several exhibits with its motion to dismiss.
These attachments included portions of Rich’s prison file and
declarations from the prison officials, who stated that they
performed patdowns and searches properly on all inmates before
the attack. The attachments also included various “Post Orders”
in effect at USP Hazelton on August 5, 2011.4
The Post Orders relating to the SHU require that an
inmate’s hands be restrained behind his body whenever leaving
his cell for recreation. Additionally, the Post Orders state
that “inmates will be pat searched and screened with the hand-
held metal detector before entering and upon exiting the
recreation cages.” The Post Orders do not otherwise describe
how a patdown should be performed. However, the BOP “Program
Statement” applicable to all prisons, including USP Hazelton,
provides that “[a]ny pat search shall be conducted as outlined
4 “Post Orders” are specific to each institution, based on
BOP policy, and state each post’s duty hours as well as any
special instructions unique to that post. See U.S. Dep’t of
Justice Program Statement No. 5500.14, section 103 (2012),
http://www.bop.gov/policy/progstat/5500_014.pdf (describing post
orders).

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in the Correctional Services Manual.”5 Moreover, according to
the Post Orders, when an inmate has a prior history of weapons
possession, prison officials must perform a “visual search” of
the inmate, including a search of the inmate’s body cavities,
prior to his entry into a recreation cage.
After reviewing these attachments, the district court
agreed with the government that the discretionary function
exception applied to the prison officials’ decisions regarding
inmate separation and the manner in which the prison officials
performed the patdowns and searches.6 The court found that the
Post Orders “do not mandate a specific course of conduct” for
the officers to follow in performing the required searches. The
court also concluded that the discretion afforded prison
officials is consistent with the public policy of granting
prison officials deference in implementing and executing their
security measures.
The district court further concluded that Rich was not
entitled to any discovery regarding whether additional
directives mandated a particular method for performing patdowns
5 The Correctional Services Manual is not a part of the
record before this Court.
6 The district court noted that Rich only objected to the
report and recommendation of the magistrate judge with respect
to whether the prison officials performed their searches
properly. Accordingly, the court simply adopted the magistrate
judge’s conclusion regarding separation.

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and searches. Accordingly, the district court granted the
government’s motion to dismiss for lack of subject matter
jurisdiction. This appeal followed.
II.
On appeal, Rich challenges the district court’s conclusion
that the discretionary function exception applies to the prison
officials’ conduct. He argues that the officials had a non-
discretionary duty to maintain and monitor both his prison files
and the files of other inmates. Rich contends that if the
officials had taken these security measures, they would have
known about Rich’s history with the Aryan Brotherhood and the
need to keep him separated from the group’s members. Rich also
argues that the Post Orders and other policies imposed mandatory
directives that the prison officials search and patdown inmates
prior to placing them in the recreation cage, thereby precluding
application of the discretionary function exception. Rich
contends that, at a minimum, he should have been allowed the
opportunity for discovery before the district court determined
that the discretionary function exception applied.
In response, the government contends that the officials’
decision not to separate Rich from his attackers, as well as the
manner in which the searches were performed, are matters within
the discretionary function exception. The government asserts

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that there are no directives governing the separation of
prisoners or the proper procedure for performing patdowns and
searches. The government argues that, therefore, the prison
officials’ discretion in these areas implicates public policy
considerations that justify application of the discretionary
function exception. The government further asserts that the
district court did not abuse its discretion when it refused to
grant Rich discovery, because no additional information could be
uncovered that would establish the district court’s
jurisdiction.
A.
We review a district court’s decision dismissing a case for
lack of subject matter jurisdiction de novo. Taylor v. Kellogg
Brown & Root Servs., Inc., 658 F.3d 402, 408 (4th Cir. 2011).
We review a denial of jurisdictional discovery for abuse of
discretion. Durden v. United States, 736 F.3d 296, 307 (4th
Cir. 2013).
Although the United States typically is immune from suit,
the FTCA provides a waiver of this sovereign immunity when the
federal government “would be liable to the claimant in
accordance with the law of the place where the act or omission
occurred” for certain torts, such as negligence, committed by
federal employees acting within the scope of their employment.
28 U.S.C. § 1346(b)(1). However, under the FTCA, the

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discretionary function exception limits that waiver of immunity
in situations involving “the exercise or performance or the
failure to exercise or perform a discretionary function or duty
. . . whether or not the discretion involved be abused.” 28
U.S.C. § 2680(a).
To determine whether conduct qualifies for the
discretionary function exception, courts apply a two-pronged
test. First, a court considers whether the challenged
governmental conduct involves an element of judgment or choice.
United States v. Gaubert, 499 U.S. 315, 322 (1991). When a
statute, regulation, or policy prescribes a specific course of
action, there is no discretion and the exception does not apply.
Id. Second, if the challenged conduct does involve an element
of judgment, the court must then determine whether the judgment
was one that the exception was designed to protect, namely, a
judgment based on considerations of public policy. Id. at 322-
23.
A defendant’s assertion that the discretionary function
exception applies is an assertion that the court lacks subject
matter jurisdiction. See Indem. Ins. Co. of N. Am. v. United
States, 569 F.3d 175, 180 (4th Cir. 2009). In challenging
subject matter jurisdiction, a defendant may raise a facial
challenge that, even if all the alleged facts are true, the

