… she was sexually assaulted, brutally beaten and raped by a prisoner who escaped from a work release halfway house.

Bailor v. Salvation Army, 51 F.3d 678United States Court of Appeals for the Seventh Circuit

District Court, N.D. IndianaDecember 5, 1994, Argued ; April 3, 1995, Decided

No. 94-2660

VenueUnited States Court of Appeals for the Seventh Circuit

District Court, N.D. Indiana

Place of employment of Adela Bailor

Plaintiff Adela Bailor

William Holly 81379 - South Mississippi Correctional Institution - Mississippi State Prison

Perpetrator William Holly

Facts of Perpetrator

History of Offenses Prior to Bailor• Several arrests prior to 1969, including: threatening his mother; public

intoxication; two charges of battery against his wife; a charge of rape which resulted in a 6 month surety for night prowling; forging prescriptions; writing bad checks and vagrancy.

• From 1969 and into the mid 1970's, Holly was twice convicted of possession of heroin, once convicted of breaking and entering, and once convicted of forgery.

• August 26, 1975, when Holly, and two other men, committed an armed bank robbery in South Carolina on February 2, 1976 he was sentenced to eighteen years at the U.S. Penitentiary in Terre Haute, Indiana.

• December 8, 1990, he was recommended tobe transferred to the Salvation Army facility.

• On January 21, 1991, Holly was transferred to the Salvation Army Facility.

Background• This is a case that arises from the brutal rape and

beating of Adela Bailor by William Holly on May 9, 1991.• Defendant is the Salvation Army which operates a

halfway house for Criminal Offenders which is pursuant to a contract with the Federal Bureau of Prisons- BOP.

• William Holly is not a party to this action . He was a federal inmate with custody of the United States Attorney General and the BOP.

• In 1991 he was transferred from the Metropolitan Correction Center MCC to the Salvation Army Facility from which he later escaped, just a few days prior to the attack on Adela Bailor.

Background con’t• On January 21, 1991, Holly was transferred to the Salvation

Army Facility for the six (6) month maximum, with a projected release date June 8, 1991.

• Holly was free to come and go as he pleased so long as he signed in and out by 11:00 p.m.

• He was also required to submit to mandatory, random drug-testing at least four times a month.

• On May 6, 1991, a lab report showed that Holly's sample tested positive for cocaine and he received a violation notice and was to report back to Salvation Army

• Adela Bailor was working at the Salvation Army alone when Holly came in agitated and hostile.

• William Holly locked the office door and brutally raped and beat Bailor.

Plaintiff ClaimsBrought an action against defendants, employer, halfway house corporation, ministry official, and the federal government, alleging common law intentional tort and negligence in failing to control an inmate, who brutally raped and beat her at her place of employment.• Claims that the United States is vicariously liable for the alleged

negligence of the Salvation Army, who she claims was acting as an agent of the BOP (Bureau of Prisons), the Salvation Army.

• Salvation Army negligently failed to adequately monitor, supervise and restrict Holly's activities, such that he escaped from the Salvation Army facility

The Facts & PlaintiffAdela Bailor

Plaintiff Claims

• Holly had failed a drug test, the Salvation Army negligently failed to call BOP or the United States Marshal to detain Holly before notifying Holly of the drug test disciplinary violation;

• Salvation Army negligently failed to notify appropriate individuals and/or law enforcement agencies of Holly's escape from the Salvation Army's facility;

• In short, the current motion before the Court focuses on the Plaintiff's contention that a private halfway house has a duty to a third person injured by an escaped convict if the halfway house has failed to exercise reasonable care in accepting or controlling a prisoner it has accepted into its program.

The Facts Defendant

Defendants • Prison Fellowship Ministries, and the Salvation

Army have all filed motions for summary judgments and federal government sought dismissal on all claims.

Defendants Claims

Salvation Army/Prison Fellowship Ministries argue that they owed no duty to the Plaintiff under Indiana law, that the harm which occurred, nor its victim, were reasonably foreseeable; meaning that any breach of duty by the Salvation Army was not the proximate cause of the Plaintiff's injury.

• The United States has moved for dismissal of both claims pursuant to Rule 12(b)(1) by arguing that it enjoys sovereign immunity

• In addition, the United States objects to venue and has moved for dismissal pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure.

To premise a recovery on a theory of negligence, a plaintiff must establish three elements: 1. a duty on the part of the defendant to conform his

conduct to a standard of care arising from his relationship with the plaintiff,

2. a failure of the defendant to conform his conduct to the requisite standard of care required by the relationship, and

3. an injury to the plaintiff proximately caused by the breach. Under Indiana law, the existence of a duty is a question of law.

Three factors which must be considered and balanced in order to impose a duty: 1. The relationship between the parties.2. The reasonable foreseeability of harm to the

person injured.3. Public policy concerns.

1. Relationship between the parties:• The general rule is that there “is no duty to protect

others against harm from third persons”. • the Court of Appeals noted that there was no evidence

to indicate that the halfway house had any ability to control the parolee.

• The halfway house is a non-custodial home and [the parolee] was free to go about his business until 12:00 midnight when he was required to be in his room.

Analysis

2. Foreseeability:• In analyzing the foreseeability component of duty we focus on

whether the person actually harmed was a foreseeable victim and whether the type of harm actually inflicted was reasonably foreseeable. Webb, 575 N.E.2d 992, 996-7.

