Jerome Paulette v. United States , 84 F. App'x 730 ( 2004 )


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  •                    United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 03-2235
    ___________
    Jerome Paulette,                       *
    *
    Appellant,                *
    * Appeal from the United States
    v.                               * District Court for the Eastern
    * District of Arkansas.
    Marvin D. Morrison, Warden, FCI -      *
    Forrest City; Melvin Smith, Captain,   *      [UNPUBLISHED]
    FCI - Forrest City; Ronald G.          *
    Thompson, Regional Director;           *
    Kathleen Hawk-Sawyer, Director,        *
    Bureau of Prisons;                     *
    *
    Defendants,               *
    *
    United States of America,              *
    *
    Appellee.                 *
    ___________
    Submitted: December 23, 2003
    Filed: January 12, 2004
    ___________
    Before BYE, BOWMAN, and MELLOY, Circuit Judges.
    ___________
    PER CURIAM.
    Federal inmate Jerome Paulette appeals the District Court’s1 adverse decisions
    regarding his claims under Bivens v. Six Unknown Named Agents of Fed. Bureau of
    Narcotics, 
    403 U.S. 388
    (1971), and the Federal Tort Claims Act, 28 U.S.C.
    §§ 2671–2680 (2000) (FTCA). According to Paulette’s complaint, he was assaulted
    by a fellow inmate on January 17, 2000, following a dispute with the inmate over
    television use. Paulette claimed the assault was the result of defendants’ negligence
    and deliberate indifference. Upon de novo review, see United States v. Dico, Inc.,
    
    136 F.3d 572
    , 575 (8th Cir. 1998), we affirm.
    We conclude the District Court properly dismissed Paulette’s Bivens claims
    without prejudice, because Paulette did not submit evidence of complete exhaustion.
    See 42 U.S.C. § 1997e(a) (2000); Porter v. Nussle, 
    534 U.S. 516
    , 524 (2002). We
    also conclude the district court properly granted summary judgment on the FTCA
    claims. See Knudsen v. United States, 
    254 F.3d 747
    , 749 (8th Cir. 2001) (noting
    de novo standard of review). The government cannot be liable on Paulette’s claims
    that prison officials were negligent in assigning him to the Federal Correctional
    Institution at Forrest City, Arkansas (FCI), or in maintaining inadequate security at
    FCI, because such decisions fall within the discretionary-function exception to the
    FTCA. See Santana-Rosa v. United States, 
    335 F.3d 39
    , 44 (1st Cir. 2003) (holding
    that classification and assignment decisions—as well as the allocation of guards and
    other correctional staff fall—within discretionary-function exception to FTCA);
    Cohen v. United States, 
    151 F.3d 1338
    , 1344 (11th Cir. 1998) (classifying prisoners
    and placing them in institutions involves conduct meeting prerequisites for
    discretionary-function exception), cert. denied, 
    526 U.S. 1130
    (1999). As to
    Paulette’s claim that FCI was overcrowded, Paulette did not rebut the government’s
    evidence that the prison met relevant occupancy standards, or explain how any
    noncompliance rendered FCI negligent.
    ______________________________
    1
    The Honorable Stephen M. Reasoner, United States District Court for the
    Eastern District of Arkansas.
    -2-