An 11th Circuit panel held that a prisoner blinded by his cellmate in a scissor attack cannot sue the government for violations of his Eighth Amendment rights.
ATLANTA (CN) — A Florida prisoner cannot sue the government for violations of his civil rights after his cellmate stabbed him in the eye with scissors while he was asleep, the 11th Circuit ruled late Wednesday.
In a 23-page majority opinion, a panel of the Atlanta-based appeals court ruled 2-1 to reject Mackie Shivers’ attempt to overturn a district court’s dismissal his lawsuit.
Shivers, an inmate at a Florida federal penitentiary serving a life sentence for drug possession charges, sued the federal government and five prison employees under the Federal Tort Claims Act after his cellmate, Marvin Dodson, attacked him in 2015.
Dodson stabbed Shivers in his right eye with a pair of scissors as he slept, permanently blinding him.
Shivers claimed that prison officials knew, or should have known, that Dodson was mentally ill and had a history of assaulting his cellmates. He claimed he told guards that Dodson was acting erratically in the days before the stabbing but they failed to take any action.
In an April 2017 ruling, Senior U.S. District Judge William Terrell Hodges found that Shivers’ Eighth Amendment right to be free from cruel and unusual punishment was not violated.
The inmate appealed to the 11th Circuit, which heard arguments in the case in April 2020.
In an opinion issued Wednesday evening, the panel upheld Hodges’ finding that the government had immunity from Shivers’ claims under the Federal Tort Claims Act’s discretionary function exception.
Writing on behalf of the majority, Senior U.S. Circuit Judge Frank Hull, a Bill Clinton appointee, noted that “inmate-classification and housing-placement decisions fall squarely within the discretionary function exception” of the FTCA.
“Shivers points to no federal statute, regulation, or policy that specifically prescribes a course of action that the prison employees here failed to follow,” the opinion states.
Hull was joined in the majority by U.S. Circuit Judge Barbara Lagoa, a Donald Trump appointee. U.S. Circuit Judge Charles Wilson, a Clinton appointee, partially concurred.
The majority also found that Shivers failed to exhaust his administrative remedies against the prison employees.
But the panel was split on the question of whether a prison official’s decision about inmate placement is protected under the statutory exception when a prisoner says the decision violated the Constitution.
In a separate nine-page opinion dissenting in part, Wilson disagreed with the majority’s decision as to whether the discretionary function exception shields a government employee engaged in unconstitutional conduct from liability under the FTCA.
Wilson objected to the majority’s finding that a prisoner’s claim under the statute based on the government’s abuse of a discretionary function, “even unconstitutional tortious abuse,” is barred by the discretionary function exception.
“By violating the Constitution, a government employee necessarily steps outside his permissible discretion—and thus outside the discretionary function exception’s protection. Accordingly, I would join most of our sister circuits who have reached this issue and hold that the discretionary function exception does not shield the government from FTCA liability based on unconstitutional conduct,” Wilson wrote.
Wilson opined that he would vacate Hodges’ dismissal of Shivers’ FTCA claim and remand the case to decide whether Shivers plausibly alleged an Eighth Amendment violation.
When reached for comment Thursday, Fritz Spainhour, an attorney for Shivers, said he and his client are “considering our options to seek further review of this decision.”
“We respectfully disagree with the panel majority’s opinion that government employees have discretion to violate Americans’ constitutional rights,” Spainhour said. “Most circuits to address this question have ruled the other way, as Judge Wilson explained in his thoughtful dissent.”