James Bultema v. United States of America

*The Honorable Karl S. Forester, Chief United States District Judge
for the Eastern District of Kentucky, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0056P (6th Cir.)
File Name: 04a0056p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JAMES BULTEMA,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
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No. 02-3490
Appeal from the United States District Court
for the Northern District of Ohio at Akron.
No. 01-00951—David D. Dowd, Jr., District Judge.
Argued: October 31, 2003
Decided and Filed: February 23, 2004
Before: MOORE and ROGERS, Circuit Judges;
FORESTER, Chief District Judge.*
_________________
COUNSEL
ARGUED: Mark L. Wakefield, LOWE, EKLUND,
WAKEFIELD & MULVIHILL, Cleveland, Ohio, for
2 Bultema v. United States No. 02-3490
Appellant. Marlon A. Primes, ASSISTANT UNITED
STATES ATTORNEY, Cleveland, Ohio, for Appellee.
ON BRIEF: Mark L. Wakefield, LOWE, EKLUND,
WAKEFIELD & MULVIHILL, Cleveland, Ohio, for
Appellant. Marlon A. Primes, ASSISTANT UNITED
STATES ATTORNEY, Cleveland, Ohio, for Appellee.
_________________
OPINION
_________________
ROGERS, Circuit Judge. While sleeping, James Bultema
fell from the top bunk of his federal prison bed and injured his
knee. Bultema had previously been given a form that
required him to receive a bottom bunk, but he did not deliver
this form to the prison official in charge of his unit before the
accident. Bultema sued the United States under the Federal
Tort Claims Act, alleging that several acts of prison
negligence caused his injury. The district court granted
summary judgment on behalf of the Government. The
Government contends that summary judgment was proper
because of the discretionary function exception to liability
under the Federal Tort Claims Act, and alternatively, because
comparative negligence on the part of Bultema bars recovery
under Ohio law. Because the discretionary function exception
does not apply to the limited question of whether the prison
was negligent in not giving Bultema the proper number of
forms and oral instructions once he received permission to get
a bottom bunk, and because there is a material question of
fact regarding Bultema’s comparative negligence, we reverse
the decision of the district court.
Facts
After years of selling insurance, Bultema was arrested and
charged with bank fraud, to which he subsequently pled
guilty. As part of his sentence he was imprisoned, for the first

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No. 02-3490 Bultema v. United States 3
time in his life, to serve a six month sentence at the federal
minimum security prison in Elkton, Ohio.
At Elkton, Bultema was initially assigned a top bunk within
Unit 1-A. The bunk beds at Elkton consist of metal frames
with foam-type mattresses and have two levels—a bottom
bunk that is approximately eighteen to twenty-four inches off
the ground and a top bunk that is considerably higher. The
bunks typically have a ladder on one end of the bed or on the
side of the bunk. The bunks lack rails or guards of any kind,
and inmates occasionally use “prison tools” to remove the
ladders and create makeshift rails. Although the prison staff
did not put rails on the beds for fear that they could be
removed and used as weapons or as a means of escape, the
staff did nothing to prevent the switching of the ladders.
After approximately three weeks in prison, Bultema was
given a medical examination by the prison’s physician’s
assistant, Danny Hall. During this examination, Hall issued
Bultema an “Idle, Convalescent and Change in Work
Classification Status” form, also known as a “bottom bunk
pass.” The bottom bunk pass states: “‚ no climbing „
Please allow bottom bunk (medical) while @ FCI Elkton.”
Apparently, although Bultema had no problem walking or
playing touch football games, these conditions were given to
Bultema because of his past medical history.
Bottom bunks are highly sought after at Elkton, and the
prison keeps a waiting list based on seniority to facilitate the
assignments of bottom bunks. However, if an inmate receives
a bottom bunk pass for medical reasons, he is immediately
assigned a bottom bunk, even if there are no vacant bottom
bunks, because the medical bottom bunk pass takes priority
over those who were assigned bottom bunks from the
seniority list.
Typically, the medical staff would complete the pass in
quadruplicate. One copy would be placed in his medical file,
one copy would go to records for entry into the prison
4 Bultema v. United States No. 02-3490
1The Government claims that Bultema was given instructions to give
a copy to Janel Fitzgerald, his unit counselor. The Government bases this
allegation on the fact that at the bottom of the pass it states “. . . Yellow
copy — D etail Officer Pink copy — Inma te . . .” According to the
Governm ent this should have alerted Bultema, as a very detail-oriented
ex-insurance agent, that he need ed to notify his unit counselor of his bunk
status change.
computer system, and the prisoner would be given two
copies: one to be given to unit management and the other to
be kept by the prisoner for his records. Once an inmate
received a bottom bunk pass, he would be told to alert the
prison unit management that he had received a bottom bunk
pass. Usually, the inmate would then quickly take the copy
to unit management, and a new bunk would be assigned.
Bultema claims that he only received one copy of the
bottom bunk pass from Hall, the pink copy, and that he put it
among his things for safekeeping.1 He alleges that because
no one gave him contrary instructions, he assumed that prison
officials would be notified of the change in his status without
any affirmative action on his part, and that he would be
changing bunks soon. Since Bultema did not tell unit
management about his bottom bunk pass, Janel Fitzgerald, his
Unit A-1 counselor, who was in charge of bunk changes, was
not notified before the accident that she needed to reassign
Bultema’s bunk.
In the meantime, Fitzgerald was made aware of some
difficulties Bultema was having with his bunk. After many
sleepless nights on his mattress, which had a downward tilt
toward the wall, Bultema asked Fitzgerald about the
possibility of receiving a new mattress. Fitzgerald informed
him that there were currently no spare mattresses, but that she
would try and get him one. Fitzgerald claims that Bultema
told her that he did not wish to switch top bunk beds to
correct the mattress problem because he did not want to lose
his bunkmate. Bultema denies this assertion.

