The U.S. Court of Appeals for the Ninth Circuit has upheld the dismissal of the majority of a lawsuit brought by the estate of a prisoner who was beaten to death by his cellmate.

In 1997, prisoner Daniel Castro was transferred from an Oregon state prison to a Sheridan federal prison to face charges of sending a threatening letter to a judge. He was assigned to a cell occupied by Thomas Alfrey. Within a week, Alfrey told a guard that Castro had threatened to kill him and asked to be transferred to another cell. Alfrey told guards Castro threatened to hang him.

Instead of moving Alfrey, a search of Alfrey and Castro's cell was ordered. But the searching guards were not told what to look for, i.e, they were not told to look for a rope or other implement that could be used to hang someone. As a result, guards did not do a "thorough" search of the cell and did not find the rope Castro has fashioned out of a sheet and hid inside his pillow. Alfrey was ordered to return to his cell. That same night, guards found Alfrey face down on the floor of his cell with a "rope" around his neck. He died that evening at the local hospital.

Alfrey's family sued prison officials and the United States, bringing a Federal Tort Claims Act (FTCA) claim as well as a Bivens action. Alfrey's estate claimed that prison officials owed Alfrey a duty of care and they were deliberately indifferent and negligent in placing Alfrey in a cell with Castro after Alfrey reported Castro's threat to kill him. Prison officials were also negligent in the lax cell search and for not screening Catro's history prior to assigning him to Alfrey's cell.

Defendants moved for summary judgment which the district court granted in its entirety, holding that all plaintiff's FTCA claims were barred because the challenged conduct involved the exercise of discretion. The Bivens action was dismissed for failure to state a claim. Plaintiff appealed to the Ninth Circuit.

In upholding the dismissal of all claims except for the issue of whether prison officials were required to screen Castro's history prior to assigning him to a cell (the "CIM" Evaluation claim), the appellate court held that the guards who cursorily searched Alfrey's cell and failed to find the murder weapon were performing a "discretionary function" and thus immune from an FTCA claim.

"A prison official's assessment of what type of search is needed is informed by professional training and experience," the court wrote. "But that fact alone does not remove the decisions from the realm of policy-based judgments." The failure to find the "rope," while "possible negligence," involved no policy judgment, the court said.

On the other hand the Ninth Circuit said the district court erred in dismissing the CIM Evaluation claim because the prison's own rules require such an evaluation prior to placing a state prisoner such as Castro in a cell with a federal prisoner. The regulations imposed a "nondiscretionary duty to perform an evaluation before placing Castro in Alfrey's cell," the court held. Because the CIM Evaluation was not performed, and could have caused Castro not to be placed in Alfrey cell, "the district court erred when it ruled that there was no genuine issue of material fact as to whether the Government had a nondiscretionary duty to perform a CIM Evaluation of Castro as part of his cell-assignment process."

The case was thus affirmed in part and reversed in part and remanded to the district court. The court ordered all parties to bear their own appellate costs. See: Alfrey v. United States, 276 F.3d 557 (9th Cir. 2002).

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