Case: 19-40932 Document: 00515990602 Page: 1 Date Filed: 08/23/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 23, 2021
No. 19-40932 Lyle W. Cayce
Clerk
Bryan Kerr Dickson,
Plaintiff—Appellant,
versus
United States of America,
Defendant—Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:14-CV-250
Before King, Higginson, and Wilson, Circuit Judges.
Stephen A. Higginson, Circuit Judge:
Plaintiff-Appellant Bryan Kerr Dickson, a former prisoner at the
United States Penitentiary in Beaumont, Texas (“USP Beaumont”), filed
suit, pro se, against the United States under the Federal Tort Claims Act
(“FTCA”), asserting both negligence and intentional tort claims.1 He alleges
1
In the district court, Dickson expressly disavowed that he was pursuing
constitutional claims pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau
of Narcotics, 403 U.S. 388 (1971). Therefore, although Dickson appears to assert
constitutional claims in his appellate brief, we decline to consider them. See In re Deepwater
Horizon,
857 F.3d 246, 251 (5th Cir. 2017) (“[A]rguments not raised before the district
Case: 19-40932 Document: 00515990602 Page: 2 Date Filed: 08/23/2021
No. 19-40932
that Bureau of Prisons (“BOP”) officials caused him a variety of harm while
he was incarcerated at USP Beaumont. The district court dismissed both his
negligence and intentional tort claims for lack of subject matter jurisdiction,
holding that the United States had not waived its sovereign immunity. We
AFFIRM in part, REVERSE in part, and REMAND for further
proceedings.
I.
In his complaint, Dickson alleges that the BOP transferred him to USP
Beaumont and housed him in the general population despite his expressed
fears that he would be targeted for violence by other inmates due to his
convictions for possession and production of child pornography. After the
BOP allegedly ignored his concerns, Dickson was assaulted by another
inmate. Following the assault—which Dickson did not initially report and
instead came to light after BOP staff noticed his injuries—Dickson was
transferred from the general population to the Special Housing Unit
(“SHU”) for a threat assessment. While in the SHU, Dickson alleges that
the BOP denied him mental health treatment as well as access to the law
library, administrative remedy forms, reading materials, adequate clothing
and personal hygiene items. He further alleges that BOP staff encouraged
him to commit suicide, destroyed legal documents, poisoned his food, made
disparaging sexual remarks, and housed him in a cell without clothing for
extended periods of time.
While still in the SHU, Dickson attempted to commit suicide,
allegedly after BOP staff ignored his request to speak to someone at
psychological services to treat his suicidal thoughts. Following the suicide
court are waived and cannot be raised for the first time on appeal.” (quoting LeMaire v. La.
Dep’t of Transp. & Dev. 480 F.3d 383, 387 (5th Cir. 2007))).
2
Case: 19-40932 Document: 00515990602 Page: 3 Date Filed: 08/23/2021
No. 19-40932
attempt, Dickson alleges he was again assaulted by another inmate, this time
in front of BOP staff who ignored the assault.
For these alleged harms, Dickson filed suit and sought damages,
medical treatment, attorney’s fees, and release from confinement. The
Government moved to dismiss Dickson’s complaint under Federal Rules of
Civil Procedure 12(b)(1) and (b)(6), arguing that the district court lacked
subject matter jurisdiction and that Dickson’s complaint failed to state a
claim.
The district court granted the motion, holding that it lacked subject
matter jurisdiction over Dickson’s negligence and intentional tort claims.
With respect to the negligence claims, the district court concluded that the
“discretionary function exception” to the FTCA’s waiver of sovereign
immunity applied and that, as a result, the court lacked subject matter
jurisdiction over those claims. With respect to the intentional tort claims, the
district court held that the “law enforcement proviso” to the FTCA’s
intentional tort exception did not apply, and thus the court likewise lacked
subject matter jurisdiction over the claims.
