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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-12493
________________________
D.C. Docket No. 5:16-cv-00276-WTH-PRL
MACKIE L. SHIVERS, JR.,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
DALE GRAFTON,
Unit Manager, USP Coleman 2,
T. ANTHONY,
Counselor, USP Coleman 2,
FNU SPURLOCK,
Counselor, USP Coleman 2,
FNU GAY,
Psychologist, USP Coleman 2,
FNU BARKER,
Case Manager, USP Coleman 2, et al.,
Defendants-Appellees.
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________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 9, 2021)
Before WILSON, LAGOA, and HULL, Circuit Judges.
HULL, Circuit Judge:
Mackie Shivers, a federal inmate, brought this civil action following an
attack by his cellmate, Marvin Dodson. In his pro se complaint, Shivers alleged
that prison officials negligently assigned Dodson to his cell and that their conduct
also violated his Eighth Amendment rights. Shivers brought suit against the
United States under the Federal Tort Claims Act (“FTCA”),
28 U.S.C.
§ 1346(b)(1) and against five prison employees under Bivens. 1
The district court dismissed Shivers’s FTCA claim against the United States
based on the discretionary function exception,
28 U.S.C. § 2680(a), to the FTCA’s
waiver of sovereign immunity. It dismissed without prejudice his Bivens claim
against the prison employees for failure to exhaust his administrative remedies.
1
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388,
91 S.
Ct. 1999 (1971). A Bivens claim is a cause of action for damages against individual government
officials alleged to have violated the plaintiff’s constitutional rights. See Corr. Servs. Corp. v.
Malesko,
534 U.S. 61, 66,
122 S. Ct. 515, 519 (2001).
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After review, and with the benefit of oral argument, we affirm the district court’s
dismissal of Shivers’s claims.
I. BACKGROUND
In August 2015, Shivers was a 64-year-old inmate at a federal prison.
Dodson was a 26-year-old, mentally unstable inmate at the same prison. Prison
officials assigned Dodson to Shivers’s cell. Both were imprisoned for cocaine
drug convictions. After eight months without incident, Dodson stabbed Shivers in
the eye with a pair of scissors while Shivers was sleeping. Shivers is now
permanently blind in that eye.
Following the attack, Shivers pursued his administrative remedies with help
from another inmate, Gordan Reid. The parties agree that Shivers properly
completed the first three steps of the process—submission of BP-8, BP-9, and
BP-10 forms. Shivers received denials at each level. Shivers believes he properly
completed the fourth and final step of the administrative process—submission of
the BP-11 form—but the government claims that it never received the form.
After he thought he had exhausted his administrative remedies, Shivers
brought this FTCA and Bivens action against the United States and five prison
employees (collectively, “the government”). His pro se complaint alleged that
prison officials knew or should have known before they assigned Dodson to
Shivers’s cell that Dodson “was presenting aggressive and violent tendencies
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toward other prisoners”—especially his cellmates—and that he had a history of
assaulting his cellmates. His complaint also alleged that he was afraid for his
safety, and that he voiced those concerns to prison officials. He claimed that the
government’s conduct was negligent, and that his “[r]ight to be free of cruel and
unusual [p]unishment was violated.”
The government moved to dismiss or for summary judgment. Of relevance
here, the government argued that the discretionary function exception barred
Shivers’s FTCA claim. It also asserted that Shivers had failed to exhaust his
administrative remedies as to his Bivens claim. The government attached a copy
of the Bureau of Prison’s (“BOP”) SENTRY Administrative Remedy Generalized
Retrieval database showing that the Central Office never received Shivers’s BP-11
form.
As to the discretionary function exception, Shivers argued that he should be
given the opportunity to conduct discovery to challenge the government’s
arguments and declarations about application of the exception. And as to the
Bivens claim, Shivers argued that he had taken all necessary steps to exhaust his
administrative remedies, providing his and Reid’s declarations in support. The
declarations said that Reid had helped him prepare the BP-11 form to be mailed to
the Central Office in Washington, D.C.; that Shivers had provided Reid with a
signed and dated copy of the form; and that Shivers had told Reid that he handed a
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stamped envelope containing the original to the prison’s institutional-mail officer.
