Full opinion text
MEMORANDUM OF DECISION AND ORDER COSBEY, United States Magistrate Judge. I. INTRODUCTION This matter is before the Court on a series of motions filed by each of the Defendants and this Memorandum of Decision and Order will address each. Defendants, Prison Fellowship Ministries, (“PPM”) and Ken Jackson, (“Jackson”) filed a Motion For Summary Judgment on November 18, 1993. Plaintiffs, Adela Bailor (“Bailor”) and Darryl Bailor filed a response on January 25,1994. PFM and Jackson filed a reply brief on February 8, 1994. On December 23,1993, the Defendant, Salvation Army, filed a motion for summary judgment. Plaintiffs’ response was filed on February 8, 1994. The Salvation Army’s reply was filed on March 1, 1994. On January 21, 1994, the United States filed a motion to dismiss for lack of subject matter jurisdiction and improper venue. Plaintiffs filed a response on March 4, 1994, and the United States filed a reply on April 4, 1994. Plaintiffs filed a sur-reply on May 19, 1994. For the reasons stated below, all of the foregoing motions will be GRANTED. The respective requests for oral argument are DENIED because they do not comply with N.D.Ind.L.R. 7.5(a), and because oral argument would not be helpful in any event. II. FACTUAL AND PROCEDURAL HISTORY This suit arises out the brutal rape and beating of Adela T. Bailor (“Bailor”) by William T. Holly (“Holly”) on May 9, 1991. While the Court will ultimately proceed to a discussion of the facts, an initial identification of the parties is necessary. A. THE PARTIES At the time of the attack Bailor was an administrative assistant at PFM’s Fort Wayne office having recently commenced her employment there in February, 1991. She, and her husband, Plaintiff Darryl Bailor, were then residents of Fort Wayne, but by the time of the filing of the complaint they had relocated to Colorado Springs, Colorado. (Plaintiffs Amended Complaint, ¶ 5). Defendant, the Salvation Army is a not-for-profit, Illinois corporation, with its principal place of business in Chicago, Illinois. The Salvation Army operates a Chicago residential facility or “halfway house” for criminal offenders (“Salvation Army Facility”). Pursuant to a contract with the Federal Bureau of Prisons (“the BOP”), the Salvation Army Facility houses federal offenders. The performance of this contract, indeed all private halfway house contracts, is governed by a “Statement of Work” (“SOW”) promulgated by the BOP. PFM is a Washington, D.C. corporation with its principal place of business located in the District of Columbia. PFM provides services and assistance to prison inmates and other criminal offenders at various locations throughout the United States and maintains an office in Fort Wayne, Indiana. In 1991, Jackson was the Indiana State Director of PFM and worked out of the Fort Wayne Office. He is currently a PFM regional director. The BOP is the United States federal agency charged with the management and regulation of all federal penal and correctional institutions; it also has safekeeping, care and subsistence responsibilities for those incarcerated persons charged with, or convicted of offenses against the United States. 28 C.F.R. § 0.95 (July 1,1993). The BOP maintains a secure facility for housing federal inmates in Chicago, Illinois known as the Metropolitan Correctional Center (“MCC”). Holly is not a party to this action. Rather, he was a federal inmate at the MCC in the custody of the United States Attorney General and the BOP. In 1991 he transferred from the MCC to the Salvation Army Facility from which he later escaped, just a few days prior to the attack on Bailor. B. FACTS Bailor’s tragic story starts on August 26, 1975, when Holly, and two other men, committed an armed bank robbery in South Carolina. Holly and one of his co-defendants apparently vaulted over the cashier’s counter, grabbed the money and fled. (U.S. reply bf. exhibit F, Unit Team CCC placement recom.). During the course of the robbery they were armed and threatened the lives of the bank employees. Id. Holly was ultimately convicted on bank robbery in the District of South Carolina, and on February 2,1976 he was sentenced to eighteen years. (Dupont Declaration, p. 2 ¶ 3). He was placed at the U.S. Penitentiary in Terre Haute, Indiana so that he could receive drug treatment. (U.S. reply bf. exhibit 9, pre-sentence report). As with so many others, this was not Holly’s first brush with the law, as he had frequently been in the State of Virginia’s criminal justice system. Beginning in 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 and uttering. (U.S. reply bf. exhibit 9, pre-sentence report). In fact, Holly was on parole from this last conviction when he committed the bank robbery. Id. Holly’s juvenile record discloses that he was charged with assault for threatening his mother with a razor blade (later dismissed); larceny (for which he received a suspended sentence); and possession of a concealed weapon (also dismissed). . Id. Holly was also the recipient of psychiatric care as a youth. When he was 14 years of age (1961) the Richmond Juvenile Court described Holly as being in “state of anxiety and extreme tension” due to his “awareness to [sic] very hostile almost sadistic impulses.” Id. His condition was later described by the Virginia Medical College as a “nervous brain.” At 15 years old (1962) he was diagnosed by a Virginia state hospital as having a “transient situational personality disorder and adjustment reaction of [sic] adolescence.” Id. Holly’s adult record also discloses 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. (Id. and FBI record information) Following serving his sentence for bank robbery, Holly was released on federal parole in 1982 in the state of Virginia. Holly violated that parole in 1988, and in 1985 his parole was revoked and he was returned to the federal penitentiary at Terre Haute. While the underlying facts of the parole violation are not revealed in the record, Holly was apparently initially charged with attempted robbery, brandishing a pistol and carrying a concealed weapon. Id. However, as part of an apparent plea agreement, the brandishing charge was dropped and the attempted robbery charge was reduced to petty larceny. Id. In October of 1988, Holly was released from the Terre Haute prison and placed into a work release program in Fort Wayne, Indiana. Just prior to this placement, the prison chaplain contacted Jackson at PFM’s Fort Wayne office to inform him that Holly would soon be in the work release program. (Jackson dep., p. 15). The Chaplain thought that Holly would be eligible for PFM assistance while in Fort Wayne. Id. The decision whether to provide services to Holly was entirely within Jackson’s discretion. (Id. at 24; Roberts Dep., p. 33). In making that determination, Jackson considered the nature of Holly’s crime, whether he held genuine religious convictions, and whether there was any known violence in his background. (Jackson Dep., p. 22-24). Jackson did not conduct an independent inquiry to obtain this information; rather, he relied solely on the information provided to him by the prison chaplain. (Jackson