Dickson timely appealed, arguing that the district court erred in its
application of the discretionary function exception and the law enforcement
proviso. We take each issue in turn.
II.
“We review de novo the district court’s order granting the
Government’s motion to dismiss under Federal Rule of Civil Procedure
12(b)(1) for lack of subject matter jurisdiction.” Spotts v. United States, 613
F.3d 559, 565 (5th Cir. 2010) (citation omitted); see also City of Austin v.
Paxton,
943 F.3d 993, 997 (5th Cir. 2019) (“We review the district court’s
jurisdictional determination of sovereign immunity de novo.”). For a
3
Case: 19-40932 Document: 00515990602 Page: 4 Date Filed: 08/23/2021
No. 19-40932
12(b)(1) motion, the general burden is on the party asserting jurisdiction.
Castro v. United States, 608 F.3d 266, 268 (5th Cir. 2010) (en banc).
III.
The FTCA waives sovereign immunity and permits suit against the
United States for monetary claims sounding in state tort law that allege
negligent or wrongful acts committed by government employees. Spotts, 613
F.3d at 566 (citing
28 U.S.C. § 2674). This waiver, however, is subject to
various exceptions which preserve the United States’ sovereign immunity.
Id. One such exception is known as the “discretionary function exception.”
Id. (citing
28 U.S.C. § 2680). “The discretionary function exception
withdraws the FTCA’s waiver of sovereign immunity in situations in which,
although a government employee’s actions may have been actionable under
state tort law, those actions were required by, or were within the discretion
committed to, that employee under federal statute, regulation, or policy.”
Id.
“At the pleading stage, [the] plaintiff must invoke the court’s jurisdiction by
alleging a claim that is facially outside of the discretionary function
exception.” St. Tammany Parish ex rel. Davis v. Fed. Emergency Mgmt. Agency,
556 F.3d 307, 315 & n.3 (5th Cir. 2009).
To determine whether the discretionary function exception applies,
the Supreme Court has developed a two-part test. Spotts, 613 F.3d at 567
(citing United States v. Gaubert,
499 U.S. 315, 322-23 (1991)).
First, courts must determine whether the challenged act involves an
element of judgment or choice on the part of the employee. Gaubert, 499 U.S.
at 322. For example, “[i]f a statute, regulation, or policy leaves it to a federal
agency to determine when and how to take action, the agency is not bound to
act in a particular manner and the exercise of its authority is discretionary.”
Spotts,
613 F.3d at 567 (citing Gaubert,
499 U.S. at 329). Conversely, if an
employee violates a mandatory directive in a federal statute, regulation, or
4
Case: 19-40932 Document: 00515990602 Page: 5 Date Filed: 08/23/2021
No. 19-40932
policy, “there will be no shelter from liability because there is no room for
choice and the action will be contrary to policy.” Gaubert, 499 U.S. at 324.
Second, “‘even assuming the challenged conduct involves an element
of judgment,’ and does not violate a nondiscretionary duty, we must still
decide whether the ‘judgment is of the kind that the discretionary function
exception was designed to shield.’” Spotts, 613 F.3d at 568 (quoting Gaubert,
499 U.S. at 322-23). As the Supreme Court describes, the exception is
designed to protect “only governmental actions and decisions based on
considerations of public policy.” Gaubert,
499 U.S. at 323 (quoting Berkovitz
by Berkovitz v. United States,
486 U.S. 531, 537 (1988)). As such, “if a
regulation allows the employee discretion, the very existence of the
regulation creates a strong presumption that a discretionary act authorized
by the regulation involves consideration of the same policies which led to the
promulgation of the regulations.” Id. at 324.
Here, Dickson’s complaint does not precisely describe which
employee actions he is challenging as the basis of his negligence claims.
Nevertheless, the district court fairly construed his complaint as asserting
that BOP officials acted negligently in transferring him to USP Beaumont and
in housing him in the general population despite his concerns for his safety.
