Ben Gary TRIESTMAN, Plaintiff-Appellant, v. FEDERAL BUREAU OF PRISONS, United States of America, Defendants-Appellees, 470 F.3d 471

PER CURIAM: Appellant Ben Gary Triestman appeals from a March 10, 2004 order of the United States District Court for the Northern District of New York (Mordue, J.) partially dismissing — pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure — Triestman’s complaint brought under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b)(1) and 2671 et seq., against the Federal Bureau of Prisons (“BOP”) and the United States of America. We conclude that Triest-man’s submissions, construed “liberally” and “interpret[ed] [so as] to raise the strongest arguments that they suggest,” Pabon v.

Wright, 459 F.3d 241, 248 (2d Cir.2006) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994)), should be read to allege a theory of liability under the FTCA that the district court did not consider below. Because the district court has jurisdiction to consider this theory of liability, dismissal pursuant to Rule 12(b)(1) was inappropriate and, accordingly, we vacate and remand to the district court for further proceedings. In addition, we recommend that the district court appoint counsel to assist Triestman in further pursuing his claims. BACKGROUND I.

Statement of facts At all relevant times, the BOP had in place a program statement which provided that “[signaling devices will be available for inmate use in all locked housing units that do not have continuous staff coverage,” and that “[i]nmates will not be left unattended in locked areas unless a signaling device is available to them for emergencies.” BOP Program Statement No. 1600.06(3-4) (Feb. 25, 1992).

The language of this program statement makes clear that prison officials must provide “continuous staff coverage” to, and may not leave “unattended,” any inmate in a locked housing unit who does not have access to an emergency “signaling device.” The precise terms “continuous staff coverage” and “unattended” are not defined in the program statement.

According to Triestman, while he was incarcerated at the Federal Correctional Institution at Ray Brook, New York (“FCI Ray Brook”), the BOP “neglect[ed] its duty of care” by failing to “adhere[ ] to its own regulations.” Specifically, Triestman asserts that BOP employees — namely, the correctional staff at FCI Ray Brook — “did not provide either emergency signaling devices or continuous staffing of the areas where inmates were left unattended in locked areas,” and, consequently, failed to comply with the BOP’s program statement.

It is undisputed that emergency signaling devices were not made available at FCI Ray Brook.

Triestman contends that “continuous staff coverage” was not provided either, and that, as a result, he was left “unattended in ... a locked area.” In support of this contention, Triest-man’s submissions have focused on the staffing policy in place at FCI Ray Brook which, Triestman argues, was so inadequate that it “cannot be interpreted as continuous staff coverage.” Under the staffing policy — according to Triestman’s undisputed description — a single guard was assigned to an officer’s station positioned in the center of numerous locked cells.

Triestman explains that “[tjwice throughout the night, at regularly scheduled times, the guard is to make a cell check, and peeks into the window of each darkened cell for about 5 seconds. Between these cell checks, the inmates are entirely beyond earshot of the guard.” Triestman alleges that he was “prevent-ably injured” as a result of FCI Ray Brook’s failure to provide “continuous staff coverage.” As a first-time, non-violent federal inmate, Triestman had originally been “designated a low security inmate and initially housed a[sic] low security facility at ...

Otisville, [New York].” On January 12, 1995, due to overcrowding at Otisville, Triestman was transferred to FCI Ray Brook, a “medium/high security prison.” Upon arrival at FCI Ray Brook, Triestman was assigned to share a cell with an inmate, Gerald Harris, whom Triestman argues “was known to the [BOP] to be a violent criminal and sexual predator.” Triestman’s appellate brief recounts the circumstances leading to his alleged injuries: On the morning of January 26, 1995, at approximately 4:00 am [sic], after a night of escalating cajoling, advances and threats to convince Plaintiff to participate in homosexual intercourse and sodomy, Gerald Harris assaulted Plaintiff out of frustration and extortion, whereas [sic] Plaintiff refused to submit to Harris’ overtures.

In the assault, Harris dislocated Plaintiffs shoulder and later burned his hand with lit cigarettes. Despite Plaintiffs shouts for help, no officer responded, and over this time Plaintiff was at the mercy of Harris, and in excruciating pain and fear.... When the officer finally did come by, Plaintiff banged on the door begging to be let out[;] the officer queried as to why through the closed door[;] and Plaintiff yelled that he had been attacked. The officer unlocked the door ... and later Plaintiff was escorted to the infirmary, where he was X-rayed, [and] his shoulder reduced without anesthetics.