dep. p. 18-19). Jackson made no inquiry of Holly about his prior convictions or criminal history. Id. Based on the information provided, Jackson accepted Holly as a client of PFM and Holly soon began receiving assistance. (Id. at 27). With Jackson’s help, Holly soon moved out of the work release center and into his own apartment. Jackson also helped Holly find furniture, a car, and a job in the same building as PFM’s offices. (Id. at 31, 65). In addition, PFM often provided Holly with financial assistance. During his stay in Fort Wayne, Holly routinely made unannounced visits to PFM’s offices — as often as two or three times per week. (Id. at 28). During those visits he would frequently make unwelcome and inappropriately flirtatious comments, or gestures, towards Sara Roberts (“Roberts”), an employee at PFM. (Roberts dep., p. 20-26). Roberts complained to Jackson and David Clendenen (“Clendenen”), another PFM employee, but nothing was ever done. Id. In fact, there were no rules which prohibited offenders from coming to PFM’s offices unannounced; nor were any security measures employed which prevented offenders from entering the offices or interacting with the staff. Id. In December of 1988, just a few months after his placement in Fort Wayne, Holly violated the conditions of his release when he left his Fort Wayne apartment and went to Indianapolis for a weekend. (U.S. reply bf. exhibit 9, pre-sentence report). According to Holly’s self-report, he went on a “drug binge,” passed out, and woke up in Indianapolis. Id. He then apparently called Jackson seeking a return to Fort Wayne. (Roberts’ dep., p. 53-4). Before that could be accomplished, however, the Federal Marshals were notified and Holly was arrested on December 12,1988, on an escape charge. (Dupont Declaration, p. 3). Holly then remained in custody until March 16, 1990 when he received a sentence of 24 months for escape. Id. The BOP sent him to the MCC. During his incarceration Holly continued to correspond with Roberts, and Vicky Ash, another PFM employee. The correspondence (both by letter and phone) was largely romantic in nature. (Roberts dep., p. 43; Ash dep., p. 17-20). Moreover, Holly apparently told them that he intended to return to Fort Wayne and receive additional PFM services after his release. Id. After some time at the MCC, Holly completed an application to be transferred to a community corrections center (“CCC”). A CCC is a halfway house where federal (and frequently, state) inmates, approaching then-release date, can finish out the last six months of then- sentence. The facility is designed to provide pre-release programs so offenders have an easier transition from prison to society. The criteria for transfer into a CCC is governed by administrative regulations, called “program statements,” promulgated by the BOP. Holly’s application was first reviewed by a BOP unit team charged with making initial transfer determinations. On December 8, 1990, the unit team recommended that Holly be transferred to the Salvation Army facility. (U.S. reply bf., exhibit F, CTC referral form). This referral was reviewed by Dennis Silverberg, (“Silverberg”), the associate (and then-acting) Warden of the MCC. (Silver-berg Declaration, ¶ 3). Silverberg received Holly’s application which was accompanied by the unit team’s referral memorandum. The unit team’s only expressed concern over Holly’s placement was his prior conviction for bank robbery. Also attached was Holly’s file, which included his sentence monitoring reports, progress reports, FBI record sheet, and the U.S. probation department’s pre-sentence report prepared in connection with Holly’s escape charge. (U.S. reply bf., exhibit F; Silverberg declaration, ¶ 3). Silverberg reviewed the referral application and accompanying documents, and then conferred with the unit team. He then learned that Warden Henry had already discussed Holly’s placement with them, had personally reviewed all the records, and had expressed his intent to approve the transfer. (Silverberg declaration, ¶ 3). Based on all of the foregoing information Silverberg initially approved the unit memorandum and referral. Id. The entire referral packet was then forwarded to the Salvation Army Facility for its review. The packet was reviewed by Paul Hall, the primary intake officer. (Rowland dep., p. 6, Hall dep., p. 5). The Salvation Army may reject an inmate transfer made by the BOP. (Rowland dep., p. 21, Hall dep., p. 16). However, any decision to reject an inmate must be based on present information pertaining to institutional adjustment. (Hall dep., p. 16). If the Salvation Army Facility rejects a proposed transfer, Hall must write a letter establishing that the person is not an acceptable risk based on institutional information. Id. As a result, rejections are rare. {Id. at 17). In fact, the only rejected individuals are those with a history of “excessive violence,” (Rowland dep., p. 22), child molesters, rapists, or arsonists with psychological problems. (Hall dep., p. 16-7). With regal'd to Holly, Hall does not specifically recall his review, except that the 1966 rape charge listed on Holly’s record may have been a cause for concern. (Hall dep., p. 19-24). He remembers only that he requested additional information from the BOP, but that none was available. Id. Other than the rape charge, Holly’s history was deemed unremarkable. Id. Hall found Holly acceptable and approved his transfer. Id. Ultimately, final approval for the transfer was given by Henry in a January 17, 1991, transfer order. (U.S. reply bf., exhibit F, furlough application and approval record). On January 21, 1991, Holly was transferred to the Salvation Army Facility. (Dupont Declaration, ¶ 10). Since Holly was placed for the six (6) month maximum, his projected release date with good time credits was June 8, 1991. Generally, as a CCC resident, Holly was free to come and go as he pleased so long as he signed in and out. However, he had to be employed, was to return to the facility by 11:00 p.m. each night, and he was to participate in various counseling programs. He was also required to submit to mandatory, random drug-testing at least four times a month. (SOW. ch. 6, p. 27). Pursuant to this mandate, Holly provided a urine sample on April 21, 1991. (Rowland dep., p. 68). On May 6, 1991, David Brantford (“Brantford”) Holly’s resident advisor at the Salvation Army Facility, received a lab report showing that Holly’s sample tested positive for cocaine. Once notified of such a violation, Brantford and Hall had two options. On the one hand, they could draft an incident report, serve Holly with a copy, and proceed to a disciplinary hearing. (SOW p. 32). In such a ease, Holly would remain at the facility until final resolution of the disciplinary proceedings. Id. On the other hand, if they believed Holly presented a risk of harm to himself or other residents, or was a potential escapee, they could contact the U.S. Marshal directly and seek to have Holly detained before any notice or hearing. Id. Brantford and Hall determined that immediate detention of Holly was unnecessary. (Brantford, dep. p. 25-28; Hall dep. p. 