Shivers also claimed that he had repeatedly asked various prison officials about the
status of his BP-11 appeal to no avail. Shivers attached an unsigned copy of the
BP-11 form to his declaration, claiming it was a “true and correct copy” of the
form he submitted to the Central Office.
The district court granted the government’s motion to dismiss. The court
dismissed Shivers’s FTCA claim for lack of subject matter jurisdiction because the
discretionary function exception barred Shivers’s claim against the United States.
It dismissed Shivers’s Bivens claim for failure to exhaust administrative remedies.
Shivers appeals both dismissals. This Court appointed appellate counsel for
Shivers.
II. FTCA CLAIM
A. The FTCA,
28 U.S.C. § 1346(b)(1)
For starters, Shivers’s FTCA tort claim is against only the United States
which, as a sovereign entity, is immune from suit without the consent of Congress.
United States v. Mitchell,
445 U.S. 535, 538,
100 S. Ct. 1349, 1351 (1980). The
FTCA represents a limited congressional waiver of sovereign immunity for injury
or loss caused by the “negligent or wrongful act or omission” of a government
employee “acting within the scope of his office or employment, under
circumstances where the United States, if a private person, would be liable to the
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claimant in accordance with the law of the place where the act or omission
occurred.”
28 U.S.C. § 1346(b)(1). The FTCA addresses violations of state law
by federal employees, not federal constitutional claims. See F.D.I.C. v. Meyer,
510 U.S. 471, 477–78,
114 S. Ct. 996, 1001 (1994) (explaining a “constitutional
tort claim is not ‘cognizable’ under § 1346(b)” because the source of substantive
liability under the FTCA is state law, not federal law).
B. Exception in
28 U.S.C. § 2680(a)
Nonetheless, the FTCA broadly exempts (from the FTCA’s waiver of
sovereign immunity) “[a]ny claim . . . based upon the exercise or performance or
the failure to exercise or perform a discretionary function or duty on the part of a
federal agency or an employee of the Government, whether or not the discretion
involved be abused.”
28 U.S.C. § 2680(a) (emphasis added). The upshot of
§ 2680(a) is that when the United States’s performance of a “function or duty”
involves discretion, the fact that the discretion was misused or abused in any way
does not lead to liability for the U.S. Treasury. “[T]he purpose of the exception is
to prevent judicial second-guessing of . . . administrative decisions grounded in
social, economic, and political policy through the medium of an action in tort.”
United States v. Gaubert,
499 U.S. 315, 323,
111 S. Ct. 1267, 1273 (1991)
(quotation marks omitted).
C. Gaubert’s Two-Prong Test
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United States v. Gaubert and its two-prong test govern the application of the
FTCA’s discretionary function exception.
499 U.S. at 322–23,
111 S. Ct. at 1273–
74. In Gaubert’s two-prong test, the Supreme Court expressly instructed courts
how to determine whether challenged government conduct involves “a
discretionary function or duty” for purposes of § 2680(a)’s exception. Id. at 322–
23,
111 S. Ct. at 1273 (quoting
28 U.S.C. § 2680(a)). First, a court must determine
whether the conduct challenged by the plaintiff was “discretionary in nature”—that
is, whether it involved “an element of judgment or choice.”
Id. at 322,
111 S. Ct.
at 1273 (quotation marks omitted). Second, a court must evaluate “whether that
judgment [or choice] is of the kind that the discretionary function exception was
designed to shield.”