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No. 02-3490 Bultema v. United States 5
At this point, Bultema, with the help of other inmates,
apparently took matters into his own hands, and on April 1,
1998, he switched the mattress on his bunk with that of a
mattress from an apparently empty bunk. That evening,
Bultema settled into his new bunk and went to sleep. About
2:30 a.m., Bultema awoke on the floor after having fallen off
of his bed. His knee hit the cement floor and was seriously
injured.
After his release from prison, Bultema filed a personal
injury claim against the Federal Bureau of Prisons under the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq.
He alleges that the United States was negligent in a number
of respects. The United States filed a motion for summary
judgment on the basis of the discretionary function exception
to the FTCA and Bultema’s comparative negligence. The
district court granted this motion. See Bultema v. United
States, 195 F. Supp. 2d 1001 (N.D. Ohio 2002). Bultema
filed a timely notice of appeal.
Discussion
This court reviews a lower court’s grant of summary
judgment de novo. Williams v. Gen. Motors Corp., 187 F.3d
553, 560 (6th Cir. 1999). The evidence should be viewed in
the light most favorable to the nonmoving party, and
summary judgment should only be granted where there is no
genuine issue of material fact. Id. In a properly supported
response to a motion for summary judgment, the nonmoving
party “must show that there is, indeed, a genuine issue for
trial.” Holloway v. Brush, 220 F.3d 767, 772 (6th Cir. 2000).
In considering a motion for summary judgment, “[t]he
judge’s function . . . is limited to determining whether
sufficient evidence has been presented to make the issue a
proper jury question, and not to judge the evidence and make
findings of fact.” 60 Ivy St. Corp. v. Alexander, 822 F.2d
1432, 1435-36 (6th Cir. 1987).
6 Bultema v. United States No. 02-3490
I. Discretionary Function Exception to Federal Tort Claims
Act Liability
Negligence in not directing Bultema to give a copy of his
pass to unit management, if proven, would amount to
negligence in following a nondiscretionary policy, and that
particular negligence claim is accordingly not protected by
the discretionary function exception to FTCA liability.
Therefore, the district court should not have granted summary
judgment to the Government. The Government relies on the
discretionary function exception, which precludes tort
liability on the part of the United States for
(a) Any claim based upon an act or omission of an
employee of the Government, exercising due care, in the
execution of a statute or regulation, whether or not such
statute or regulation be valid, or based upon the exercise
or performance or the failure to exercise or perform a
discretionary function or duty on the part of a federal
agency or an employee of the Government, whether or
not the discretion involved be abused.
28 U.S.C. § 2680(a).
There is a two-step test to determine whether the
discretionary function exception is applicable. See United
States v. Gaubert, 499 U.S. 315, 322-23 (1991); Reetz v.
United States, 224 F.3d 794, 795-96 (6th Cir. 2000). A court
first must make a “determination of whether the challenged
act or omission violated a mandatory regulation or policy that
allowed no judgment of choice.” Rosebush v. United States,
119 F.3d 438, 441 (6th Cir. 1997). The court only needs to
consider the second step if the action was discretionary under
the first step. Reetz, 224 F.3d at 796. Under the second step,
if the conduct was of the type that Congress intended for the
discretionary function exception to include, then the
exception is applicable. Id. The intent of Congress was “to
prevent judicial ‘second guessing’ of legislative and
administrative decisions grounded in social, economic, and