31). So, at 2:00 on May 6,1991, Brantford drafted an incident report. (Incident report; Rowland Dep., p. 76). Hall reviewed the report and placed it in a basket to be served upon Holly. When Holly returned from work that evening, Carolyn Townsend, an employee, served notice of the disciplinary violation on him. (Townsend dep., p. 16). Approximately eight minutes later, Holly appeared at the door to the Salvation Army Facility with his luggage. (Garrett dep., p. 27). When the shift manager at the front desk asked where he was going, Holly replied “I’m out of here. I’m not going back to no MCC.” Id. As Holly was leaving, the shift manager briefly informed him of the consequences of his action, but he left anyway. Id. The BOP was immediately notified of Holly’s escape. (Rowland Aff., p. 6-7, ¶ 22 and Exh. H). That notice was received by Denise Hilliard, the Community Corrections Manager (“CCM”) (the BOP employee that serves as liaison to the Salvation Army Facility), who in turn notified the Federal Marshal’s for the Northern District of Illinois of Holly’s escape the next morning. (Wilson Declaration, #2, ¶2). At about the same time, she also sent an electronic mail notice to the BOP’s North Central Regional Director, Calvin Edwards. (Wilson Declaration, # 2, ¶ 3). The e-mail message was also routed to several other individuals within the BOP’s administration. (Wilson Declaration, # 2, ¶¶ 10, 11). Two days after his escape, on May 8,1991, Holly called Jackson at home and informed him that he had been released, would be in Fort Wayne the following day, and would like PFM’s assistance. (Jackson dep. pp. 48-9). Jackson told Holly to call him at home when he got into town. (Id. at p. 49-52). Jackson never verified Holly’s claimed “release.” Id. On the morning of May 9, 1991, Jackson came into PFM’s offices, picked up some papers and left for a meeting in Indianapolis. (Bailor dep., p. 19; Bailor Affidavit, ¶ 7). Bailor had already arrived at the office and Jackson told her he would return later in the afternoon, but made no mention of his contact with Holly. (Bailor dep., p. 87 Bailor Affidavit, ¶¶ 6, 7). Later that morning, Holly called PFM seeking assistance. (Bailor dep., p. 18, 21). He spoke with Bailor, who told him that Jackson was not there, but that he would be back later in the afternoon. (Id. at 22). She suggested that Holly go to a local rescue mission and church for food and shelter. (Id. at 23). Apparently unhappy with these options, Holly became hostile over the phone. (Id. at 25). Later that morning, Holly called PFM again. (Id. at 24-25) Once more he became angry and hostile. Id. At that point, Bailor turned the phone over to Clendenen, who provided Holly with the same information Bailor had. (Id. at 26). Clendenen then left for Indianapolis to join Jackson. Id. This left Bailor alone in the office. Later in the afternoon, Bailor, still alone, received a phone call from the rescue mission. (Id. at 29). A woman informed Bailor that Holly was at the Mission demanding money and a bus ticket and that PFM had promised him both, but had failed to provide either. Holly was apparently now soliciting the same things from the Rescue Mission. (Id. at 29). Bailor told the woman that Jackson was gone and would not be back until later that afternoon. The caller told Bailor she would see what she could do to help Holly. (Id. at 30). Then, sometime later, Holly arrived at PFM’s offices. He told Bailor that Jackson had told him the night before that he could stop by and pick up cash and a bus ticket. (Bailor Affidavit, ¶ 9). Bailor reiterated that Jackson would not be returning to the office for several hours and invited him to wait in the lobby. (Bailor dep., pp. 34-39). Holly waited for approximately 45 minutes but became increasingly agitated and hostile. Id. Finally, Holly locked the office door and brutally raped and beat Bailor. (Id. at 36-39). Id. C. PROCEDURAL HISTORY On May 6, 1993, Bailor and her husband filed a complaint for common law negligence against the Salvation Army. Bailor also alleged that PFM and Jackson had committed a common law intentional tort and that she also had a claim pursuant to 42 U.S.C. 1983. Later, on November 24,1993, Bailor filed her First Amended Complaint, which added a claim against the United States as an indispensable party (for the actions of the BOP) pursuant to the Federal Tort Claims Act. 28 U.S.C. 2671 et seq. and Fed.R.Civ.P. 19. Defendants, PFM, Jackson, and the Salvation Army have all filed motions for summary judgment as to each of Bailor’s claims. The United States has moved for dismissal of all claims against the government for lack of subject matter jurisdiction and improper venue. All of these motions will be addressed seriatim, however, a review of summary judgment principles is first required. III. STANDARD OF REVIEW ON SUMMARY JUDGMENT Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). However, Rule 56(c) is not a requirement that the moving party negate his opponent’s claim. Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir.1990). Rule 56(e) mandates the entry of summary judgment, after adequate time for discovery, against a party “who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and in which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The standard for granting summary judgment mirrors the directed verdict standard under Rule 50(a), which requires the court to grant a directed verdict where there can be but one reasonable conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). A scintilla of evidence in support of the non-moving party’s position is not sufficient to successfully oppose summary judgment; “there must be evidence on which the jury could reasonably find for the plaintiff.” Id. at 252, 106 S.Ct. at 2512; In Re Matter of Wildman, 859 F.2d 553, 557 (7th Cir.1988); Klein v. Ryan, 847 F.2d 368, 374 (7th Cir.1988); Valentine v. Joliet Township High School District No. 204, 802 F.2d 981, 986 (7th Cir.1986). No genuine issue for trial exists “where the record as a whole could not lead a rational trier of fact to find for the nonmoving party.” Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 322 (7th Cir.1992) (quoting Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)). Initially, Rule 56 requires the moving party to inform the court of the basis for the motion, and to identify those portions of the “pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, which demonstrate the absence of a genuine issue of material fact,” Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. The non-moving party may oppose the motion with any of the evidentiary materials listed in Rule 56(c), but reliance on the pleadings alone is not sufficient to withstand summary judgment. Goka v. Bobbitt, 862 F.2d 646, 649 (7th Cir.1988); Guenin v. Sendra Corp., 700 F.Supp. 973, 974 (N.D.Ind.1988); Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). In ruling-on a summary judgment motion the court accepts as true the non-moving party’s evidence, draws all legitimate inferences in favor of the non-moving party, and does not weigh the evidence or the credibility of witnesses. Anderson, 477 U.S. at 249-251, 106 S.Ct. at 2511. However, “[i]t is a gratuitous cruelty to parties and their witnesses to put them through the emotional ordeal of a trial when the outcome is foreordained” and in such cases summary judgment is appropriate. Mason v. Continental Illinois Nat’l Bank, 704 F.2d 361, 367 (7th Cir.1983). Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. Id. 477 U.S. at 248, 106 S.Ct. at 2510. Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute. Id. The issue of fact must be genuine. Fed.R.Civ.P. 56(c), (e). To establish a genuine issue of fact, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356; First National Bank of Cicero v. Lewco Securities Corp., 860 F.2d 1407, 1411 (7th Cir.1988). The non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Id. A summary judgment determination is essentially an inquiry as to “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-252, 106 S.Ct. at 2512. IV. DISCUSSION A.PFM and Jackson Count II of Bailor’s complaint alleges that PFM and Jackson are liable because they committed an intentional tort. PFM and Jackson have moved for summary judgment on this common law claim by arguing that it is barred by the exclusivity provision of Indiana’s Worker’s Compensation Act. In order to address this issue, the Court will discuss PFM and Jackson separately. 1. PFM PFM argues that Bailor’s common law tort action is barred by the exclusivity provision of the Indiana Worker’s Compensation Act, I.C. 22-3-2-6 et. seq., which provides: The rights and remedies granted to an employee subject to IC 22-3-2 through IC 22-3-6 on account of personal injury or death by accident shall exclude all other rights and remedies available under IC 16-7-3.6. I.C. 22-3-2-6. This provision has been construed as excluding all rights and remedies of an employee against his employer for personal injury or death if the following three statutory jurisdictional prerequisites are met: A. Personal injury or death by accident. B. Personal injury or death arising out of employment. C. Personal injury or death arising in the course of employment. Evans v. Yankeetown Dock Corp. 491 N.E.2d 969, 973 (Ind.1986); see also, Gordon v. Chrysler Motor Corp., 585 N.E.2d 1362, 1363 (Ind.App.1992); Cox v. American Aggregates Corp., 580 N.E.2d 679, 683 (Ind.App.1991); Arrow Uniform Rental, Inc. v. Suter, 545 N.E.2d 832, 833 (Ind.App.1989). As will be seen, from the Court’s perspective, Bailor falls within all three prerequisites and is thus foreclosed from pursuing a common law remedy against her former employer. Under Indiana law, personal injury occurs “by accident” for purposes of the Worker’s Compensation Act when the sufferer does not intend, or expect that an injury will result from what he or she was doing. Evans, 491 N.E.2d at 974 (quoting Inland Steel Co. v. Almodovar, 172 Ind.App. 556, 361 N.E.2d 181, 187 (1977); Gordon, 585 N.E.2d at 1364; Arrow Uniform Rental, 545 N.E.2d at 833. Clearly, on May 9, 1991, Bailor never expected, as she arrived or remained at work, that she would be brutally raped and beaten by Holly or anyone else. Thus, Bail- or’s injuries were “by accident.” Bailor’s injuries also arose out of her employment. An accident arises out of employment when there exists some causal nexus between the injury complained of and the duties or services performed by the injured employee. A causal relationship is established when the accident arises out of a risk which a reasonably prudent person might comprehend as incidental to the employment at that time of entering into it, or, when the facts show an incidental connection between the conditions under which the employee works and the injury. Fields v. Cummins Emp. Fed. Credit Union, 540 N.E.2d 631, 635 (Ind.App.1989); see also, Gordon, 585 N.E.2d at 1365; Arrow Uniform Rental, 545 N.E.2d at 833. PFM’s sole purpose was to provide services for individuals who had been released from prison. Thus, a large part of Bailor’s responsibilities focused on dealing directly with ex-convicts, including some with obviously dangerous propensities. A reasonably prudent person could thus easily recognize the incidental risk of attack by, or confrontation with, the volatile clients who frequented PFM. In fact, Holly had been a recipient of PFM services in the past, and on the afternoon of the attack was there for more. Up until the attack, Bailor had dealt with Holly solely in her capacity as an employee of PFM, and as Jackson’s assistant. Thus, Bailor’s contacts with Holly were clearly employment related. These “facts show an incidental connection between the conditions under which [Bailor] work[ed] and the injury,” she suffered. Fields, 540 N.E.2d at 635. Therefore, Holly’s attack “arose out of’ Bailor’s employment as a matter of law. See generally, Evans, 491 N.E.2d at 975 (Assault by insane co-employee arose out of plaintiffs employment); Nelson v. Denkins, 598 N.E.2d 558, 561 (Ind.App.1992) (Assault by supervisor arose out plaintiffs employment); Fields, 540 N.E.2d at 635 (Sexual harassment by co-worker arose out of plaintiffs employment). Finally, Bailor’s injuries arose during the course of her employment. “An injury occurs ‘in the course’ of employment if the time, place and circumstances indicate that it was suffered while the employee was furthering the ends of the employer.” Crowe v. Blum, 9 F.3d 32, 34 (7th Cir.1993); see also, Arrow Uniform Rental, 545 N.E.2d at 833. The attack on Bailor occurred during regular work hours, on the work premises, and while she was assisting a client. As a result, her injuries occurred “in the course” of her employment. Crowe, 9 F.3d at 34; Arrow Uniform Rental, 545 N.E.2d at 833. Therefore, having met all the jurisdictional requirements, Bailor’s exclusive remedy under Indiana law was pursuant to the Worker’s Compensation Act. Bailor contends, however, that she is free to seek common law damages because her employer intentionally injured her—a recognized exception to the exclusivity doctrine. But, while Indiana has adopted this exception, it has also applied a stringent, specific intent standard to it. National Can Corp. v. Jovanovich, 503 N.E.2d 1224, 1233 & n. 14 (Ind.App.1987). Under that standard, the employee as proponent of the exception, has the burden to show that the employer had an actual intent to cause the complained of harm. Id; Gordon, 585 N.E.2d 1362. In order to meet her burden, Bailor claims that PFM “created a working environment ... in which she was substantially certain to incur the physical attack by Holly.” (Pi. bf. in oppos. to sum. judg., p. 18). In support of this theory Bailor points to several specific facts: 1) [PFM] and Jackson were not concerned about the criminal backgrounds and violent tendencies of the criminals who came to the [PFM] office, including Holly. 2) Jackson was not concerned that there were absolutely no safety procedures for the staff of the [PFM] office. 3) Jackson knew that Holly had expressed a romantic interest and displayed suggestive behavior toward Roberts. 4) Jackson’knew that Holly had left his parole without permission, that Holly was a drug abuser, and that Holly had expressed a desire to return to Fort Wayne for help from [PFM]. 