Id. at 322–23,
111 S. Ct. at 1273 (quotation marks omitted).
Applying Gaubert’s two-prong test, our Court has squarely held that the
category of conduct challenged here—inmate-classification and housing-placement
decisions—involves “a discretionary function or duty” protected by § 2680(a)’s
exception. Cohen v. United States,
151 F.3d 1338, 1340, 1342–45 (11th Cir. 1998)
(quoting
28 U.S.C. § 2680(a)) (concluding in an FTCA case that prison officials’
actions in classifying prisoners and placing them in institutions—actions that “are
part and parcel of the inherently policy-laden endeavor of maintaining order and
preserving security within our nation’s prisons”—involve conduct or decisions that
meet both prongs of the discretionary function exception). In Cohen, our Court
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held that, while
18 U.S.C. § 4042 “imposes on the BOP a general duty of care to
safeguard prisoners,” it “leaves BOP personnel sufficient discretion about how
their § 4042 duty of care is to be accomplished to warrant application of the
discretionary function exception.” Id. at 1342. Thus, inmate-classification and
housing-placement decisions fall squarely within the discretionary function
exception. See id. at 1345.
D. Shivers’s Arguments as to Constitutional Claims
Shivers nonetheless argues that the discretionary function exception does not
apply here because the prison officials’ decision to house Dodson in his cell
violated the Eighth Amendment.2 Shivers contends that the BOP’s discretionary
inmate-placement decision is protected when the decision is merely tortious but not
when that same conduct is both tortious and unconstitutional. Appellant’s Supp.
Br. at 22. Shivers reasons that prison employees “do not have discretion to violate
the Constitution” and that therefore, as a matter of law, tortious conduct if
allegedly unconstitutional necessarily falls outside the scope of the discretionary
function exception “even if the government can otherwise meet the requirements”
of Gaubert’s test, since the discretionary function exception “does not immunize
conduct that violates the Constitution.” Id. at 13, 22 (emphasis added).
2
We review de novo whether an FTCA claim is barred by the discretionary function
exception. Douglas v. United States,
814 F.3d 1268, 1273 (11th Cir. 2016).
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Further, Shivers considers the allegations of unconstitutional conduct only as
negating the discretionary function defense, not as part of the substantive FTCA
claim. He maintains that while “[t]he substantive basis for [his] FTCA claim
remains Florida law,” an alleged constitutional violation “means that the
government cannot shield itself using the discretionary function exception.”
Id. at
19–20. Under this view, his FTCA claim will proceed as a negligence claim, but
the United States’s statutory discretionary function defense to that negligence
claim is not available if Shivers’s complaint also sufficiently alleges an Eighth
Amendment violation.
Under Shivers’s creative dichotomy, an FTCA plaintiff would prove
(1) first, the substantive FTCA state-law negligence claim, and (2) next, a federal
violation of the Eighth Amendment by a prison employee that would negate the
defendant United States’s discretionary function defense to the plaintiff’s state-law
claim. While Shivers teases apart the two issues, what remains, in practice, is that
in an FTCA state-law negligence case, the plaintiff can prevail (by negating the
discretionary function defense) if the plaintiff proves that the alleged conduct “is
both tortious and unconstitutional.”
Id. at 22. Shivers in effect argues for a
“constitutional-claims exclusion” from the discretionary function exception in
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§ 2680(a). Shivers’s arguments fail, as discussed below. 3
E. Analysis
First, the statutory text of the discretionary function exception is
unambiguous and categorical: the FTCA “shall not apply to . . . [a]ny claim” that
arises from “a discretionary function or duty on the part of a federal agency or any
employee of the Government, whether or not the discretion involved be abused.”
28 U.S.C. § 2680(a) (emphasis added). This statutory text is plain and broad,
encompassing “[a]ny claim” based on “a discretionary function or duty.”
Id. And
the language Congress chose in § 2680(a) is unqualified—there is nothing in the
statutory language that limits application of this exception based on the “degree” of
the abuse of discretion or the egregiousness of the employee’s performance.
Congress could have adopted language that carved out certain behavior from this
exception—for example, grossly negligent behavior, intentional behavior, or
behavior that rises to the level of a constitutional violation. But Congress did not
do so, and it is Congress that uniquely decides what should fall within the waiver
of sovereign immunity.