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No. 02-3490 Bultema v. United States 7
political policy.” Rosebush, 119 F.3d at 441 (internal
quotation omitted).
Examples of exercises of discretionary functions under this
analysis include a decision to institute a program of producing
and exporting fertilizer, Dalehite v. United States, 346 U.S.
15, 37-38 (1953); a decision to install a system of coastal
navigational aids, Indian Towing Co. v. United States, 350
U.S. 61, 69 (1955); a Federal Aviation Administration
(“FAA”) policy decision to spot check airplanes rather than
to inspect them in detail, United States v. S.A. Empresa de
Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797,
815-19 (1984); a U.S. Forest Service policy of not placing
protective railings around campground fire pits, Rosebush,
119 F.3d at 443-44; and a U.S. Forest Service policy of not
marking off-road-vehicle trails that are closed (but rather
marking only those that are open), Reetz, 224 F.3d at 797.
Where a particular government action is a deliberate or
necessary result of a discretionary general policy, such that a
tort suit based on the particular act or omission would amount
to a challenge to the protected across-the-board policy, then
the discretionary function exception applies as well. Thus,
the discretionary function exception protected the United
States against suits for the use of a high bagging temperature
fixed by a discretionary plan to manufacture fertilizer,
Dalehite, 346 U.S. at 38-41, for the failure of the FAA to
inspect a particular aircraft because of the FAA’s spot-check
policy, Varig Airlines, 467 U.S. at 819-20, and for a particular
failure of the Forest Service to mark an off-road-vehicle trail
as closed, Reetz, 224 F.3d at 795.
But where a particular government action is not a necessary
result of such a general policy, the act does not necessarily
amount to an exercise of a discretionary function merely
because carrying out the general policy provided the
opportunity for the negligent act. Thus the United States can
be liable for the Coast Guard’s negligent maintenance of a
navigational aid, even though the decision to employ such
8 Bultema v. United States No. 02-3490
aids was an exercise of a discretionary function. Indian
Towing, 350 U.S. at 69. Negligence in maintaining the aid is
not a necessary concomitant of the decision to employ such
aids. A fortiori, if a particular act violates a governmental
policy, the act cannot be protected under the discretionary
function exception by the fact that the violated policy itself
was an exercise of a discretionary function.
In order to undertake a proper discretionary function
analysis, then, we must first determine the exact conduct at
issue. Rosebush, 119 F.3d at 441. In the court below,
Bultema not only claimed that the failure to provide Bultema
with a copy of the pass along with directions on whom to give
it to, but also appeared to challenge the prison’s policy of not
having rails on upper bunks and the prison’s policy of relying
on prison inmates to notify unit management of the issuance
of bunk passes, rather than having the issuer of the pass notify
unit management directly. Bultema now properly concedes
that such claims are barred by the discretionary function
exception. The decision generally not to have bed rails, and
the decision to have inmates notify unit management of a
bunk pass, both involve the type of across-the-board policy-
making judgment that the discretionary function exception
was meant to leave to federal administrators, in this case
prison administrators. As the district court reasoned,
the policy-makers apparently decided that the quickest
and most efficient method for communicating a
medically-necessary bottom bunk assignment to the unit
officer was to utilize the inmate himself. . . . In fact, this
policy has intuitive appeal especially where, as here, it
deals with something that every inmate apparently wants,
i.e., a bottom bunk.
Bultema v. United States, 195 F. Supp. 2d 1001, 1008 (N.D.
Ohio 2002). The district court also reasoned properly that
with respect to [the] claim that the bunk beds should
have had ladders and/or guardrails, this, too, is a