5) Jackson knew that after Holly was apprehended [in 1988] he had threatened Roberts and had, once again, expressed a desire to return to the [PFM] office. 6) Jackson knew that Holly was coming to the Fort Wayne [PFM] office on May 9, 1991 for assistance. 7) Jackson knew that [Bailor] would be alone in the [PFM] office, but he did not tell [Bailor] about Holly. (Plaintiffs memo, in opp. to summ. judg., p. 19-20), Bailor contends that the aforementioned acts or omissions show a substantial certainty on the part of PFM that Bailor would be attacked by Holly. At the very most, these allegations support an inference of reckless or wanton behavior by Bailor’s employer, but they reveal no course of action taken with the specific intent to cause Holly’s attack, or with any substantial certainty that an attack would occur. Blade v. Anaconda Aluminum Co., Inc., 452 N.E.2d 1036, 1038 (Ind.App.1983). The Blade case is instructive. There, the Plaintiff was killed in a furnace explosion while working at Defendant’s factory. Id. at 1037. Plaintiff (in an effort to side-step the exclusivity provision of Indiana’s Worker’s Compensation Act) alleged that the explosion and death resulted from the employer’s intentional conduct because it had created the dangerous condition knowing with substantial certainty that an explosion and death would occur. Id. In support of that claim, the plaintiff alleged that the employer intentionally disconnected several safety measures, refused to shut down what had become a malfunctioning and dangerous furnace, neglected to replace broken parts (opting instead for makeshift repairs) and then ordered that the furnace run in an improper and dangerous manner. Id. The trial court dismissed the case for failure to state a claim and the Appellate Court affirmed, reasoning: “[although we may infer from Blade’s complaint that [the employer] intentionally pursued a course of conduct which jeopardized its worker’s safety, no facts were alleged which support an inference that [the employer] intentionally injured Mr. Blade.” Id. at 1038. As the court observed: The mere knowledge and appreciation of a risk, short of substantial certainty, is not the equivalent of intent. The defendant who acts in the belief or consciousness that he is causing an appreciable risk of harm to another may be negligent, and if the risk is great his conduct may be characterized as reckless or wanton, but is not classed as an intentional wrong. In such cases the distinction between intent and negligence is obviously a matter of degree. Apparently the line has been drawn by the courts at the point where the known danger ceases to be only a foreseeable risk which a reasonable man would avoid, and becomes a certainty. Id. (quoting Peossek, The Law of Torts, p. 32 (4th ed. 1971)); see also, National Can, 503 N.E.2d at 1233. As in Blade, the facts presented in this case could lead to an inference that PFM knew and appreciated the potential risk of a criminal assault on one of its employees, but there is no suggestion that PFM intended that Bailor be attacked by Holly, or that its appreciation of that risk rose to any degree of certitude. Therefore, Bailor cannot avail herself of this exception to Indiana’s Worker’s Compensation Act. Moreover, even if Bailor had raised a genuine issue of material fact regarding the intentional conduct of her employer, her present common law action would still be barred because she has already received considerable payments under Worker’s Compensation. (Bailor dep., p. 59-61; Atif. of Deborah McDowell). That is, to the extent Bailor had the option of suing for tort damages, or filing for worker’s compensation, or both, she still can collect only one remedy. Lackey v. Duhadway Co., Inc. 560 N.E.2d 671, 673 (Ind.App.1990) (citing Lewis v. Lockard, 498 N.E.2d 1024). Once Bailor collected her worker’s compensation payments she relinquished her option to collect tort damages against any party liable for her worker’s compensation award. Id. Accordingly, summary judgment must be granted on Bailor’s claim against PFM. 2. Jackson Bailor argues that even if her action against PFM is barred she may still maintain her action against Jackson, who allegedly is not protected under the statute. This, however misconstrues the law. IC 22-3-2-13 provides: Whenever an injury or death, for which compensation is payable under chapters 2 thorough 6 of this article shall have been sustained under circumstances creating in some other person than the employer and not in the same employ a legal liability to pay damages in respect thereto, the injured employee, or his dependents, in the case of death, may commence legal proceedings against the other person to recover damages notwithstanding the employer’s or the employer’s compensation insurance carrier’s payment of or liability to pay compensation under chapters 2 through 6 of this article. Id. (emphasis added). The language “not in the same employ” has come to mean that the protection of the exclusivity provision of the Worker’s Compensation Act extends to coworkers. “This is not to say that co-workers are, by virtue of the Worker’s Compensation Act, necessarily immune from suit in all instances.” Crowe v. Blum, 9 F.3d 32, 35 (7th Cir.1993). Indeed, the phrase has been read as requiring more than simply having a common employer. Thiellen v. Graves, 530 N.E.2d 765, 767 (Ind.App.1988). [A] co-employee is immune under the ‘same employ’ language if the co-employee is acting in the course of his employment at the time of the employee’s injury.... and the act causing the injury ... arise[s] out of the co-employee’s employment. Id. Conduct arises out of employment where the co-employee acts for the benefit of the employer. Fields v. Cummins Emp. Fed. Credit Union, 540 N.E.2d 631, 638 (Ind.App.1989). The allegations made against Jackson are premised upon the manner in which he addressed employee concerns regarding office safety, and in the way he handled PFM’s assistance to Holly, especially on the day of the attack. Thus, what Bailor is essentially charging is that Jackson failed to adequately perform his job duties. Indeed, it is only through Jackson’s position at PFM that he had any obligation to perform the acts about which Bailor complains. Bailor’s argument suffers from a fatal incongruity. She cannot claim that Jackson, as a result of his position at PFM, had an employment duty to provide her with a safe place to work, yet at the same time argue that any failure to do so was outside his employment for purposes of Worker’s Compensation. See generally, Evans, 491 N.E.2d at 975. To the contrary, the alleged acts or omissions of Jackson were clearly work related and arose out of his employment as a matter of law. Accordingly, Jackson is immune from common-law liability by virtue of Indiana’s Worker’s Compensation Act. 3. The Loss of Consortium Claim Darryl Bailor has filed a loss of consortium claim against both PFM and Jackson. A claim of loss of consortium is derivative in nature.... [It] derives it viability from the validity of the claim of the injured spouse_ Where ... the claim