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complaint nonetheless fails to establish jurisdiction. See
Durden, 736 F.3d at 300.
Alternatively, a defendant may dispute the allegations in a
complaint that could establish subject matter jurisdiction.
Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). In
that situation, the court may go beyond the allegations in the
complaint and “in an evidentiary hearing determine if there are
facts to support the jurisdictional allegations.” Id. Under
such circumstances, the complaint’s allegations ordinarily are
not afforded a presumption of truthfulness. Id. If, however,
the jurisdictional facts are intertwined with the facts central
to the merits of the complaint, “a presumption of truthfulness
should attach to the plaintiff’s allegations.” Id. at 193.
And, most relevant here, the court “should resolve the relevant
factual disputes only after appropriate discovery.” In re KBR,
Inc., Burn Pit Litig., 744 F.3d 326, 334 (4th Cir. 2014)
(citation omitted).
B.
We first address whether the discretionary function
exception applies to the prison officials’ placement of Rich in
the recreation cage with his attackers, and whether Rich was
entitled to discovery on this claim. To do so, we consider
whether the challenged governmental conduct involves an element
of judgment or choice and, if so, whether that judgment was

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based on considerations of public policy. Gaubert, 499 U.S. at
322–23.
The BOP is required to provide for the “protection,”
“safekeeping,” and “care” of “all persons charged with or
convicted of offenses against the United States.” 18 U.S.C. §
4042(a)(2), (3). Under the statute’s broad directives, the BOP
retains discretion regarding the implementation of those
mandates. Cohen v. United States, 151 F.3d 1338, 1342 (11th
Cir. 1998). This discretion is evident in the regulations
regarding the proper handling and review of the Central Inmate
Monitoring (CIM) files.
The CIM system is the mechanism by which the Bureau of
Prisons monitors and controls the transfer, temporary release,
and community activities of certain inmates who present special
needs for management, including the need to separate certain
inmates from others based on their past behavior. See 28 C.F.R.
§ 524.70–76. Although 28 C.F.R. § 524.72(d) provides that
inmates “may require separation from a specific disruptive group
[such as a prison gang]” (emphasis added), nothing in this
regulation requires that any specific action be taken by the
various prison officials. Instead, prison officials must
consider several factors and exercise independent judgment in
determining whether inmates may require separation. See 28
C.F.R. § 524.72(f). Given this general language in the

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regulations, we conclude that prison officials exercise broad
discretion in this regard and, thus, that the first prong of the
discretionary function exception is satisfied.
We turn to consider the second element of the discretionary
function exception, namely, whether considerations of public
policy are implicated in the discretion given to prison
officials in their decisions about the separation of prisoners.
See Gaubert, 499 U.S. at 322–23. Although this is an issue of
first impression in this Court, other federal appellate courts
have held that prisoner placement and the handling of threats
posed by inmates against one another are “part and parcel of the
inherently policy-laden endeavor of maintaining order and
preserving security within our nation’s prisons.” Cohen, 151
F.3d at 1344; see also Alfrey v. United States, 276 F.3d 557,
563-65 (9th Cir. 2002); Calderon v. United States, 123 F.3d 947,
951 (7th Cir. 1997). Factors such as available resources,
proper classification of inmates, and appropriate security
levels are “inherently grounded in social, political, and
economic policy.” Dykstra v. U.S. Bureau of Prisons, 140 F.3d
791, 796 (8th Cir. 1998); cf. Bell v. Wolfish, 441 U.S. 520,
547-48 (1979) (“Prison administrators . . . should be accorded
wide-ranging deference in the adoption and execution of policies
and practices that in their judgment are needed to preserve

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internal order and discipline and to maintain institutional
security.”).
We agree with the reasoning of our sister circuits. Prison
officials are afforded discretion in determining where to place
inmates and whether to keep certain individuals or gangs
separated from one another. Because these decisions invoke
several policy considerations for prison administrators, they
are precisely the kind of determinations that the discretionary
function exception is intended to protect. We therefore hold
that the discretionary function exception shields the prison
officials from liability with respect to whether they should
have separated Rich from his attackers.
We also conclude that Rich is not entitled to discovery on
this issue. Even accepting all of Rich’s allegations regarding
his history with the Aryan Brotherhood as true, the
discretionary function exception still would apply to the
decisions of the officials regarding prisoner placement,
ultimately depriving us of jurisdiction. And because no facts
that Rich could uncover in discovery would establish
jurisdiction, we hold that the district court did not abuse its
discretion in refusing Rich discovery regarding the officials’
decision to not separate Rich from his attackers. See Durden,
736 F.3d at 307-08.