Triestman says that, as a result of the attack, he “suffered acute excruciating pain, emotional distress, and continues to suffer chronic shoulder instability as well as continuing post traumatic stress.” We must, at this stage of the proceedings, accept these factual assertions as true. II. Procedural history In July 1996, Triestman, proceeding pro se, filed this FTCA suit. In counts four and five of his complaint, Triestman asserted that the BOP failed to provide him signaling devices and proper staffing at FCI Ray Brook.

The district court, adopting the report and recommendation of United States Magistrate Judge David R. Homer, concluded, in relevant part, that counts four and five of Triestman’s complaint were barred by the FTCA’s “discretionary function” exception to the federal government’s limited waiver of sovereign immunity. See 28 U.S.C. § 2680(a) (barring liability for “[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or [ ] employee ..., whether or not the discretion involved be abused”); see also Fazi v.

United States, 935 F.2d 535, 538 (2d Cir.1991) (describing the two-pronged Berkovitz-Gaubert test for determining whether a government employee’s conduct is protected under the discretionary exception function) (citing United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991); Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)). Accordingly, the district court granted the government’s Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, on the ground of sovereign immunity.

DISCUSSION On appeal, Triestman challenges only the district court’s dismissal for lack of jurisdiction of the allegations in counts four and five of his complaint — namely, that the BOP “did not provide either emergency signaling devices or continuous staffing of the areas where inmates were left unattended in locked areas,” and that this failure is causally related to the injuries he suffered. Accordingly, we address only those counts. I.

Standards of review and construction of pro se submissions Where, as here, a district court grants a defendant’s Rule 12(b)(1) motion to dismiss, we review the district court’s legal conclusions de novo, Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir.2005), and “must accept as true all material factual allegations in the complaint,” J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir.2004). See also Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

It is well established that the submissions of a pro se litigant must be construed liberally and interpreted “to raise the strongest arguments that they suggest.” Pabon, 459 F.3d at 248 (emphasis added) (quoting Burgos, 14 F.3d at 790); see also Brownell v. Krom, 446 F.3d 305, 310 (2d Cir.2006); Forsyth v. Fed’n Employment & Guidance Serv., 409 F.3d 565, 569 (2d Cir.2005); Sharpe v. Conole, 386 F.3d 482, 484 (2d Cir.2004); Wright v. Comm’r., 381 F.3d 41, 44 (2d Cir.2004); Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir.2003); Bennett v. Goord, 343 F.3d 133, 137 (2d Cir.2003); Weixel v.

New York City Bd. of Educ., 287 F.3d 138, 145-46 (2d Cir.2002); Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir.2000); McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999); Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996). This policy of liberally construing pro se submissions is driven by the understanding that “[implicit in the right of self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983); see also Ruotolo v.

I.R.S., 28 F.3d 6, 8 (2d Cir.1994) (recognizing that pro se litigants must be accorded “special solicitude”). See generally Jonathan D. Rosenbloom, Exploring Methods to Improve Management and Fairness in Pro Se Cases: A Study of the Pro Se Docket in the Southern District of New York, 30 FORDHAM URB. L.J. 305, 380 (2002) (“In this time of ever increasing legal costs and complexity of litigation, the pro se litigant is at an insurmountable disadvantage.”). III. Analysis A.

Triestman’s submissions, liberally construed Throughout this case, Triestman has manifestly argued that FCI Ray Brook’s staffing policy was itself negligent. He has not, however, expressly articulated the separate argument that FCI Ray Brook employees were negligent in their enforcement of this policy.

Nevertheless, under the circumstances of this case, the majority of this panel believes — in light of the “special solicitude” that is appropriately accorded to pro se litigants, see Ruotolo, 28 F.3d at 8 — that Triestman’s submissions can be read to assert the latter claim, i.e., that the officer on duty when the incident occurred failed to patrol or respond diligently to an emergency situation out of laziness or inattentiveness. Indeed, our court has, in a similar case, read such a “negligent guard” theory into a pro se complaint that was “susceptible to various readings.” See Coulthurst v.

