Alfrey

Opinion by Judge GRABER; Concurrence in part and dissent in part by Judge TASHIMA

In this ease, we must decide, first, whether the discretionary-function exception, 28 U.S.C. § 2680 (a), bars Plaintiff Jane Largent Alfrey’s action against the United States (Government) under the Federal Tort Claims Act (FTCA). Plaintiff alleges that the Government’s negligence resulted in the death of her husband, Thomas Martin Alfrey, an inmate at the Sheridan Federal Correctional Institution (Sheridan). Specifically, she alleges that the Government negligently assigned her husband to share a cell with an inmate serving a state sentence, who eventually killed him; negligently failed to remove her husband from the cell after his cellmate had threatened him; negligently failed to investigate the cellmate on a computer database; and negligently failed to find the murder weapon during a search of the cell following the threat. With one exception, we conclude that the Government’s conduct, even if negligent, involved the exercise of discretionary functions. The exception is Plaintiffs claim that the Government negligently failed to discharge a nondiscretionary duty to perform a “Central Inmate…

concurring in' part and dissenting in part:

I concur in all of the majority opinion, except for its holding that the discretionary function exception to liability under the Federal Tort Claims Act (FTCA) immunizes the negligent cell search, and the majority’s reasoning in reaching that result.

Thomas Martin Alfrey was murdered by his cellmate Daniel Casto after alerting authorities at the Sheridan Federal Correctional Institution that Casto had threatened to “hang” him to death. Sheridan authorities found Casto’s threat sufficiently credible to order a search of the cell; however, that search turned up no weapons or other contraband and Alfrey was summarily returned to his cell. A short time later, Alfrey was found dead, strangled to death by Casto with a makeshift “rope” made from torn sheets. This “rope” was apparently smuggled into the cell, as none of the sheets in the cell were torn. As it turns out, the prison guards who searched Alfrey’s cell were not specifically instructed to look for materials that could be used to hang or strangle Alfrey; therefore, they neither removed the sheets or blankets from the bunks, nor looked inside the pillows in the cell.

The majority…