United States District Court, E.D. Virginia, Alexandria Division
M. Brinkema United States District Judge.
the Court is the United Slates' Motion to Dismiss [Dkt.
No. 30], Feb. 12, 2016, in which the United States
("defendant" or "the government") argues
that the sole remaining count in Frederick Baynes'
("plaintiff or "Baynes") Complaint is barred
by the discretionary function exception to the Federal Tort
Claims Act ("FTC A"), 28 U.S.C. § 2671 et
seq. United States' Mem. of Law in Supp. of its Mot.
to Dismiss at 2 [Dkt. No. 31], Feb. 12, 2016
("Def.'s Mem."). Plaintiff, pro se.
has filed an opposition to the government's motion, see
PL's Reply Mot. to Gov't's Mot. to Dismiss [Dkt.
No 33], Feb. 25, 2016 ("PL's Opp'n"), to
which the government has responded. See United States'
Reply Mem. of Law in Supp. of Its Mot. to Dismiss [Dkt. No.
34], Mar. 3, 2016 ("Reply"). On June 24, 2016, this
motion was converted to one for summary judgment. Order [Dkt.
No. 38J, Jun. 24, 2016, The government has provided
additional evidence to support its motion. United States'
Resp. to the Court's Order [Dkt. No. 37], Jun. 13. 2015
("Gov't Resp."), and Baynes has filed a reply
along with two additional exhibits. Reply Mot. [Dkt. No. 42],
Jul. 11, 2016. For the reasons that follow, summary judgment
will be granted in the government's favor.
18, 2014, Baynes filed an administrative complaint alleging
that he was the victim of a sexual assault for which he
sought $500 million in damages. Def.'s Mem., Ex. 2
(Admin. Compl.). That complaint was rejected. After
exhausting his administrative remedies, Compl. at 14 [Dkt.
No. 1], Baynes filed an unsworn Complaint in the United
States District Court for the Southern District of Illinois
using a standard form for such complaints, which was styled
as a Bivens action against the warden of the United States
Penitentiary (USPM) in Marion, Illinois, where plaintiff was
housed at that time; the warden of the Federal Correctional
Institution ("FCI") in Petersburg, Virginia, where
he was previously housed; and a foreman at FCI Petersburg,
Jason Payne ("Payne"). Compl. at 2. As relief,
plaintiff requested "mental health screening and
treatment, and financial compensation throught [sic] the
Federal Tort Claim [sic] Act (FTCA) in excess of $50, 000
dollars [sic] and continuing mental health services for
however long deem [sic] appropriate by outside Mental Health
proffessionals [sic]." Id. at 8. In the process
of conducting a threshold review of the Complaint pursuant to
28 U.S.C. § 1915A. Judge Gilbert of the Southern
District of Illinois distilled the allegations contained
therein into the following three counts:
Count 1: Federal Tort Claim for compensation
for the injuries Plaintiff sustained on April 26, 2013, as a
result of the negligence of prison officials at Petersburg;
Count 2: Eighth Amendment claim against
Defendant Payne for deliberate indifference to Plaintiffs
physical safety, for disclosing to other inmates that
Plaintiff had accused them of stealing, thus placing him in
Count 3: Eighth Amendment deliberate
indifference claim against unnamed Marion medical providers,
for failing to treat Plaintiffs serious mental health needs
Mem. and Order at 3-4 [Dkt. No. 6], Jan. 21, 2015. Judge
Gilbert then severed Count 2 into a new action, dismissed
Count 3 without prejudice for failure to state a claim, and
substituted the United States of America for all the
individual defendants named in Count 1. Id., at 8-9.
After that ruling, Baynes notified that court that he did not
wish to proceed with Count 2, requesting that it be
dismissed, and he stated that he did not wish to challenge
the dismissal of Count 3. Mot. to Notify the Court [Dkt. No.
9], Feb. 3, 2015. The government then filed a Motion to
Dismiss Pursuant to Rule 12(b)(3) for Improper Venue, or in
the Alternative, Motion for Change of Venue Pursuant to 28
U.S.C. § 1404(a) [Dkt. No. 15], Mar. 30, 2015, as to
Count 1, the single count remaining in this action. On
November 24, 2015, Judge Gilbert granted the motion and
ordered the action transferred to this district because all
of the allegations giving rise to the claim took place at FCI
Petersburg, which is within this district. Mem. and Order
[Dkt. No. 24], Nov. 24, 2015.