The critical inquiry in an FTCA case like this one, therefore, is whether the
3
The Dissent makes largely the same arguments as Shivers, and thus our analysis below
of Shivers’s claims applies to the Dissent as well. Further, we reject the government’s argument
that Shivers waived or forfeited his position that the discretionary function exception does not
apply to his FTCA tort claim, and thus address the merits of Shivers’s arguments.
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category or type of challenged government activity is discretionary under Gaubert.
If it is, the express terms of the congressional consent to be sued, as expressed in
§ 2680(a), shield the United States from liability whether the governmental
employee’s exercise of his or her discretion is appropriate, slightly abusive, or so
abusive that it is unconstitutional.
Congress left no room for the extra-textual “constitutional-claims exclusion”
for which Shivers advocates. See Millbrook v. United States,
569 U.S. 50, 56–57,
133 S. Ct. 1441, 1445–46 (2013) (applying “[t]he plain text” of the FTCA and
“declin[ing] to read . . . a limitation into unambiguous text”). The incompatibility
of Shivers’s proposed exclusion with the FTCA’s remedial scheme is reinforced by
the fact that Congress did not create the FTCA to address constitutional violations
at all but, rather, to address violations of state tort law committed by federal
employees. See Meyer,
510 U.S. at 477–78,
114 S. Ct. at 1001. The statutory
language Congress used in the FTCA forecloses Shivers’s claim. See BP P.L.C. v.
Mayor & City Council of Baltimore, 593 U.S. ___,
141 S. Ct. 1523, 1539 (2021)
(“Exceptions and exemptions are no less part of Congress’s work than its rules and
standards—and all are worthy of a court’s respect. That a law might temper its
pursuit of one goal by accommodating others can come as no surprise.”).
Second, the Supreme Court in Gaubert defined “a discretionary function or
duty” on the part of a federal agency or employee and instructed how courts should
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determine if a “function or duty” is “discretionary” for purposes of § 2680(a). As
noted earlier, under Gaubert’s first prong, a court must determine if the challenged
conduct—here, an inmate-classification and housing-placement decision—was
“discretionary in nature,” that is whether it involved “an element of judgment or
choice.” See Gaubert,
499 U.S. at 322,
111 S. Ct. at 1273 (quotation marks
omitted). The inquiry is not about how poorly, abusively, or unconstitutionally the
employee exercised his or her discretion but whether the underlying function or
duty itself was a discretionary one.
The Supreme Court has explained that there is no discretion to exercise
when a “federal statute, regulation, or policy specifically prescribes a course of
action for an employee to follow.” Gaubert,
499 U.S. at 322,
111 S. Ct. at 1273
(emphasis added) (quoting Berkovitz v. United States,
486 U.S. 531, 536,
108 S.
Ct. 1954, 1958–59 (1988)). Only when a federal employee acts contrary to a
specific prescription in federal law—be it a statute, regulation, or policy—does the
discretionary function exception not apply. See id. at 322,
111 S. Ct. at 1273. The
Supreme Court has repeatedly said that the discretionary function exception
applies unless a source of federal law “specifically prescribes” a course of conduct.
Id. (quoting Berkovitz,
486 U.S. at 536,
108 S. Ct. at 1958–59).
Shivers points to no federal statute, regulation, or policy that specifically
prescribes a course of action that the prison employees here failed to follow. And,
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of course, the Eighth Amendment itself contains no such specific directives as to
inmate classifications or housing placements. Indeed, Shivers does not suggest on
appeal that the prison officials had no discretion in their classification and housing
placement decisions because of a directive from the Eighth Amendment that meets
Gaubert’s test.
Further, the FTCA is not based on alleged constitutional violations, and a
plaintiff cannot circumvent the limitations on constitutional tort actions under
Bivens—including the qualified-immunity doctrine—by recasting the same
allegations (1) as a common-law tort claim under the FTCA that is not subject to
the discretionary function exception or (2) as negating the discretionary function
defense. 4
4
The Dissent argues that Berkovitz supports the position that unconstitutional conduct is
never “permissible exercise of policy judgment.” Diss. Op. at 25–27 (quoting Berkovitz,
486
U.S. at 539,
108 S. Ct. at 1960). However, Berkovitz, like Gaubert, actually shows why the
discretionary function exception applies to Shivers’s FTCA claim. The Supreme Court in
Berkovitz instructed that conduct is discretionary if “it involves an element of judgment or
choice” and that the exception “protects the discretion of the executive . . . to act according to
one’s judgment of the best course.”