of the injured spouse against the alleged tortfea-sor has been abrogated by statute, the right of the other spouse to recover for loss of consortium cannot exist. Nelson v. Denkins, 598 N.E.2d 558 (Ind.App.1992) (quoting Arthur v. Arthur, 156 Ind.App. 405, 296 N.E.2d 912, 913 (1973)). Since Bailor’s claims against PFM and Jackson have failed, Darryl Bailor’s derivative loss of consortium claim also fails. Therefore, summary judgment must be granted to PFM and Jackson on Darryl Bailor’s loss of consortium claim. B. The Salvation Army The Plaintiff has brought a common law negligence claim against the Salvation Army in Count I of her amended complaint by alleging the following: a. The Salvation Army negligently failed to adequately assess the appropriateness of William Holly’s placement at the Salvation Army facility; b. The Salvation Army negligently failed to adequately monitor, supervise and restrict Holly’s activities, such that he escaped from the Salvation Army facility; c. After learning that 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; d. The Salvation Army negligently failed to take reasonable steps to locate and return Holly to the Salvation Army’s facility once Holly had escaped; e. The Salvation Army negligently failed to notify appropriate individuals and/or law enforcement agencies of Holly’s escape from the Salvation Army’s facility; f. The Salvation Army negligently committed other acts and omissions which proximately resulted in Holly’s escape from the Salvation Army’s facility and his subsequent attack on [Bailor]. In short, the current motion before the Court focuses on the Plaintiffs 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. See Defendant’s Memorandum in Opposition, p. 3. However, the Salvation Army’s motion for summary judgment simply argues that they owed no duty to the Plaintiff under Indiana law, or that even if they did, neither 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 Plaintiffs injury. 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. Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind.1991) (citing Miller v. Griesel, 261 Ind. 604, 308 N.E.2d 701, 706 (1974)). Under Indiana law, the existence of a duty is a question of law. Sports, Inc. v. Gilbert, 431 N.E.2d 534 (Ind.App.1982) (citing Neal v. Home Builders, Inc., 232 Ind. 160, 111 N.E.2d 280 (1953)). In Webb, the Indiana Supreme Court identified 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, and (3) public policy concerns.’ ” Fawley v. Martin’s Super Market, Inc., 618 N.E.2d 10 (Ind.App.1993) (citing Webb, 575 N.E.2d at 997-8). See also, J. Tidmaesh, Tort Law: The Languages of Duty, 25 Ind.L.Rev. 1419, 1424, et seq. (1992). These duty factors will each be discussed in turn. 1. Relationship between the parties The general rule is that there “is no duty to protect others against harm from third persons.” W. Page Keeton, et al., PROSSER AND KEETON, On THE LAW OF TORTS § 56 at 385 (5th ed. 1984). “When addressing the duty to control the conduct of others, the courts of Indiana have generally followed the principles set forth in the Restatement (Second) of the Law of Torts.” Cole v. Indiana Dept. of Correction and State of Indiana, 616 N.E.2d 44, 46 (1993). The Restatement recognizes an exception to the general rule of no duty when a special relationship exists between the actor and the third person, which imposes a duty upon the actor to control the third person’s conduct. Id. See also, Restatement (Second) of Torts § 315 (hereafter, “section 315”). Even more particularly, the Restatement (Second) of Torts, section 319 (hereafter “section 319”) speaks directly to the imposition of a duty on those who are in charge of other persons with dangerous propensities. That section provides: One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm. What it means to “take charge of a third person” under section 319 yields no a bright line approach. For example, in Estate of Mathes v. Ireland, 419 N.E.2d 782 (Ind.App.1981) the court was confronted with a situation where an allegedly insane and violent twenty-year old man was residing with his mother and grandparents giving rise to (according to the plaintiff) “a responsibility to supervise [him] and control his activities.” Id. at p. 784. Because the mother and grandparents allegedly failed to control the young man he abducted and killed a woman. The trial court.dismissed the Plaintiffs claim against the mother and grandparents but the Indiana Court of Appeals reversed, holding that dismissal was premature. Citing section 319, the court observed that any duty on the part of the mother and grandparents depended upon the actual assumption of care and control of someone known to be dangerous. Id. That is, “for the duty to exist there must therefore not only be an actual taking charge of the third person, there must also be a knowledge of the likelihood that he will cause bodily harm.” Id. Since the plaintiff in Estate of Mathes had at least pled an actual taking charge of the twenty-year old man the motion to dismiss was denied, even though the court of appeals expressed grave reservations “that any of [the plaintiffs] arguments [would] prove successful.” Id. The Indiana Court of Appeals had an opportunity to consider section 319 again in Sports, Inc. There, an intoxicated driver caused an accident in the parking lot of the defendant’s business and the defendant’s security guards were summoned. However, rather than arresting or detaining the intoxicated driver, they turned him over to his relatives who drove him away in his own truck. Shortly after leaving the parking lot the intoxicated person was driving the truck again and it collided with an automobile driven by the plaintiff. In the Plaintiffs case against the business owner, the question was whether it owed a duty to the motoring public such that it should have detained the intoxicated motorist. Sports, Inc., 431 N.E.2d at 535. In analyzing the question of duty, the Indiana Court of Appeals considered section 319 and determined that it did not apply to the facts of the case. 431 N.E.2d at 536. Indeed, the court distinguished those cases which relied upon section 319 because in almost all such instances the relationships were “continuing, well-established, and, in all but the Mathes case imposed by court order.” See 431 N.E.2d at 536 n. 2. In discussing the right to control third persons generally under the section 315 the Indiana Court of Appeals noted: “[I]n Indiana and elsewhere the courts have shown great reluctance to require an individual to take any action to control a third party when there is no special relationship between them. When a special relationship does exist, the responsibilities it engenders are limited.” Sports, Inc., 431 N.E.2d at 538. As the Court' of Appeals went on to observe, in all cases imposing liability for failure to control the conduct of a third party there must not only be the need for special supervision or protection, but there must also be “the right to intervene or control the actions of a third person.” Id. As the Court of Appeals in Sports, Inc. summarized the point: “[W]e know of no case from any jurisdiction which imposes a duty to control a third person when no right to control exists. The right to control another person’s actions is essential to the imposition of this duty.” Id. In Sports, Inc., the upshot was that summary judgment was appropriate because the defendant had no right to control the intoxicated driver as a matter of law. More nearly to the point, a few courts in other jurisdictions have recognized that under appropriate circumstances, a privately operated halfway house for convicted prisoners may be held liable to a third person for injuries caused by one of those prisoners. Annotation “Liability of private operator of ‘halfway house’ or group home housing convicted prisoners before final release for injury to third person caused by inmate.” 