• There is no evidence to suggest that Holly was very much different from the thousands of other inmates that regularly pass through halfway houses in the United States NIPSCO v. Sell, 597 N.E.2d 329, 334 (Ind. App. 1992).

The facts of this case do not give rise to an inference that Holly was a foreseeable escape risk who would cause harm to others.

Analysis

Analysis3. Public Policy• Public policy strongly weighs against imposing liability

upon the Salvation Army. The Sentencing Reform Act of 1984.

• Primary function of any CCC Community Correctional Center is rehabilitation. 66 S. CAL. L. REV. 217, 222 (1992).

• Serve as a dual role; they assist offenders in becoming law abiding citizens, being self sufficient and making the transition from confinement to community living. 18 U.S.C. § 3624.

Analysis3. Public Policy con’t• Relieves institutional overcrowding and costs,

"the average cost to house an inmate in a CCC is $32/day, in contrast approximately $48/day for the average Bureau of Prisons facility". $ 7.9 million being returned to the government. Title 18 U.S. Code, Sections 4002, 4082, 5013, and 5040.

Conclusion• “Sovereign immunity is a jurisdictional prerequisite." • 28 U.S.C.S. § 2680(a). Bank One, Texas, N.A. v. Taylor, 970 F.2d 16, 34 (5th Cir.

1992);

• Bailor alleges that the BOP negligently placed Holly at the Salvation Army, gave inadequate directives for monitoring Holly, and failed to enforce existing rules concerning the notification of proper authorities. The United States contends that this claim is barred by the discretionary function exception. 28 U.S.C. § 2680.

• "Prison officials have broad administrative and discretionary authority over the institutions they manage. . ." Hewitt v. Helms, 459 U.S. 460, 468, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983). Decisions whether to transfer inmates like Holly are "based on a combination of factors, many of which are entirely subjective appraisals by [the BOP] based on their experiences. . . .

• "the regulations do not convert the acts of [the Salvation Army] into federal governmental acts." Orleans, 425 U.S. at 816- 18. The Salvation Army is clearly a contractor, not an employee of the United States.

• The U.S. District Court for the Northern District of Indiana granted defendant’s motion for summary judgment and dismissed the case. As a matter of law, we must affirm the district court.

• The Salvation Army had physical custody of William Holly, but not legal custody.

• Ms. Bailor, although not eligible for relief under laws of general applicability is free to address such a request to the political branches.

• Affirmed.

Conclusion

Julia Carson• Former United States Representative• Introduced a private bill to help Adela Bailor

with financial relief.• Julia May Carson was a member of the United

States House of Representatives for Indiana's 7th congressional district from 1997 until her death in 2007.

Newspaper Clip A Private Bill for Benefit of

Adela Bailor

The Bill for the Relief of Adela Bailor 107th CONGRESS

1st SessionH. R. 1709

For the relief of Adela T. and Darryl Bailor.IN THE HOUSE OF REPRESENTATIVES

May 3, 2001Ms. CARSON of Indiana introduced the following bill; which was referred to the Committee on the Judiciary

A BILLFor the relief of Adela T. and Darryl Bailor.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,SECTION 1. PAYMENT.In consideration of--(1) the inability of Adela T. and Darryl Bailor to receive compensation under the Tort Claims Procedure described in chapter 171 of title 28, United States Code;(2) the moral responsibility of the United States to protect the right of its law-abiding citizens to be free from attacks by violent felons in the custody of the United States; and

The Bill for the Relief of Adela Bailor

(3) the recommendation of the United States Court of Appeals for the 7th Circuit in the case entitled Adela T. Bailor and Darryl Bailor v. the Salvation Army and the United States of America, No. 94-2660, that Adela T. and Darryl Bailor seek private legislative relief,the Secretary of the Treasury shall pay, not later than 18 months after the date of the enactment of this Act, out of funds not otherwise appropriated, to Adela T. and Darryl Bailor of Colorado Springs, Colorado, the amount determined by the Attorney General under section 2(b), as full compensation for the injuries Adela T. Bailor suffered as a result of a brutal rape and beating on May 9, 1991, by an inmate of the Federal correctional system in the custody of the Federal Bureau of Prisons.SEC. 2. AMOUNT.(a)TRANSMITTAL OF CLAIMS- Not later than 6 months after the date of the enactment of this Act, Adela T. and Darryl Bailor, or their representatives, shall transmit to the Attorney General all claims for compensation for the injuries referred to in section 1.

(b) DETERMINATION OF THE ATTORNEY GENERAL- Not later than 1 year after the date of the enactment of this Act, with appropriate consideration given to the claims transmitted under subsection (a), the Attorney General shall determine the amount that the United States owes, using Indiana tort law, to Adela T. and Darryl Bailor for the injuries referred to in section 1.

Outcome of William Holly• Holly was serving a federal sentence in Pennsylvania when he

was brought to Indiana to face charges of attempted murder, rape, and robbery. In 1994, Holly was convicted and sentenced to fifty years for attempted murder, twenty years for rape, and eight years for robbery—to run consecutively, for a total term of seventy-eight years.

• Holly was returned to Pennsylvania to serve the remainder of his federal sentence, July 1995, Holly was returned to Indiana and incarcerated in the Wabash Valley Correctional Facility with an earliest possible release date of 2036.