486 U.S. at 536,
108 S. Ct. at 1958 (quotation marks
omitted). Indeed, the Supreme Court required that “a federal statute, regulation, or policy
specifically prescribe[] a course of action for an employee to follow” in order for the
discretionary function exception not to apply.
Id. (emphasis added).
In Berkovitz, the Supreme Court emphasized that “a specific statutory and regulatory
directive” required that the government agency receive certain test data before issuing a vaccine
license, but the government agency issued the license without first obtaining the required test
data.
Id. at 533, 540–43,
108 S. Ct. at 1957, 1961–62 (emphasis added). Thus, the government
agency had “no discretion to issue [the] license without first receiving the required test data; to
do so . . . violate[d] a specific statutory and regulatory directive.”
Id. at 542–43,
108 S. Ct. at
1962. Berkovitz thus supports the government’s position that the district court correctly
dismissed Shivers’s FTCA claim as barred by the discretionary function exception under Cohen
because Shivers points to no specific statute, regulation, or policy that was violated.
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Third, a cogent analysis of why there is no “constitutional-claims exclusion”
to the statutory discretionary function exception (to the FTCA’s waiver of sovereign
immunity) is found in two Seventh Circuit decisions: (1) Kiiskila v. United States,
466 F.2d 626 (7th Cir. 1972); and (2) Linder v. United States,
937 F.3d 1087 (7th
Cir. 2019), cert. denied,
141 S. Ct. 159 (2020). In Kiiskila, the plaintiff was the
civilian office manager of a credit union located on a military base.
Id. at 626. The
base’s commanding officer permanently barred the plaintiff from entry onto the
base—thereby costing the plaintiff her job—because of the plaintiff’s alleged
violation of a base regulation. See
id. at 626–27. In an earlier appeal in the case,
the Seventh Circuit held that the exclusion of the plaintiff from the base and the
resulting loss of her job violated the First Amendment.
Id. at 627.
On remand, the plaintiff amended her complaint to add a claim for damages
under the FTCA.
Id. The district court dismissed the FTCA claim based on the
discretionary function exception, and the Seventh Circuit affirmed, holding that “her
exclusion from Fort Sheridan was based upon Colonel Nichols’ exercise of
discretion, albeit constitutionally repugnant, and therefore excepted her claim from
the reach of the [FTCA] under
28 U.S.C. § 2680(a).”
Id. at 627–28 (emphasis
added). The Seventh Circuit noted that the officer’s decision to enforce the
regulation against the plaintiff and his selection of the methods to accomplish that
enforcement were both discretionary functions, and stated:
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Of course, this is not to say the Colonel could not, through negligence
or wrongful exercise, have abused his discretion by enforcing the
regulation against activity “too far removed in terms of both distance
and time” to pass constitutional muster; we have already determined
the constitutional infirmity of the Colonel’s exclusion. But
28 U.S.C.
§ 2680(a) precludes action for abuse of discretionary authority whether
through negligence or wrongfulness.
Since Colonel Nichols had discretion in choosing to apply the
regulation, the Government remains immune from liability under
28
U.S.C. § 2680(a).
Id. at 628 (citations omitted) (quoting Kiiskila v. Nichols,
433 F.2d 745, 751 (7th
Cir. 1970) (en banc)).
Similarly, Linder, another FTCA case, expressly addresses whether a
plaintiff’s plausible allegation of unconstitutional conduct deprives the United
States of its sovereign immunity, which is otherwise preserved by § 2680(a)’s
discretionary function exception to the FTCA. Linder, 937 F.3d at 1090–91.
