Wednesday, April 4, 2018
Page 1
Ninth Circuit:
Discretionary Immunity Bars Liability for ‘Gassing’ Inmates
Opinion Says Conducting Training Exercise Using Chemicals Near Prison’s Recreational Yard On a Windy Day Was Pursuant to ‘Judgment or Choice’ and Policy Factors
By a MetNews Staff Writer
Discretionary immunity bars liability to an inmate who suffered ill effects from the prison recreational yard being “gassed” as the result of a training operation, using chemicals, being conducted in an adjacent parking lot during windy conditions, the Ninth Circuit Court of Appeals held yesterday.
A memorandum opinion of a three-judge panel affirms a dismissal, by District Judge William B. Shubb of the Eastern District of California, of a tort action brought by Zachary Barian, who is incarcerated at the Federal Correctional Institute in Lassen County.
The complaint alleges that on Nov. 26, 2012, there was a gush of gas fumes, causing his eyes and nose to burn, affecting his lungs, rendering him light headed, and resulting in coughing by him and other prisoners. It was later explained, that the person in charge of a training session “forgot to check his wind flaps” and was thus unmindful of the direction of the wind.
Lieutenant Kenneth Bolinski conducted the exercises. Members of the Disturbance Control Team were being trained in responding to institutional disturbances using tear gas.
Magistrate Judge’s Report
Shubb ordered dismissal by adopting findings and recommendations of Magistrate Judge Carolyn K. Delaney. She found that both prongs of discretionary immunity—that the challenged action reflected “an element of choice and judgment” and was based on “policy considerations”—were met.
She quoted a sworn declaration by Bolinski in which he said:
“Nothing in any policy I am aware of forbids training outside...in certain weather conditions…[or] addresses where training must be located...the amounts of munitions that must be utilized...or that [teams] train a certain manner with those munitions. Those decisions are left up to the facility’s management, to implement in a way that balances the need to train with other institutional requirements[.]”
Delaney wrote:
“Based on the foregoing. defendant has carried its burden to show that the first prong of the discretionary function test is met. Decisions concerning the specifics of the training exercise on November 26,2012, including its location and timing, involved ‘an element of choice and judgment’ on the part of prison officials.”
The second prong was satisfied, Delaney said, citing the declaration, that “the prison official who conducted the training on November 26, 2012 states that decisions about when, where, and in what weather, to train prion staff on the use of chemical agents, are made consideration of policy factors” including “prisoner well-being, staff safety, cost, and allocation of resources.”
Memorandum Opinion
The Ninth Circuit opinion says:
“We affirm for the reasons slated by the magistrate judge, which the district court adopted in full. Lieutenant Bolinski’s decisions relating to the time, place, and manner of the training exercise ‘involve an element of judgment or choice,’ and so satisfy the first part of the two-part test for the discretionary function exception…. Decisions regarding the training exercise also are ‘susceptible to a policy analysis’ in that they involve at least ‘two competing policy interests,’ including prisoner well-being and the need for training and readiness….This satisfies the second part of the test.”
If Bolinski was negligent, it doesn’t matter, the opinion declares. Discretionary immunity, it says, shields federal officials from tort liability “not only for negligence, but even for abuses of discretion, so long as the federal official’s discretion involves consideration of competing policy interests.”
The case is Barian v. U.S.A., No. 16-15603.
Barian was convicted on Nov. 1, 2004, in the U.S. District Court for the Eastern District of Wisconsin of conspiracy to distribute cocaine and cocaine base, and was sentenced to 30 years in prison.
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