9 A.L.R. 5th 969 § 2(a) (1993). Nonetheless, it is still necessary for the injured party to show that the halfway house had sufficient control over the convict to warrant liability, perhaps through an examination of the halfway house’s contract with the applicable Department of Correction. Id. at section 2(b). Bailor points to two cases that arguably stand for the proposition that a legal duty arose in the Salvation Army under the facts of this case. See, Dudley v. Offender Aid and Restoration of Richmond, Inc., 241 Va. 270, 401 S.E.2d 878 (1991); Doe v. United Social and Mental Health Services, Inc., 670 F.Supp. 1121 (D.Conn.1987). In Dudley, a convicted felon serving a prison sentence was permitted to reside in a privately operated “halfway house” and while living there, left the premises and broke into the residence of a woman whom he then killed. The decedent’s administrator claimed negligence and sued the operator of the halfway house for allegedly failing to exercise reasonable control over the felon. The trial court sustained a demurrer and dismissed the case. Assuming the facts alleged in the complaint to be true, the question on appeal was whether the operator of the “halfway house” had a duty to exercise reasonable care to control the felon so as to prevent him from causing harm to the decedent. In resolving the issue, the Dudley court observed that the felon had a long-standing criminal record, had been denied parole twice, and was not due for mandatory release until 1991. Nonetheless, in 1987 (four-years prior to his possible release) he was placed at the halfway house (a placement designed only for pre-releasees) despite the fact that he met none of the contractual criteria for placement (as set forth in the contract between the Virginia Department of Correction and the halfway house). Moreover, the halfway house residents “were essentially unsupervised” and “security measures were practically non-existent.” Id. at p. 274, 401 S.E.2d 878. The prescribed “sign-out”/“sign-in” system was not enforced. Id. The contract with the Department of Correction also required the halfway house to notify the Department whenever an inmate was absent without leave for more than two hours — a requirement routinely overlooked. Id. at 274, 401 S.E.2d 878. In reversing the earlier dismissal, the Dudley court distinguished prior Virginia eases which had held that a parole officer had not “take[n] charge of’ a parolee within the meaning of section 319 and thus had no duty to persons injured by the parolee under the officer’s supervision. Id. at p. 275-76, 401 S.E.2d 878 (citing Fox v. Custis, 236 Va. 69, 372 S.E.2d 373 (1988)); Marshall v. Win ston, 239 Va. 315, 389 S.E.2d 902 (1990). While acknowledging this prior line of cases, the Virginia Supreme Court viewed the control exercised by the halfway house in Dudley as something different from a parole officer’s statutory duty to merely “supervise and assist” a parolee. For example, in Dudley, the inmate was received by the halfway house while in the custody of the Depai’tment of Correction; thus, the Virginia Supreme Court concluded: “[Ajnyone assuming that custody from the Department necessarily became ‘[o]ne who takes charge’ of [the inmate] ■within the meaning of Restatement section 319.” Id. 241 Va. at p. 276, 401 S.E.2d 878. Moreover, the halfway house had a contractually imposed responsibility “for very close and continuous supervision of [the Department of Correction] inmates.” Id. The Virginia Supreme Court contrasted this with the limited statutory duties imposed upon parole officers (such as in Fox) and noted that the halfway house “was required to maintain stringent security measures and sign-out procedures, and to report to the Department of Correction any unauthorized absence of an inmate in excess of two hours.” Id. Thus, the custodial duties of the halfway house ‘Tar surpassed those of a parole officer and met the criterion of Restatement section 319 for ‘one who takes charge’ of its inmates.” Id. In the Doe case, an obviously dangerous inmate was paroled to a halfway house; less than a month later he left without permission, traveled to a neighboring town (a violation of his parole) and kidnapped a woman. Doe, 670 F.Supp. at 1122. She sued the halfway house, and others, alleging negligence. The halfway house moved for summary judgment contending that as a matter of law they owed her no duty of care. Id. at 1130. The district court denied the motion because the record reflected that the halfway house knew that the inmate had left without permission, that they had reason to suspect that he was violating his parole by drinking, and that he was considered potentially dangerous and in need of mental health treatment. Id. at 1132-33. The record also raised at least the inference that the halfway house, in their acceptance and supervision of such a dangerous inmate, had arguably violated state standards imposed upon them by the “Department of Correction Policy and Procedures Manual for Contracted Agencies” as well as its own “program criteria” established pursuant to the state policy manual. Id. at 1133. In sum, the court determined that there was sufficient evidence to have the question of the halfway house’s duty to Doe decided by a jury and the motion for summary judgment was denied. Id. at 1132. Cases from other jurisdictions on similar facts have reached opposite conclusions. In King v. Durham County Mental Health Developmental Disabilities and Substance Abuse Authority, 113 N.C.App. 341, 439 S.E.2d 771 (1994) the court was faced with a suit following the fatal shooting of a person by a seventeen year old juvenile who had a history of drug abuse and violent crime. The juvenile had been transferred from a state training school to a “high management facility” operated by “Lutheran Services” which provided residential treatment to members of a class consisting of minors with serious emotional or mental handicaps accompanied by violent or assaultive behavior. King, 439 S.E.2d at 772. Lutheran Services was responsible for providing evaluation and treatment to the residents and providing facilities “equipped to prevent residents from escaping and posing a threat to the community.” Id. In fact, the particular juvenile involved was required to stay at the facility at all times in order to prevent his continued abuse of drugs; this was