II. FACTUAL BACKGROUND
a pro se complaint must be read liberally,
Erickson v. Pardus, 551 U.S. 89, 94 (2007), in this
case there are so many contradictions and inconsistencies
among the various versions of the events that plaintiff has
supplied in the initial investigation, in his administrative
complaint to the Bureau of Prisons ("BOP"), and in
his opposition to the instant motion, that it is not possible
to regard any of the uncorroborated factual allegations in
plaintiffs Complaint with any degree of reliability.
Allegations in Plaintiff's Complaint and Instant
Count 1, Baynes alleges that he was sexually assaulted on
April 26, 2013 while he was incarcerated at FCI Petersburg
and working as a clerk in the laundry facility. Specifically,
he alleges that after he advised Payne that other inmates
were stealing t-shirts and other items off the shelves of the
laundry facility, Payne told the accused inmates "that
[Baynes] had informed him that they were stealing" and
"implyed [sic] that [Baynes] had ratted them out."
Compl. At 6. Count 1 further alleges that shortly thereafter,
three inmates confronted Baynes about "snitching on
them, " jumped him and knocked him unconscious with a
metal stool. Id. After he regained consciousness,
Baynes saw Payne, who was "walking away from [him],
" glance back at him and continue through a doorway.
Complaint alleges that after the assault, as he began to
stand up, Baynes realized that his pants were "around
[his] ankles and [that he] had been penetrated anally."
Id. at 7. He alleges that blood and semen were on
the floor, and that as he left the bathroom where he had gone
to compose himself, Payne appeared, inquired about what had
happened, and that he told Payne that "they jumped me
and knocked me out." Id. In response, Payne
asked how he would like to address the incident and plaintiff
replied that he wanted revenge. Id. Baynes claims
Payne told him to knock some boxes over and say that they
fell on him to avoid being sent to the Special Housing Unit
for fighting. Id. Baynes alleges that he followed
Payne's suggestion and that, with the help of two unnamed
inmates, Payne play-acted finding him and helping him off the
further alleges that after Payne pretended to find plaintiff
injured, he allowed Baynes go to the "hospital,
" but required two other inmates to
accompany Baynes to ensure that he did not go to the
Lieutenant's Office to report the assault. Id.
at 7. Baynes claims that he was still bleeding from his head
and mouth at that time and that he asked Payne to radio for
emergency assistance, but that Payne refused to make the call
because he needed to "clear up before [Special
Investigative Services ("SIS")] came to
investigate." Id. at 7-8.
next describes Baynes interaction with FCI Petersburg Health
Services Department ("Health Services") personnel,
who told the two inmates accompanying plaintiff to leave
after plaintiff said he did not need them. Id. at 8.
Baynes told the doctor at Health Services only that he
"had an accident in laundry" and the doctor
"cleaned [him] up;" he did not mention the alleged
physical or sexual assault that he now claims occurred
earlier that day. Id. Baynes claims that after
leaving Health Services, he "waited for [his]
opportunity to confront the inmates" who had attacked
him, and when he did confront them, "they again tried to
attack [him] but only one of them actually became physical
towards [him]." ]d That inmate and Baynes allegedly
"wrestled" until a point at which his opponent
produced a knife and "stabbed [Baynes] in the arm."
Id. FCI Petersburg staff eventually arrived and
broke up the light. Id.
Baynes returned to Health Services for treatment of his arm,
he revealed to the medical staff that he had initially lied
about the source of his injuries during the previous visit
because he wanted to avoid placement in the Special Housing
Unit so that he could seek revenge against the alleged
assailants. Id. Although he told medical staff that
Payne found him unconscious after he was attacked by other
inmates, he admits that he did not mention anything to
medical staff about being sexually assaulted. Id. at
result of the fight, Baynes was sent to the Special Housing
Unit and "after a couple of hours[, he] was in alot
[sic] of pain, " and requested medical attention and a
visit with "Lt. Norman" of SIS. Id. at 9.
