ATLANTA (CN) — A Florida prisoner asked an 11th Circuit panel Thursday to reinstate his lawsuit claiming that prison officials violated his civil rights when they put him in a cell with an inmate who later stabbed him in the eye with scissors while he was asleep.
Mackie Shivers, an inmate at a Florida federal penitentiary serving a life sentence for drug possession charges, sued the federal government and five prison officials under the Federal Tort Claims Act after his cellmate, Marvin Dodson, attacked him in 2015 while he was asleep.
Dodson stabbed Shivers in his right eye with a pair of scissors, blinding him. Shivers claims that prison officials knew, or should have known, that Dodson was mentally ill and had been violent towards cellmates in the past.
He also says he told guards that Dodson was acting erratically in the days before the stabbing but they did not take any action.
Shivers alleges that his Eighth Amendment right to be free from cruel and unusual punishment was violated by the officials’ indifference to his housing concerns.
On Thursday, an attorney representing Shivers asked a three-judge 11th Circuit panel to overturn a Florida district court’s ruling dismissing the lawsuit on the basis that the government has immunity from Shivers’ claims under the Federal Tort Claims Act’s discretionary function exception.
Senior U.S. District Judge William Terrell Hodges, a Richard Nixon appointee, ruled in 2017 that safety and housing decisions made by officials fall under the exception because the law does not outline a mandatory course of conduct for prison staff to follow, giving them broad latitude to make choices based on their own discretion.
Arguing on behalf of Shivers via teleconference Thursday morning, attorney Charles F. Spainhour of Bradley Arant Boult Cummings told the Atlanta-based 11th Circuit panel that the discretionary function exception to the Federal Tort Claims Act does not immunize unconstitutional conduct.
“The Supreme Court is clear that being violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses,” Spainhour said.
“The facts that Shivers has alleged show that the officials’ conduct was in violation of the Eighth Amendment,” the attorney continued. “Mr. Shivers expressed his fears that Mr. Dodson was acting erratically and that he might harm Mr. Shivers and the government officials didn’t do anything. Mr. Shivers’ fears came true.”
Spainhour told the panel that prison officials’ disregard for the risk of harm to Shivers led directly to the attack.
The attorney asked the panel to remand the case to the district court for a ruling on whether Shivers plausibly alleged a violation of his Eighth Amendment rights, which would render the discretionary function exception inapplicable.
Assistant U.S. Attorney Jennifer Waugh Corinis, arguing for the government, told the panel that Shivers’ allegations are “simply inadequate” to raise a plausible Eighth Amendment violation and urged the panel to affirm the district court’s dismissal.
“It would turn the discretionary function exception on its head,” she said.
“Negligence in prison housing assignments is protected by discretionary function exception generally,” Corinis added. “You have to prove both subjectively and objectively that officials knew of that specific threat and that they failed to act.”
In his rebuttal, Spainhour argued that “a specific threat is not required to plausibly allege a constitutional violation.”
Thursday’s hearing was held via teleconference due coronavirus-related court closures.
The panel was made up of U.S. Circuit Judge Barbara Lagoa, appointed by President Donald Trump, as well as U.S. Circuit Judge Charles Wilson and Senior U.S. Circuit Judge Frank Hull, both Bill Clinton appointees.
The panel did not indicate when it would reach a decision in the case.