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No. 02-3490 Bultema v. United States 9
discretionary call to be made by prison administrators.
There were valid safety and security concerns relating to
the beds at issue. Guard rails, and sometimes ladders, are
not included because of the danger that they can be
broken off and used as weapons or escape devices.
Id. In short, these policies are akin to the spot-check policy
in Varig Airlines and the no-campfire-rail policy in Rosebush.
As Bultema now concedes, the district court properly granted
summary judgment on these claims as barred by the
discretionary function exception.
Bultema’s remaining claim, however, is that the prison was
negligent in carrying out its bunk-pass-notification policy.
The allegedly negligent act or omission is not a necessary
concomitant of the prison’s notification policy, but rather is
allegedly in contravention with, or at least not required by,
that policy. Bultema claims that the prison was negligent in
not informing him of the process by which he would obtain
his bottom bunk after receiving a pass. In particular, the
prison allegedly failed to provide him with verbal
instructions along with two copies of the bottom bunk pass.
So limited, Bultema’s claim is not barred by the discretionary
function exception.
First, the discretionary function exception arguably does
not apply to Bultema’s limited claim because Elkton’s policy
for handling bottom bunk passes did not give the medical
staff or the unit management any discretion, but rather
dictated their actions. As the Supreme Court has explained,
the discretionary function exception will not apply when
a federal statute, regulation, or policy specifically
prescribes a course of action for an employee to follow.
In this event, the employee has no rightful option but to
adhere to the directive. And if the employee’s conduct
cannot appropriately be the product of judgment or
choice, then there is no discretion in the conduct for the
discretionary function exception to protect.
10 Bultema v. United States No. 02-3490
2Limiting Bultema’s claim to o ne for failure to direct him ad equately
in the processing of his bunk pass may o f course make it mo re difficult
for him to recover under O hio tort law. Bultema must demonstrate not
only that the alleged omission in failing to direct him actually occurred,
that it violated the standard of care, and that it was the cause in fact of his
injury, but also that his physical injury was a reasonably foreseeable result
of the limited allegation of negligence perm itted by the FT CA in this case.
See Strother v. Hutchinson, 423 N.E .2d 4 67, 4 69-7 1 (O hio 198 1); Bohme,
Inc. v. Sprint Int’l Communications Corp., 686 N.E.2d 300, 303-04 (Ohio
Ct. App. 199 6). Our holding that the discretionary function exception
does not apply has no bearing on whether or not Bultem a can meet these
requirements.
Berkovitz v. United States, 486 U.S. 531, 536 (1988). The
allegedly negligent behavior of the prison’s employees in
failing to instruct Bultema would not be discretionary under
this analysis. Therefore, the discretionary function exception
would be inapplicable as to the failure of the prison to notify
Bultema of his responsibility to tell unit management and the
failure to give him two copies of the pass.
Moreover, under the second step of a discretionary function
analysis, even if the prison employees retained some
discretion in carrying out the bunk-pass policy, that discretion
was not of the type that the discretionary function exception
was intended to protect. The alleged failure to direct Bultema
to give a copy of his pass to unit management was a particular
act or omission that was not required by the across-the-board
bunk-bed policy, and indeed it was arguably in violation of
that policy. It was therefore not protected by the discretionary
function exception. The failure is instead analogous to the
Coast Guard’s failure to maintain a particular navigational aid
in Indian Towing.2 The discretionary function exception
therefore did not warrant summary judgment for this limited
claim.
II. Comparative Fault
The United States argues that summary judgment should be
affirmed on the alternative ground of Bultema’s comparative

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No. 02-3490 Bultema v. United States 11
fault. Bultema has, however, presented enough evidence to
overcome a motion for summary judgment on the basis of
comparative negligence. Ohio’s comparative negligence law
prohibits plaintiffs from recovering if the plaintiff’s own
negligence outweighs that of the defendants. In other words,
“[i]n certain cases, summary judgment is appropriate if the
Plaintiff’s own negligence, as a matter of law, outweighs any
negligence of the Defendant.” Cervelli v. Thompson/Center
Arms, 183 F. Supp. 2d 1032, 1043 (S.D. Ohio 2002). If
reasonable minds can differ as to a plaintiff’s contributory
negligence, then summary judgment is inappropriate. See
Blevins v. Doe, 279 F. Supp. 2d 922, 931 (N.D. Ohio 2003).
The Government argues that reasonable minds could only
decide that Bultema’s injuries were caused by his own
negligence because he was a detail-oriented person, believed
that Fitzgerald was friendly and approachable, and failed to
notify her of his bottom bunk pass. Further the Government
contends that Bultema took it upon himself to switch
mattresses instead of requesting a bottom bunk because he did
not want to lose his bunkmate. It is true that Bultema did not
notify unit management of his bottom bunk pass, and this
failure was certainly a cause of his injury.
However, Bultema has presented some evidence, if viewed
in the light most favorable to him, that indicates that he was
not aware of the policy because of negligence on the part of
the prison. For example, Bultema claims that he was never
informed of the policies of the prison in regard to the bottom
bunk pass, and that he wanted to avoid becoming a
“troublemaker.” In addition, although the Government states
that he received verbal instructions as to what to do with his
bottom bunk pass, Hall, in his deposition, asserts that he has
“no recollection” of giving Bultema duplicate copies of the
bottom bunk pass. Bultema moreover states that he was only
given one copy of the bottom bunk pass, and that he received
no verbal instructions. Accordingly, Bultema has provided an
explanation that the fact-finder might believe for Bultema’s
failure to deliver a copy of his bottom bunk pass to unit
12 Bultema v. United States No. 02-3490
management. Because there is contradictory evidence as to
Bultema’s negligence and because it is the fact-finder’s duty
at trial to weigh the evidence and assess the credibility of the
witnesses, it was not appropriate to grant summary judgment
solely on the basis of comparative negligence in this case.
Conclusion
The judgment of the district court is REVERSED and the
case is remanded for further consideration.

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