Amy Richardson

Lauren Snyder

Owen Smith

On Feb. 23, the 16-year-old daughter of a nuclear physicist who died by suicide in a Virginia jail sued the federal government for her father's wrongful death.[1]

After two years of psychiatric treatment in custody, doctors at the federal medical center in Butner, North Carolina, declared that he was competent to stand trial in early 2021.

He was then transferred to a jail in Alexandria, Virginia, and pleaded guilty.

His sentencing judge ordered that he be returned to the federal medical center at Butner, but Butner defied the order and refused to take him back. A psychiatrist in the Alexandria jail then discontinued his medical treatments. A month later, he took his life.

Even had the nuclear physicist been transferred back to the federal medical center at Butner, his safety would not have been guaranteed.[2] Indeed, 4,234 persons died in state and federal prisons in 2019, and that number has surely increased since then.[3]

Federal law enforcement agencies reported 614 deaths in custody in 2020.[4] From 2016 to 2019, federal agencies reported an average of 449 deaths in custody each year.[5] There were more deaths in custody in 2020 than in any year since 2016.[6] Statistics for 2021 and 2022 are not yet available.

When the death of an incarcerated person is caused by the wrongful acts of the government, the deceased and their survivors are just as deserving of justice as a person who died outside of prison. Unfortunately, their survivors face an uphill battle against the Federal Bureau of Prisons, regardless of how heinous the acts were that caused their deaths.

The legal avenues to relief are littered with landmines that can end a claim — in whole — before a survivor has a chance to fight for justice in court.

We recently litigated a wrongful death claim involving the federal medical center at Butner in Coddington v. U.S.[7] From inception through settlement it was a cumbersome process, and we often leaned on other lawyers throughout it for advice.

This article discusses lessons learned that may aid other lawyers looking to pursue similar civil rights cases.

The SF-95

The Federal Tort Claims Act provides a limited waiver of the U.S.' immunity from suit, allowing claims for damages:


To institute an action pursuant to the FTCA, you are required to file a notice of claim with the federal government. This notice of claim is commonly called by its standard form number: SF-95.

You are limited by what is included in the SF-95.

When filing an SF-95, you are required to state a basis for your claim and the total amount in damages you are seeking, among other information.

When completing the form, it is important to be as broad as possible because you will ultimately be limited to that relief, absent narrow exceptions.[9]

Consider employing an economist as a consulting expert to calculate potential economic and noneconomic damages before filing the SF-95. That way, you will have a basis for the number you include in your SF-95. This will also help manage client expectations.[10]

You will ultimately need a damages expert, in any event, if the case progresses to the discovery stage.

List all the potential causes of action that you can think of, and try to leave it open-ended by, for example, stating, "the events described in the SF-95 support, but are not limited to, the listed claims."

The decedent's legal representative must file the SF-95.

Although it may seem intuitive that a widow or next of kin may file the SF-95 on behalf of a decedent, the SF-95 and state law complicates this process.

The SF-95 provides that the "claim may be filed by a duly authorized agent or other legal representative, provided evidence satisfactory to the Government is submitted with the claim establishing express authority to act for the claimant."

In North Carolina, for example, a wrongful death claim must be "brought by the personal representative or collector of the decedent" under state law.[11]

In cases against the BOP, in particular, the decedent may not have been a permanent resident of the jurisdiction in which you bring the lawsuit, because the prison may be located elsewhere.

If that is the case, consider working with local trust and estates counsel to appoint a personal representative or other representative designated by law in the state where you plan to file suit.

The SF-95 instructions require evidence of the individual's authority to act for the claimant.

Service of the SF-95 can be difficult.

There is an abundance of litigation over proper and timely service of the SF-95 that can end a suit before it begins.

To avoid this, you should, among other things:

• File the SF-95 well in advance of the statutory deadline — one year in advance, if you can;

• Keep records of service through certified and registered mail tracking capabilities;

• Scan everything for your records, including the postage paid envelope;

• Request a stamp and return acknowledgement of filing, and provide a prepaid self-addressed envelope for that purpose; and

• Serve it on the regional field office per guidance in the BOP's program statement on filing SF-95s,[12] as well as other officials at the BOP via mail and email.

