United States District Court, N.D. Alabama, Southern Division
SHARON LOVELACE BLACKBURN, District Judge.
This case is presently pending before the court on the Magistrate Judge's Report and Recommendation, (doc. 26),  and plaintiff's Motion to Amend the Complaint and File Under the Federal Tort Claim Act (FTCA), (doc. 28).
I. REVIEW OF THE REPORT AND RECOMMENDATION
The district court reviews de novo those parts of a Report and Recommendation to which a party objects. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3)("The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to."). The court may review the other parts of the Report and Recommendation for plain error or manifest injustice. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983)(citing Nettles v. Wainwright, 677 F.2d 404, 410 (11th Cir. 1982)). Neither plaintiff nor defendants filed any objections to the Magistrate Judge's Report and Recommendation. "The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3).
Plaintiff, Mario Zuniga, has filed a Bivens action against defendants, Lieutenant Smith and Corrections Officer St. John. The Report and Recommendation sets forth the following facts to which the parties have not objected:
At all times relevant to this action, the plaintiff was incarcerated in the Special Management Unit ("SMU") at FCI Talladega. The SMU houses extremely dangerous prisoners, and staff should never place inmates who are known enemies to one another in the same place. (Doc. 2 at 4). When the plaintiff first arrived at the SMU, there was a "separation" in place on him, and he informed Captain David, Warden Rathman, SIS Preston and SIS Mela that he had come from USP Coleman. [( Id. at 5.)] According to the plaintiff, FCC Coleman is a known "drop-out prison, where inmates who are former gang members who have problems with active gang members are sent for their protection. [( Id. )] The plaintiff informed the staff of his status as a gang "drop-out, " and stated that he had concerns for his safety, but he was denied official drop-out status and the protections that status would provide. [( Id. at 5-6.)] He filed numerous grievances and wrote many letters about this issue.
On June 25, 2010, Lieutenant Smith and Corrections Officer St. John arrived at the plaintiff's cell to take him to the law library, as he had requested. [( Id. at 4.)] The plaintiff was handcuffed and left alone in the library until the officers brought two other handcuffed inmates there. [( Id. )] The plaintiff did not sign anything or verbally agree to these inmates entering the library, but was "forced... by virtue of complying with staff's direct order to submit to being cuffed to allow the two inmates entry into the law library." [( Id. at 5.)] Although the two inmates were also handcuffed when they were brought into the library, once the door was closed, both were able to slip out of their handcuffs, then viciously attacked the plaintiff, repeatedly stabbing and beating him, resulting in severe injuries. [( Id. at 4.)]
According to the plaintiff, the two inmates were known to be enemies of the gang of which plaintiff used to be a member. [( Id. )] The staff at FCI Talladega knew that plaintiff should not have been put in the library with the two inmates because of the "separation" that had been in place on him when he first arrived at the SMU. [( Id. at 5.)] Further, the staff knew that plaintiff should never be in a room with other gang members as that information was posted on a large security board in the unit officers' station. [( Id. at 4.)]
(Doc. 26 at 3-5 [footnotes omitted].)
After careful consideration of the record in this case, including but not limited to the Magistrate Judge's Report and Recommendation, the court hereby ADOPTS the Report of the Magistrate Judge and it ACCEPTS the Recommendation that Zuniga's claims against Smith and St. John be dismissed without prejudice based on Zuniga's failure to exhaust his administrative remedies.
II. MOTION TO AMEND
In the Report and Recommendation the Magistrate Judge stated:
However, before dismissing the case in its entirety, the plaintiff may, in his objections, seek leave to file an amended complaint naming a proper defendant for, and asserting an FTCA claim, had that been his intent. The court is mindful, however, that the discretionary exception [footnote] to the FTCA's "limited waiver" of the United States'[s] sovereign immunity might well divest this court of subject matter jurisdiction to entertain any claim thereunder.
[Footnote:] The discretionary function exception to the FTCA's limited waiver of liability provides that 28 U.S.C. § 1346 does not apply to a claim "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). Although 18 U.S.C. § 4042(a)(3) provides that the [Bureau of Prisons] has the mandatory duty to "provide for the protection, instruction, and discipline of all persons charged with or convicted of offenses against the United States, " the Bureau of Prisons "generally retains sufficient discretion in the means it may use to fulfill that duty." Cohen v. United States, 151 F.3d 1338, 1342 (11th Cir. 1998)(recognizing that the discretion exercised by prison administrations with respect to the safety and security of prison inmates and staff is the type of discretion which the discretionary function exception is intended to protect); see also, Spotts v. United States, 613 F.3d 559, 567 (5th Cir. 2010)(emphasizing that while § 4042(a) mandates that the Federal Bureau of Prisons must provide for the safekeeping, care, and subsistence of all federal prisoners, it "does not indicate the manner in which the ...