United States, 214 F.3d 106, 109 (2d Cir.2000) (construing a pro se complaint as alleging negligence due to a BOP employee’s failure to perform a diligent inspection out of laziness, hastiness, or inattentiveness, in addition to a claim that the BOP’s inspection policy was itself negligent). As in Coulthurst, the language in Triest-man’s submissions is “broad enough to cover” the negligent guard theory. Coulthurst, 214 F.3d at 110.

Triestman’s appellate brief asserts that his “injuries would have been prevented had [the BOP] adhered to its own regulations,” and, broadly, that the BOP “is liable for neglecting its duty of care. ” This language must be liberally construed. See Dotson v. Griesa, 398 F.3d 156, 159 (2d Cir.2005) (applying a “liberal reading” to plaintiffs “pro se appellate brief’); Wright v. Comm’r., 381 F.3d at 44 (“[W]e construe pro se appellate briefs and submissions liberally and interpret them to raise the strongest arguments they suggest.”) (citation omitted); Ortiz v.

McBride, 323 F.3d 191, 194 (2d Cir.2003) (“This court construes appellate briefs submitted by pro se litigants liberally and reads such submissions to raise the strongest arguments they suggest.”) (citation omitted).

Similarly, Triestman’s complaint uses broad language in its assertion that the BOP “[flailed to institute and enforce proper staffing and patrolling for each wing of the housing units during lockdown, and thus did not provide due diligence and emergency response [sic] when such emergency occurred.... ” The words “institute and enforce” quite plainly “suggest” two separate but complimentary arguments: (1) that FCI Ray Brook’s staffing policy fell so far outside the range of appropriate judgment that it can no longer be viewed as an exercise of “discretion” in attempting to comply with the BOP’s policy statement; and (2) that FCI Ray Brook also “enforce[d]” that policy inadequately, due to the negligent actions of its employees.

It is true that Triestman, during oral argument before this panel, did not articulate the “negligent guard” theory for himself. But that is of no moment, as it was the obligation of the district court below to interpret Triestman’s complaint “to raise the strongest arguments that they suggest.” Pabon, 459 F.3d at 248 (citation omitted). B. Consideration of the negligent guard theory The negligent guard theory is a theory of liability under the FTCA over which the district court clearly has subject matter jurisdiction.

See Coulthurst, 214 F.3d at 109 (holding that a negligent guard theory would not fall under the discretionary function exception because “[sjuch negligent acts neither involve an element of judgment or choice within the meaning of Gaubert nor are grounded in considerations of governmental policy”). Therefore, Triestman’s complaint should not have been dismissed pursuant to Rule 12(b)(1).

See Aurecchione, 426 F.3d at 638 (holding that a plaintiffs complaint survived Rule 12(b)(1) dismissal where the plaintiff “made a colorable pleading of subject matter jurisdiction upon which the district court could have relied to adjudicate the complaint”). While expressing no ultimate view of the merits of the negligent guard theory in this case, or even of its capacity to withstand

summary judgment, we believe the claim is not so meritless that it can now be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Aurecchione, 426 F.3d at 638-39 (noting that, at the Rule 12(b)(1) stage of litigation, “it is not necessary for the district court to determine which party shall ultimately prevail”) (citing Scheuer, 416 U.S. at 236, 94 S.Ct. 1683 (“The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim[ ].

Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.”)). The complexity of the negligent guard theory in this case is such, moreover, that we believe a claim of this sort is best made with the assistance of counsel. Hence, we recommend that the district court, on remand, appoint counsel to aid Triestman in pursuing this claim. Cf. Mosseri v. Fed. Deposit Ins. Corp., 104 F.3d 356 (2d.

Cir.1996) (unpublished) (noting that “full briefing before the district court is ... desirable” and therefore “encouragfing] the district court to ... appoint counsel” for the pro se litigant). Furthermore, we decline at this time to rule on the justiciability or merits of the theory of liability that Triestman has explicitly presented to us, i.e., that FCI Ray Brook’s staffing policy was itself negligent.

We do so decline because, if the negligent guard theory can be made on remand, the answer that the defendants might give to such a claim — insofar as it touches on the clarity of the rules with which they were complying- — may affect the propriety of a dismissal, pursuant to the discretionary function exception, of Triestman’s “negligent policy” claim. Thus, in view of the possibly inextricable relationship between the negligent guard and negligent policy theories of liability, we believe it would be inappropriate to rule on these theories in piecemeal fashion.