Hurry up and wait.

After you serve the SF-95, you must wait until the federal agency denies the claim before filing in federal court.[13]

If the agency does not make a decision within six months after the SF-95 is filed, however, the claimant may deem the agency's inaction a final denial of the claim.[14]

Once those six months have passed, consider contacting the agency for the record noting that six months has come and gone since the SF-95 was filed, that your client deems this inaction a final denial, and that the agency may close its investigation.

This may trigger an official response from the BOP denying your claim and closing its administrative review. This is important because it means you must file the SF-95, at the very latest, six months before the statute of limitations will run on the underlying tort claim. Otherwise, you will not be able to file a timely claim.

Filing the Complaint

Consider naming individual defendants.

Consider naming not only the BOP, but also the individuals who played a role in the decedent's death as defendants in the lawsuit. If you opt to do this, you may find it difficult to figure out who the individuals are and who employed them.

BOP medical providers might, for example, be BOP employees; government contractors employed by private entities; government contractors employed by a medical entity run by a distant state; private subcontractors of that medical entity run by a distant state; or a medical provider assigned to the BOP through the U.S. Public Health Service Commissioned Corps.

If you file the complaint well in advance of the statute of limitations, you will be able to fix issues that arise — e.g., naming the incorrect employer defendant, or including a defendant who is immune — in a timely fashion. This means adding another few months, in addition to the six months added for the SF-95 review, to your timeline.

You also might not know the identity of each defendant you would like to bring your action against. We recommend filing the complaint against the defendants you know by name, and then include "unknown officers" or "unknown providers" as well. Once you have learned who the unknown individuals are, you can amend your complaint to include them.

You can also bring Bivens claims.

As noted above, FTCA claims are premised on the laws in the local jurisdiction in which the act or omission causing injury occurred — likely the state where the prison was located if you are filing a tort claim against the BOP.

In addition to state claims, you can bring constitutional claims against individual employees of the federal government pursuant to the U.S. Supreme Court's 1971 decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.[15]

Even if you think from the outset that your FTCA claims are stronger than the Bivens claims, or have greater recovery potential because they are claims against the government as opposed to individuals, it may be beneficial to keep the Bivens claims during discovery so that the named defendants remain parties to the action.

This may facilitate discovery and encourage settlement.

Settlement

Public settlements can provide useful information.

The great thing about FTCA cases is that the settlements are public, which gives attorneys access to what would otherwise be confidential information.[16]

Every year, the government publishes congressional reports that list amounts it has paid to settle FTCA suits, among other cases.[17]

Although the reports do not contain the case name, they do contain the settlement amount, the type of claim — including the federal statute it is brought under — and the name of the plaintiff's counsel.

Not only can you use the case type and plaintiff's counsel to locate the case and review the docket — i.e., look it up in PACER — but you can contact counsel who obtained high-dollar settlements to ask them how they obtained those settlements.

In our experience, the settlement outcomes were somewhat predictable. The cases involving the youngest, healthiest individuals tended to have the greatest recovery potential, while the cases involving older, sicker individuals tended to have lower recovery potential.

There may be limits to recovery.

One other thing to consider is whether there are limits to your client's recovery. As noted above, punitive damages are prohibited in an FTCA case, but allowed in a Bivens case.

When bringing a wrongful death claim, although the umbrella of the FTCA applies and the claim is filed in federal court, the local jurisdiction's law regarding wrongful death applies.

This means that you should also look at local limits on recovery. In North Carolina, for example, an approximately $500,000 limit may apply to noneconomic damages.

Although North Carolina's wrongful death statute does not, on its face, contain that $500,000 limit, noneconomic damages for medical malpractice resulting from ordinary negligence are capped at $500,000.[18]

Costs are also something you should consider at the outset. The costs of retaining experts are likely to be significant in a wrongful death case. You may find that you need multiple experts, including various medical experts and a damages expert.

Depending on how far the case advances in the litigation, your client may have to pay for reports, depositions and even testimony. Be sure to prepare your client for hefty expert costs, possibly even six figures.

