NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-3918

___________

LENELLE GRAY,

Appellant

v.

UNITED STATES OF AMERICA

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(M.D. Pa. Civil Action No. 10-cv-01772)

District Judge: Honorable Yvette Kane

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 1, 2012

Before: JORDAN, HARDIMAN and ALDISERT, Circuit Judges

(Opinion filed: June 26, 2012)

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OPINION

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PER CURIAM

Lenelle Gray, a federal prisoner proceeding pro se, appeals an order of the United 

States District Court for the Middle District of Pennsylvania granting the Government’s 

motion for summary judgment in his action under the Federal Tort Claims Act, 28 U.S.C. 
2

§ 1346(b) (“FTCA”). For the reasons that follow, we will affirm in part and vacate in 

part the judgment of the District Court.

Gray alleged in his complaint that he and his cellmate, Andrew Bennett, were 

confined in the Special Management Unit (“SMU”) at USP-Lewisburg. Gray and 

Bennett notified a correctional officer on the morning of Friday, August 14, 2009, that 

they were not getting along, that they needed to be separated, and that Bennett was going 

to harm Gray. Later in the day, Gray and Bennett notified a second officer, Officer Blue, 

that they were having problems and that they would like to be separated before Bennett 

harmed Gray. Officer Blue told Gray that the Lieutenant had stated that he would have to 

wait until Monday, when the Unit Team came back.

Gray further alleged that later that night, while distributing razors for shaving, 

Officer Blue offered Gray a razor. When Gray replied that he would like a razor, Bennett 

struck Gray in the face with a razor and continued to attack him until correctional officers 

controlled him. Gray averred that he needed more than seventy stitches. Gray claimed 

that the correctional officers were negligent in failing to separate him from Bennett and 

that Officer Blue was negligent in failing to collect a razor that Bennett had obtained on a 

date prior to the attack.

The Government filed a motion for summary judgment asserting that Gray’s 

claims are barred by the discretionary function exception to the waiver of sovereign 

immunity under the FTCA. A Magistrate Judge recommended granting the 

Government’s motion on Gray’s failure-to-protect claim but denying the motion as to 
3

Gray’s claim against Officer Blue. The Government objected to the Magistrate Judge’s

report and the District Court ruled that the discretionary function exception bars both of 

Gray’s claims. The District Court granted the Government’s motion for summary 

judgment in full and this appeal followed.1

We have jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of review over 

the applicability of the discretionary function exception is plenary. S.R.P. v. United 

States

As recognized by the District Court, the United States has sovereign immunity 

from suit, except where immunity is waived. 

, 676 F.3d 329, 332 (3d Cir. 2012).

F.D.I.C. v. Meyer, 510 U.S. 471, 475 

(1994). The FTCA waives sovereign immunity for claims related to injuries “caused by 

the negligent or wrongful act or omission of any employee of the Government while

acting within the scope of his office or employment . . . .” 28 U.S.C. § 1346(b)(1). This 

waiver, however, does not apply to claims based upon the performance of, or failure to 

perform, a discretionary function. Id. § 2680(a). We have explained that the 

discretionary function exception does not apply every time there is a choice between 

courses of action, but it immunizes from second-guessing decisions grounded in social, 

economic, and political policy. S.R.P.

We recently set forth in 

, 676 F.3d at 332.

S.R.P.

 1

Gray pursues his claim against Officer Blue on appeal. He does not pursue his claim

that correctional officers failed to separate him from Bennett. We will affirm that portion 

the test for determining whether the discretionary 

function exception immunizes the government from suit. As a preliminary matter, a 
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court must identify the conduct at issue. Id. A court then determines whether the act

giving rise to the alleged injury involved “an element of judgment or choice.” Id. at 333

(citations omitted). If a “federal statute, regulation, or policy specifically prescribes a 

course of action for an employee to follow,” the discretionary function exception does not 

apply because the employee had no choice but to follow the directive. Id. (quoting 

Berkovitz v. United States, 486 U.S. 531, 536 (1988)). Where a course of action is not 

prescribed, a court must then consider whether the action at issue “is of the kind that the 

discretionary function exception was designed to shield.” Id. (citations omitted). As 

noted above, only actions and decisions based on public policy considerations are

protected under the discretionary function exception. Id. It is presumed that an agent’s

acts are grounded in policy when exercising discretion, but this presumption can be 

rebutted. Id.