Our learned dissenting colleague does not believe that the petitioner’s complaint can be read to assert the negligent guard theory of liability. In the end, that has to be a matter of judgment on which reasonable people may differ. There are many cases in which we have said that a pro se litigant is entitled to “special solicitude,” Ruotolo, 28 F.3d at 8; that a pro se litigant’s submissions must be construed “liberally,” Brownell, 446 F.3d at 310; and that such submissions must be read to raise the strongest arguments that they “suggest,” Pabon, 459 F.3d at 248.

At the same time, our cases have also indicated that we cannot read into pro se submissions claims that are not “consistent” with the pro se litigant’s allegations, Phillips v. Girdich, 408 F.3d 124, 127 (2d Cir.2005) (citation omitted), or arguments that the submissions themselves do not “suggest,” Pabon, 459 F.3d at 248; that we should not “excuse frivolous or vexatious filings by pro se litigants,” Iwachiw v.

State Dep’t of Motor Vehicles, 396 F.3d 525, 529 n. 1 (2d Cir.2005); and that pro se status “does not exempt a party from compliance with relevant rules of procedural and substantive law,” Traguth, 710 F.2d at 95 (citation omitted). In all candor, the rubric used in all these cases seems more likely to reflect the conclusion already reached by the court than to give much guidance in deciding which case falls on which side of the line. Under the circumstances, we must all do our best to gauge what is appropriate.

CONCLUSION We VACATE the district court’s dismissal of Appellant’s counts four and five, and REMAND to the district court for further proceedings consistent with this decision. Additionally, we recommend that the district court appoint counsel to aid Appellant in further pursuing his claims on remand. In identifying one line of argument that is clearly not barred by the discretionary function exception — i.e., the negligent guard theory — we express no opinion as to its ultimate merits.

Nor, in doing so, do we prevent counsel from pursuing other arguments — for example, whether FCI Ray Brook’s staffing policy falls outside the range of appropriate judgment, such that it can no longer be viewed as an exercise of “discretion” under the discretionary function exception — as counsel may deem appropriate. In leaving such matters to counsel’s judgment we, of course, do not suggest that any such arguments will be meritorious. Judge LYNCH dissents in a separate opinion. .

In an order filed on March 11, 2005, the district court, summarily adopting the report and recommendation of the magistrate judge, dismissed the remaining count in Triestman’s complaint. Triestman did not appeal this dismissal. .

Triestman argued to the district court that he had been wrongly classified at a higher security level, "which led to him being transferred to [sic] medium/high security prison and thus being placed into a circumstance of unwarranted higher risk of violence and risk.” The district court dismissed this “negligent transfer” claim, and Triestman does not appeal the district court’s decision on this point. . In August 1995, Triestman. also brought a Bivens suit, see Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against various BOP employees, based on similar factual allegations. The district court denied Triestman’s motion to consolidate his Bivens and FTCA suits, however, and then dismissed the Bivens suit on April 11, 1997. For reasons unknown, Triestman did not appeal the dismissal of his Bivens suit, and that case was closed. . While these arguments were presented in counts four and five of Triestman’s complaint, the magistrate judge relied, instead, on the numbering in the introductory

section of Triestman’s complaint, which listed these same arguments under numbers “2” and “3.” We will, like the district court, refer to the counts addressing signaling devices and staffing as counts four and five. . Triestman's complaint also alleges that "[a] single staff member cannot be said to be staffing both wings when he cannot hear or be alerted to an emergency in the opposing wing.” This language is, of course, consistent with the first argument, i.e., that FCI Ray Brook's staffing policy was hopelessly inadequate.

However, Triestman's claim about the inadequacy of the staffing policy is in no way inconsistent with the second argument about the negligence of BOP employees, which his complaint also fairly suggests. . Cf. Donald v. Cook County Sheriff s Dep’t, 95 F.3d 548, 555 (7th Cir.1996) (cautioning that while the court "is not to become an advocate” for a pro se litigant, it must "take appropriate measures to permit the adjudication of pro se claims on the merits”). See generally Ellen E. Sward, Values, Ideology, and the Evolution of the Adversary System, 64 IND.

L.J. 301, 321 n. 96 (1989) ("A judge can be impartial but very active in developing the case.... Impartiality is a requirement for fair adjudication, but judicial passivity is not.”).