Be aware of which entity has settlement authority.

Before going into settlement discussions with the government, it is important to be aware of what authority each office has to settle your case.

The federal agency typically has authority up to the statutory settlement limit — $25,000 — before needing further approval.[19]

Once in litigation, the local U.S. attorney's office will likely have another threshold limit that they can settle up to before requiring approval from the main office of the U.S. Department of Justice in Washington, D.C. This can help set your and your client's expectations about settlement.

Conclusion

The insights and tips shared in this article are meant to help other attorneys pursue these types of cases.

These are important cases for lawyers to take on because they ensure families who have lost loved ones in BOP custody have access to justice, but they can also be challenging. These challenges can be tricky to navigate, but they are not insurmountable.

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Amy E. Richardson and Lauren E. Snyder are partners, and Owen Smith is an associate, at HWG LLP.

Disclosure: The authors were members of the legal team that represented the Estate of Daniel D. Coddington in Coddington v. U.S.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Tom Jackman, Daughter of nuclear physicist who died by suicide in Va. Jail sues government, Washington Post (Feb. 25, 2023), https://www.washingtonpost.com/dc-md-va/2023/02/25/nuclear-physicist-christopher-lapp-suicide-lawsuit/.

[2] See, e.g., Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241 and Class Action Complaint for Injunctive and Declaratory Relief, Hallinan v. Scarantino , 466 F. Supp. 3d 587 (E.D.N.C. 2020) (No. 5:20-HC-2088-FL) (The ACLU filed suit in which it described shocking conditions at Butner, which included minimal sanitation, limited access to personal hygiene, and even limited access to medical care despite Butner serving as a federal medical center).

[3] E. Ann Carson, Mortality in State and Federal Prisons, 2001–2019 – Statistical Tables, Bureau of Just. Stats. 1 (Dec. 2021), https://bjs.ojp.gov/content/pub/pdf/msfp0119st.pdf (2019 is the last year mortality statistics for state and federal prisons were published by the Bureau of Justice Statistics).

[4] Connor Brooks & Sean E. Goodison, Federal Deaths in Custody and During Arrest, 2020 – Statistical Tables, Bureau of Just. Stats. 1 (July 2022), https://bjs.ojp.gov/content/pub/pdf/fdcda20st.pdf.

[5] Id.

[6] Id.

[7] Coddington v. United States, 5:21-ct-3020-BO (E.D.N.C. Jan. 15, 2021).

[8] 28 U.S.C. § 1346(b)(1).

[9] 28 U.S.C 2675(b). 

[10] Although limits to recovery, such as state statutory limits, might apply to your case consider listing all bases for damages regardless of limitations in your notice of claim. Setting a ceiling in this way affords flexibility for relief as your case analysis progresses.

[11] N.C. Gen. Stat. § 28A-18-2.

[12] Program Statement, BOP 4 (Aug. 1, 2003), https://www.bop.gov/policy/progstat/1320_006.pdf.

[13] 28 U.S.C. § 2675.

[14] Id.

[15] Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388 (1971).  With constitutional claims, though, you will need to critically examine what claims to bring because while you can bring FTCA and Bivens claims together, the FTCA's judgment bar provides that a judgment on the FTCA claim will bar recovery against the individuals. What this means is that a judgment (favorable or unfavorable) on an FTCA claim will likely bar a later recovery on a Bivens claim, and an initial favorable judgment on a Bivens claim, depending on your court, may be wiped out by a later unfavorable judgment on your FTCA claim. It is worth noting that a Bivens suit allows for punitive damages and may be decided by a jury, whereas an FTCA case does not allow for juries or punitive damages. See 28 U.S.C. §§ 2402, 2674.

[16] 28 U.S.C. § 2673. 

[17] The reports can be found here: https://fiscaldata.treasury.gov/datasets/judgment-fund-report-to-congress/judgment-fund-annual-report-to-congress. 

[18] See N.C. Gen. Stat. § 90-21.19 (2015). That limit applies unless the plaintiff shows the defendant proximately caused the decedent's death while acting with a reckless disregard for his rights.  

[19] Id. § 2672.