The conduct at issue in this case concerns Officer Blue’s collection of razors in the 

SMU. Gray claims that Officer Blue was negligent in failing to retrieve the razor that 

Bennett used to attack him. The Magistrate Judge concluded that the discretionary 

function exception does not apply because Gray had pointed to a mandatory policy in the 

SMU Inmate Handbook requiring that razors be accounted for and disposed of at the end 

of a shower. The District Court, however, agreed with the Government that the SMU 

Inmate Handbook does not create a policy that removes the element of judgment or 

at 336.

 

of the District Court’s decision for that reason.
5

choice from correctional officers in carrying out their duties to provide for the 

safekeeping of inmates, but merely acts as a guide to inmates at the institution.

The record reflects that the Federal Bureau of Prisons issued Program Statement 

5217.01, which provides that each institution with a SMU will develop an Institution 

Supplement that addresses local operations and procedures. Exhibits in Support of 

Motion for Summary Judgment (“Exhibits”) at Ex. 2, Attach. A at 11. Pursuant to this 

Program Statement, an Institution Supplement was issued to implement local procedures 

for operating the SMU at USP-Lewisburg. Exhibits at Ex. 2, Attach. B at para. 1. The 

Institution Supplement provides that razors will be controlled by staff and that specific 

rules outlining procedures for showers are addressed in the SMU Handbook. Exhibits,

Ex. 2, Attach. B. at para. 5(f), 5(g), App. A.

The SMU Inmate Handbook states that showers will be for ten minutes and that, if 

an inmate wishes to shave, he will be issued a razor while showering. Exhibits at Ex. 1. 

Attach. D at 3. The SMU Inmate Handbook further provides that “[a]ll razors will be 

accounted for and disposed of at the end of the shower.” Exhibits at Ex.1, Attach. D at 3. 

The SMU Inmate Handbook, dated December 19, 2002, was the only document 

addressing showering procedures at the time of the assault. Decl. of M. Romano, 

Exhibits at Ex. 1, para. 5.

Reading these policies together, we do not agree with the District Court that the 

SMU Inmate Handbook “merely acts as a guide to inmates at the institution.” Dist. Ct. 

Dec. at 6. The District Court relied on language in the Handbook providing that the
6

guide is written to present a general overview of the SMU, that it is not intended to be a 

complete guide to all of the rules that will govern inmate behavior, and that it is intended

to assist inmates in adjusting to their new institution. Exhibits at Ex. 1, Attach. D at 1. 

The Handbook may serve these purposes, but the District Court did not address in its 

decision the fact that the Institution Supplement, which sets forth local procedures for 

operating the SMU, incorporates the Handbook as to certain procedures, including 

showering. The Government also does not discuss in its brief the Institution 

Supplement’s incorporation of the Handbook. Although the Institution Supplement is 

dated August 31, 2009, two weeks after the attack on Gray, the Government has not 

shown that the Handbook did not prescribe staff conduct.

We also disagree with the District Court’s conclusion that the language in the 

Handbook does not affect the discretion given to prison staff as to how to carry out their 

duties. As noted above, the Handbook states that “[a]ll razors will be accounted for and 

disposed of at the end of the shower.” Exhibits at Ex.1, Attach. D at 3 (emphasis added). 

As recognized by the Magistrate Judge, Gray has pointed to a mandatory policy requiring 

that razors be accounted for and disposed of at the end of a shower. Gray claims that 

Officer Blue violated this policy by not retrieving Bennett’s razor. Because a “policy 

specifically prescribes a course of action for [prison staff] to follow,” the task of 

collecting razors does not involve an element of judgment or choice and the discretionary 

function exception is inapplicable. S.R.P., 676 F.3d at 333.
7

This case is distinguishable from S.R.P., where we held that the discretionary 

function exception barred a claim that the National Park Service failed to warn of a

danger posed by barracudas to shallow water swimmers. S.R.P., 676 F.3d at 330. We 

explained that the policies at issue did not specifically dictate the way in which park 

officials should balance the preservation of park scenery and natural resources and public 

safety. Id. at 335. The policies in S.R.P., however, provided that the Park Service would 

reduce hazards with appropriate measures “[w]hen practicable.” Id. The policies further

provided that decisions about whether to give certain warnings was left to the discretion 

of decision-makers at the park level. Id. In contrast, the applicable policy here does not 

afford similar discretion but provides that razors will

The Government has not shown that Gray’s claim against Officer Blue involved 

discretionary conduct and is thus barred by the discretionary function exception to the 

waiver of sovereign immunity. Accordingly, we will vacate in part the judgment of the 

District Court and in all other respects we will affirm.

be collected at the end of a shower.