And it correctly held that those challenged actions are encompassed by the
discretionary function exception.
As the district court held, federal statutes confer discretion on the
BOP to classify prisoners and place them in institutions in accordance with
public policy. See Cohen v. United States, 151 F.3d 1338, 1343 (11th Cir. 1998)
(citing
18 U.S.C. §§ 3621, 4081). Thus, “decisions regarding the transfers
and classifications of prisoners generally fall within the discretionary function
exception.” Patel v. United States,
398 F. App’x 22, 29 (5th Cir. 2010) (per
curiam) (unpublished). The same is generally true for decisions to place a
5
Case: 19-40932 Document: 00515990602 Page: 6 Date Filed: 08/23/2021
No. 19-40932
prisoner within the general population of a specific institution. See Ashford v.
United States, 463 F. App’x 387, 394 (5th Cir. 2012) (per curiam)
(unpublished).
While it may be possible that other policies remove components of this
general discretion under certain circumstances, see id. at 392–94, Dickson has
not identified any such policy or otherwise alleged that the BOP violated a
nondiscretionary duty when it placed him within the general population at
USP Beaumont. He has thus not met his burden to demonstrate that the
discretionary function exception does not apply to his claim. See St. Tammany
Parish,
556 F.3d at 315.
The same is true of other grievances contained in Dickson’s complaint
that could be construed as negligence claims. For example, while Dickson
generally alleges that his requests for mental health treatment were denied,
he does not allege that those denials violated nondiscretionary duties or that
they were discretionary decisions not based on considerations of public
policy. See Lopez v. U.S. Immigr. & Customs Enf’t, 455 F. App’x 427, 432–34
(5th Cir. 2011) (unpublished). Indeed, the regulations he generally invokes
are not pertinent to the challenged actions. See, e.g.,
28 C.F.R. § 549.70-72
(governing the charging of fees for health care services administered to
inmates).
We therefore AFFIRM the district court’s decision to dismiss
Dickson’s negligence claims for lack of subject matter jurisdiction.
IV.
Another exception to the FTCA’s waiver of sovereign immunity is the
“intentional tort exception,” which “preserves the Government’s immunity
from suit for ‘[a]ny claim arising out of assault, battery, false imprisonment,
false arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights.’” Millbrook v.
6
Case: 19-40932 Document: 00515990602 Page: 7 Date Filed: 08/23/2021
No. 19-40932
United States, 569 U.S. 50, 52 (2013) (citing
28 U.S.C. § 2680(h)). But this
exception itself has an exception. The “law enforcement proviso” to the
intentional tort exception “extends the waiver of sovereign immunity to
claims for six intentional torts[2] . . . that are based on the ‘acts or omissions
of investigative or law enforcement officers.’”
Id. at 52–53 (citing
28 U.S.C.
§ 2680(h)). In short, if the “law enforcement proviso” applies, sovereign
immunity is waived.
Id.
Here, Dickson’s complaint asserts claims for the intentional torts of
assault, battery, false arrest, abuse of process, and intentional infliction of
emotional distress. In deciding whether it had subject matter jurisdiction over
these claims, the district court first noted—correctly—that BOP officials are
“law enforcement officers” within the meaning of the law enforcement
proviso. Chapa v. United States, 339 F.3d 388, 390 (5th Cir. 2003) (per
curiam). Nevertheless, citing this court’s unpublished decision in Cross v.
United States,
159 F. App’x 572, 575 (5th Cir. 2005), the district court held
that the law enforcement proviso did not apply to the allegations in Dickson’s
complaint because the defendant BOP officials were not acting in an
investigative or law enforcement capacity when allegedly committing the
torts. See
id. at 576. In other words, although the defendant BOP officers had
the status of law enforcement officers within the meaning of the law
enforcement proviso, they were not engaged in law enforcement activities
when allegedly committing the torts and thus the proviso did not apply. See
id.