particularly true since the possibility of his escape posed a clear and present danger to the general public. Id. In any event, shortly after his placement at the facility the juvenile left through an unlocked door in violation of the facility’s rules. Id. Lutheran Services, in violation of regulations, failed to inform the police that the juvenile had left and failed to return him to the facility. Ultimately, the juvenile shot and killed the victim. The plaintiffs decedent filed a complaint against Lutheran Services alleging that the defendants did not evaluate the juvenile, failed to provide a secure facility, and had neglected to seek his return after he left. Id. at 772-73 The trial court dismissed the complaint for failure to state a claim. Id. at 773. The question before the North Carolina Court of Appeals was whether, on the record before the court, Lutheran Services had a duty to the plaintiffs decedent. Id. In resolving the issue, the court determined that there was no dispute that the defendants were aware that the juvenile had a propensity for violence and that they were responsible for providing treatment for him. The question, however, turned on whether they had custody of him, or had the ability or right to control him. Ultimately, the court determined that the juvenile was at Lutheran Services voluntarily, and they could not have mandated his return absent a court order. Id. at 775. “Thus, although the defendants had an obligation to insure the safety of the community, may have had an obligation to report [the juvenile’s] absence from [the high management facility] to the police and an obligation to seek his return, because there is no evidence of a court order requiring his participation in the ... program, they had no legal right to mandate his return to the facility.” Id. As a consequence, the court held that as a matter of law the defendants did not have custody of the juvenile and had neither the right or ability to control him. Id. In Erickson v. Curtis Investment Co., 432 N.W.2d 199 (Minn.App.1988); aff'd 447 N.W.2d 165 (Minn.1989), a parolee, referred to a halfway house for alcohol treatment by the Minnesota Department of Correction, attacked a woman in a downtown Minneapolis parking garage. After she sued the halfway house, and others, summary judgment was granted to the halfway house. The issue before the Court of Appeals was whether the halfway house owed a duty to control the parolee’s conduct. In a rather brief discussion, the Court of Appeals noted that there was no evidence to indicate that the halfway house had any ability to control the parolee. As the Minnesota Court of Appeals noted: [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. He was only at [the halfway house] for one hour -prior to the rape on December 7, 1983, when he stopped to sign a release allowing [the halfway house] to obtain copies [of his Department of Correction records]. We therefore hold that no duty is owed by [the halfway house] and summary judgment was properly granted. 432 N.W.2d at 203. What seemingly evolves from these cases is the apparent need for the court to examine the interrelationship between the halfway house and the placing agency. See King, 113 N.C.App. 341, 439 S.E.2d at 775; Dudley, 241 Va. 270, 401 S.E.2d at 881. See also, 9 A.L.R.5th 969 § 2(b). In addition, the court should determine whether the halfway house had sufficient control over the person so as to warrant liability. King, 113 N.C.App. 341, 439 S.E.2d at 775; Dudley, 241 Va. 270, 401 S.E.2d 878; Erickson, 432 N.W.2d 199; Doe, 670 F.Supp. 1121. After all, under Indiana law, there must at least be a “right to intervene or control the actions of [the] third person.” Sports, Inc., 431 N.E.2d at 538. In the factual matrix of this ease, the Salvation Army Facility as a matter of law had neither sufficient custody, nor control, of Holly such that a legal duty to Bailor can be imposed upon it. For example, while Holly clearly resided at the Salvation Army Facility, he remained under the legal custody of the Attorney General. (Wilson Declaration, exhibit F Furlough, Application Approval, and Record and Transfer Order); See also, Perez-Calo v. U.S., 757 F.Supp. 1 (D.Puerto Rico 1991). As a pre-release inmate, Holly was under the least restrictive conditions possible. This was consistent with the view that (unlike the inmate in Dudley) Holly was soon to be released from federal custody with practically no restrictions whatever. (Rowland dep. pp. 64-5). In addition to not having legal custody of Holly, the Salvation Army had no real ability or right to control him. The scope of the Salvation Army’s work generally required them to “furnish the necessary facilities, equipment and personnel to provide for the safekeeping, care and assistance of persons residing” in the work release center. (“Statement of Work,” hereafter “SOW”) p. 2. The Salvation Army had only minimal input into the contents of the SOW. (Rowland dep. pp. 14, 56.) In fact, the SOW was largely imposed on halfway house contractors around the country by the BOP. Id. As the SOW prescribed, the Salvation Army could not -use physical force to restrain a resident except “in instances of justifiable self-defense, prevention of loss or damage to property or person, or the prevention of self-inflicted harm, and only to the degree necessary.” (SOW, p. 3; Rowland dep., p. 37) Salvation Army personnel were not authorized to possess lethal weapons on duty. (SOW p. 3) While residing at the halfway house, Holly was not permitted to perform work for the Salvation Army, except that he might be required to maintain his own living area. (Id. p. 6.) “Extra duty” could only be imposed for minor rule infractions, and could only include occasional lawn mowing or food preparation. (Id. and Rowland dep., p. 39) Holly was relatively free to leave the facility provided that he executed a sign-out sheet. (SOW p. 14). Other' than for employment, Holly was to be in the center by 11:00 p.m. each night. (Id.) Holly could also obtain furloughs for more extensive absences and travel. (Id. pp. 14-15.) Holly’s room in the halfway house could only be locked from the inside, not by the staff from the outside. (Rowland dep., p. 34) In fact, the halfway house had no detention facilities at all. (Id.) The entire facility was locked only to outsiders, and not to those people leaving. (Id. p. 35) Moreover, the Salvation Army only had independent discretion to impose sanctions on a resident for the most minor of prohibited acts. (SOW attach. A, pp. 1-5, 17). Minor sanctions of a more serious nature, and major sanctions, required approval from the BOP CCM who was the Salvation Army’s technical representative. (Id. pp. 1, 31). In fact, the BOP representative had sole discretion whether to increase the severity of the sanctions recommended by the Salvation Army. (SOW p. 1, attach. A). It was not until 1989 that a new SOW clarified that the contractor was to notify the U.S. Marshal and the BOP representative immediately upon an escape. (February 1989 SOW, p. 57). So, the Salvation Army facility from which Holly escaped was not a detention facility, the resid