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C.
We reach a different conclusion regarding the availability
of discovery with respect to Rich’s allegations that the prison
officials did not search his attackers properly before placing
them in the recreation cage. Unlike the allegations underlying
Rich’s claim regarding the prison officials’ duty to separate
Rich from his attackers, which failed on their face to establish
subject matter jurisdiction, disputed jurisdictional facts are
intertwined with the merits of Rich’s claim regarding the
execution of the patdowns. See Kerns, 585 F.3d at 193.
For example, in support of the government’s motion to
dismiss, the prison officials provided declarations that they
did in fact perform patdowns of the inmates involved on the date
of the incident. Those declarations stand in direct contrast to
Rich’s allegation that the officials “failed to properly screen,
‘wand,’ or search inmates entering the SHU and/or SHU recreation
cages.” That allegation is relevant not only to whether the
discretionary function exception applies and, thus, whether we
have subject matter jurisdiction over this claim, but also to
the merits of Rich’s negligence allegation.
We find no merit in the government’s argument that Rich did
not allege that the prison officials completely failed to
patdown or “wand” his attackers, but alleged only that these
searches were not done properly. Rich’s complaint can be read

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fairly to allege both that the officials did not perform the
searches properly, and that the officials failed to perform the
searches in any manner. Rich maintained this position
throughout the litigation. A period of discovery would afford
Rich the opportunity to challenge these officials’ assertions
concerning their performance of the searches.
Even if we accept the prison officials’ uncontested
declarations, the fact that they performed patdowns does not
resolve the question whether the officials performed those
patdowns properly. The BOP’s Program Statement provides that
“[a]ny pat search shall be conducted as outlined in the
Correctional Services Manual,” suggesting the existence of more
specific directives. Rich should be permitted the opportunity
for discovery of that Correctional Services Manual to determine
whether more specific directives exist concerning the
performance of patdowns.7
7 We do not decide whether, even in the absence of more
specific mandates, the manner in which a patdown is performed
qualifies for the discretionary function exception. We note,
however, that the government offers no limiting principle to its
rationale as to when the exception should apply. There is
always some level of discretion regarding the performance of
even the most specific of mandates, which under the government’s
argument would mean that the discretionary function exception
would always apply. Moreover, the government could only suggest
reasons of “security” generally as the policy consideration
involved in the manner of performing patdowns.

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Additionally, when inmates have a prior history of weapons
possession, the Post Orders require a “visual search” of those
inmates, involving a search of the body cavity, prior to their
entry into a recreation cage. Discovery could uncover whether
any of Rich’s attackers had a history of weapons possession that
would have triggered this visual search requirement. Such an
additional mandate would affect any analysis concerning whether
the prison officials properly performed searches as required.8
Finally, we observe that Rich may be able to establish
jurisdiction even if, under typical circumstances, the
discretionary function exception applies to the manner in which
prison officials perform patdowns. The Second Circuit has
acknowledged that discretionary conduct cannot be grounded in a
policy decision when that conduct is marked by individual
carelessness or laziness. See Coulthurst v. United States, 214
F.3d 106 (2d Cir. 2000) (concluding that the discretionary
function exception would not apply to a prison official’s
inspection of faulty weight equipment that caused plaintiff’s
injuries if that inspection was performed in a “carelessly
8 At oral argument, the government contended that providing
certain types of information to inmates, such as camera
placements and security methods employed by prison officials,
would present serious safety risks by allowing inmates to
uncover any potential holes in prison safety procedures. We are
confident that the district court can implement appropriate
measures during the course of discovery to prevent any
unnecessary disclosure of critical security information.

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inattentive” manner). The fact that a nine-inch-long knife was
recovered at the scene of Rich’s attack, in spite of the prison
officials’ averments that each performed the required searches
properly, at least suggests the possibility of careless
inattention. In that case, the prison officials would not be
shielded by the discretionary function exception because no
policy considerations would be implicated.
Discovery provides a procedural safeguard when a
jurisdictional inquiry would require the consideration of
merits-based evidence. See Kerns, 585 F.3d at 193. This
safeguard does not disappear simply because the plaintiff is a
prisoner. Of course, courts frequently apply the discretionary
function exception to prison officials’ efforts to ensure the
safety of prisoners under difficult circumstances, e.g., Cohen,
151 F.3d at 1344; Alfrey, 276 F.3d at 564-67; Calderon, 123 F.3d
at 949-51, and that may be the ultimate outcome here as well.
Nevertheless, we conclude that Rich is entitled to the safeguard
of discovery before his complaint is dismissed.
Because the jurisdictional facts regarding the propriety of
the prison officials’ patdowns are intertwined with the merits
of Rich’s allegations, the district court “should resolve the
relevant factual disputes only after appropriate discovery.” In
re KBR, Inc., 744 F.3d at 334 (citation omitted). Accordingly,
we vacate in part, and remand, to allow Rich to proceed to

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discovery on the issue whether and how the prison officials
performed the patdowns and searches, and whether more specific
directives existed regarding the manner of performing the
patdowns and searches.
III.
For these reasons, we affirm the district court’s decision
that the discretionary function exception applies to the prison
officials’ decision not to separate Rich from his attackers.
However, we vacate the district court’s judgment with respect to
the issue of the prison officials’ performance of the patdowns
and searches, and remand for additional proceedings consistent
with this opinion.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

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