The staff was unable to reach Lieutenant Norman; however,
medical staff responded to Baynes1 request and saw him around
6:30 p.m. when he reported that he had been attacked and that
he needed to see a doctor and a lieutenant. Id.
Medical staff told him that "everyone was gone until
Monday but [that] they would pass [his] request" along.
Id. Baynes alleges that Lieutenant Norman visited
him on Monday, April 29. 2013. Id. Nevertheless,
that date is contradicted by every written record in the
file,  which uniformly show that it was not until
May 1, 2013, five days after the alleged sexual assault, that
Baynes first reported the sexual assault when he was
interviewed by Lieutenant Norman. In that interview, Baynes
claimed that he "had been sexually assaulted when [he]
was knocked unconscious" and that he saw Payne walking
away as he regained consciousness. Id. at 9-10. In
his Complaint, plaintiff alleges that staff originally
planned to take him to an outside hospital for a rape kit and
further treatment, but that they eventually took him to
Health Services where the head doctor decided that a rape kit
would be futile because he believed all evidence was already
gone by then. Id., at 10.
eventually received psychological treatment and was
prescribed "psycho-tropic" medication. Id.
at 9. Baynes alleges that he was told "that everything
was being done to bring these [sic] people responsible for
the sexual assault to justice, " id.; however, all of
the evidence in the record shows that after the BOP
investigation, officials determined there was insufficient
evidence to conclude that there had been either a physical or
sexual assault on Baynes on the morning of April 26, 2013.
Inconsistencies Across Baynes'
are so many glaring inconsistencies among the allegations
plaintiff provided in his interview with Lieutenant Norman on
May 1, 2013, the date closest to the alleged assault, in his
sworn administrative complaint filed on June 16, 2014, the
unsworn Complaint dated December 14, 2014, and his opposition
to the government's Motion to Dismiss that it is
difficult to accept any of plaintiffs uncorroborated
allegations as credible. In his statement to Lieutenant
Norman, which was recorded five days after the incident, he
described the assault as involving being
confronted by inmate Roddell Chapell 
[("Chappell") about telling the foreman about the
missing T-shirts. Baynes then allege[d] that inmate Edward
Huckabee  [("Huckabee")] began arguing with him
while inmate Chappell was standing behind him. He stated that
Huckabee sucker punched him and he then grabbed both Huckabee
and Chappell to defend himself. Baynes then state[d] that
inmates Anthony Wynn  [("Wynn")] and Quindell
Ford  [("Ford")] engage[d] in the assault. Bayne
[sic] allege[d] that inmate Ford choked him until he was
Baynes stated when he regained consciousness he was bloody
about the head, face and his pants were pulled down to his
knees. He allege[d] there was [a] big puddle of blood in the
area where the assault took place. Bayne [sic] allege[d] that
during the alleged assault an unknown item was inserted into
Gov't Resp., Ex. 7 (Rep. of Incident), at 10.
administrative complaint, in which he sought $500 million in
damages, plaintiff named only Ford, Huckabee, and Chappell as
the persons who assaulted him in the laundry facility, and
even though he was unconscious, this time from a "blow
to the head by a [sic] iron stool, " he accused Ford of
"pull[ing] [his] pants down and sexually assault[ing]
[him]." Admin. Compl. at 2. In contrast, in his
Complaint, Baynes alleges that "three inmates confronted
[him] about snitching" and knocked him out, but he
neither provides any detail about their identities nor
suggests who among them committed the sexual assault. Compl.
at 6-7. finally, in his unsworn opposition to the
government's motion, Baynes suggests for the first time
that Payne might have been the person who sexually assaulted
him, stating that "it is unknown by whom the sexual
assault was performed" and that "he had been anally
penetrated by either Payne or the inmates who attacked him[,
] or both." PL's Opp'n at 3.
Complaint's description of his first interaction with
Health Services is also inconsistent with Baynes'
administrative complaint. In Baynes' administrative
complaint, he says that he did not tell the medical personnel
what had happened to him because he "was ashamed to tell
them that [he] had been sexually assaulted." Admin.
Compl. at 4. The Complaint clearly states that he withheld
information about the source of his injuries because he did
not want to be sent to the Special Housing Unit before
exacting revenge upon the inmates who he believed had