A prisoner filed a pro se civil rights complaint, alleging that when he was incarcerated at the Federal Medical Center, prison personnel were negligent in handling smoking within his housing unit.  There was a smoking policy limiting smoking to designated areas only but, according to Reed, inmates ignored the policyt and smoked throughout the building.  Reed alleges that he suffered difficulty in breathing,, developed asthma and had other respiratory problems.  He brought this suit seeking money damages from Bureau of Prison (BOP) officials.  The Defendant argued that because the BOP personnel’s actions were discretionary, they fall under an exception to the waiver of immunity contained in the Federal Tort Claims Act (FTCA). The Court ruled that the challenged governmental action is the product of “judgment or choice,” thus satisfying the first prong of the Berkovitz-Gaubert test, to see if an action falls under the FTCA’s discretionary function exception to the government’s assenting to waive sovereign immunity.   The Court also ruled that the governmental action here “exemplifies the type of case Congress must have had in mind when it enacted the discretionary function exception.”  Thus, the Court dismissed the lawsuit with prejudice for lack of subject matter jurisdiction.

2006 U.S. Dist. LEXIS 90547 (U.S.D.C. E.D. Ky.).