The problem with our holding in Cross—and the district court’s
reliance on it—is that the Supreme Court has since explicitly rejected this
2
These six intentional torts are: assault, battery, false imprisonment, false arrest,
abuse of process, and malicious prosecution. 28 U.S.C. § 2680(h).
7
Case: 19-40932 Document: 00515990602 Page: 8 Date Filed: 08/23/2021
No. 19-40932
“status” versus “activities” distinction for purposes of the law enforcement
proviso. In Millbrook, the Court made clear that only the former matters. 569
U.S. at 57 (“We hold that the waiver effected by the law enforcement proviso
extends to acts or omissions of law enforcement officers that arise within the
scope of their employment, regardless of whether the officers are engaged in
investigative or law enforcement activity . . . .”); accord Campos v. United
States,
888 F.3d 724, 737 (5th Cir. 2018).
The Government did not cite Millbrook below or in its initial brief here.
But in a supplemental letter submitted to this court, the Government
acknowledges that Millbrook controls and concedes that Dickson’s
intentional tort claims should be remanded to the district court for further
consideration. We therefore REVERSE the district court’s decision
dismissing Dickson’s intentional tort claims for lack of jurisdiction and
REMAND this case for further proceedings. On remand, the only remaining
question for the district court to determine with respect to whether the law
enforcement proviso applies is whether the BOP officials were acting within
the scope of their employment when committing the alleged torts.3 See
3
Intentional infliction of emotional distress (“IIED”) is not an intentional tort that
is excepted from the FTCA’s waiver of sovereign immunity. Truman v. United States, 26
F.3d 592, 593 (5th Cir. 1994). Nevertheless, the district court held that it lacked jurisdiction
over Dickson’s IIED claim because it “arises out of” his alleged assault and false
imprisonment. See
id. at 594 (holding that a non-excepted tort claim can still be barred
“when the underlying governmental conduct ‘essential’ to the plaintiff’s claim can fairly
be read to ‘arise out of’ conduct that would establish an excepted cause of action” (quoting
McNeily v. United States,
6 F.3d 343, 347 (5th Cir. 1993))). We disagree. Dickson alleges
conduct—for example, that BOP officials encouraged him to commit suicide and made
disparaging remarks about his genitals—that are not derivative of an assault or false
imprisonment claim. See
id. at 594–95; see also Brennan v. Mercedes Benz USA,
388 F.3d 133,
136 (5th Cir. 2004) (describing the elements of IIED under Texas law). Therefore, even if
the district court determines on remand that the BOP officials were not acting within the
scope of their employment—thus rendering the law enforcement proviso inapplicable—
Dickson’s IIED claim would not be jurisdictionally barred as arising out of an excepted
8
Case: 19-40932 Document: 00515990602 Page: 9 Date Filed: 08/23/2021
No. 19-40932
Millbrook, 569 U.S. at 55 & n.3; see also Humphries v. Elliott Co.,
760 F.3d 414,
418 (5th Cir. 2014) (“It is the general rule . . . that a federal appellate court
does not consider an issue not passed upon below.” (quoting Singleton v.
Wulff,
428 U.S. 106, 120 (1976))). As that remains a threshold jurisdictional
inquiry, the district court must address the question before considering any
alternative motion under Rule 12(b)(6). Ermuraki v. Renaud,
987 F.3d 384,
386 (5th Cir. 2021) (per curiam).
V.
We AFFIRM the dismissal of Dickson’s negligence claims. We
REVERSE the dismissal of Dickson’s intentional tort claims and
REMAND for further proceedings.
IT IS FURTHER ORDERED that Dickson’s unopposed motion
to unseal the record and this appeal is GRANTED, and that his motion for
summary judgment and motion to expedite the appeal are DENIED as
moot.
cause of action. But while jurisdiction over the claim may exist, we make no comment on
whether Dickson’s allegations sufficiently plead an IIED claim for purposes of surviving a
Rule 12(b)(6) motion.
9