Although the district court in Linder concluded that the federal employee’s conduct
violated the Sixth Amendment, the Seventh Circuit rejected the plaintiff’s
argument that a constitutional violation defeats the discretionary function
exception to the FTCA’s waiver of the United States’s sovereign immunity. Id.
In Linder, the FTCA plaintiff made the same argument as Shivers—that “no
one has discretion to violate the Constitution.” Id. at 1090. The Seventh Circuit
rejected it because that principle has “nothing to do with the Federal Tort Claims
Act, which does not apply to constitutional violations.” Id. The Seventh Circuit
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reasoned that the FTCA applies to torts, as defined by state law, in “circumstances
where the United States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission occurred,” while
the Constitution governs the conduct of only public officials, not private ones. Id.
(quoting
28 U.S.C. § 1346(b)(1)). The Seventh Circuit explained:
[U]nless § 2680(a) is to be drained of meaning, it must apply to
discretionary acts that are tortious. That’s the point of an exception: It
forecloses an award of damages that otherwise would be justified by a
tort. Nothing in subsection (a) suggests that some discretionary but
tortious acts are outside the FTCA while others aren’t.
Id. at 1091.
Once the BOP’s inmate-classification and housing-placement function is
determined to be a discretionary function, then tortious acts (including
unconstitutional tortious acts) in exercising that function fall within § 2680(a)’s
discretionary function exception. Prisoners can and should bring constitutional
claims against individual prison officials under Bivens for their unconstitutional
conduct, which is what Shivers did here against five prison employees. But a
prisoner’s FTCA tort claim based on the government’s tortious abuse of that
function—even unconstitutional tortious abuse—is barred by the statutory
discretionary function exception, as written and enacted. 5
5
We acknowledge that there is a circuit split on this same discretionary function issue.
See Loumiet v. United States,
828 F.3d 935, 944–46 (D.C. Cir. 2016); Limone v. United States,
579 F.3d 79, 101–02 (1st Cir. 2009); Raz v. United States,
343 F.3d 945, 948 (8th Cir. 2003);
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Notably too, the Seventh Circuit in Linder explained that it was in part
because of “[t]he limited coverage of the FTCA, and its inapplicability to
constitutional torts” that the Supreme Court created Bivens actions against
individual federal employees in the first place.
Id. at 1090. The Seventh Circuit
pointed out that “when, in the wake of Bivens, Congress adopted the Westfall Act
to permit the Attorney General to substitute the United States as a defendant in lieu
of a federal employee, it prohibited this step when the plaintiff’s claim rests on the
Constitution.”
Id. (citing
28 U.S.C. § 2679(b)(2)(A)). The Seventh Circuit
concluded, “[t]his leaves the FTCA as a means to seek damages for common-law
torts, without regard to constitutional theories.”
Id.
Fourth, as we explain later, plaintiff Shivers failed to exhaust his
constitutional Bivens claim against the prison-employee defendants. Now that his
constitutional claim under Bivens is dismissed, Shivers cannot back-door into this
case his constitutional claim on the theory that the discretionary function defense is
precluded as to his FTCA state-law tort claim simply because he alleges the prison
employees’ tortious acts were also unconstitutional. At bottom, Shivers cannot, by
alleging a constitutional violation, evade this Court’s controlling Cohen precedent
Nurse v. United States,
226 F.3d 996, 1002 (9th Cir. 2000). These four other Circuits have
generally concluded that the discretionary function exception does not categorically bar FTCA
tort claims where the challenged government conduct or exercise of discretion also violated the
Constitution. While the Seventh Circuit is in the minority, we find its reasoning and analysis to
be more persuasive.
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that inmate-classification and housing-placement decisions “exemplif[y] the type
of case Congress must have had in mind when it enacted the discretionary function
exception.” Cohen,
151 F.3d at 1344. 6
Shivers’s flawed reasoning is also illustrated by how his constitutional-claim
exclusion rule would work in practice. As mentioned earlier, to prove an FTCA
tort claim, a plaintiff, like Shivers, must show negligence under state law. Yet to
defeat the United States’s discretionary function defense to that state-law claim, a
plaintiff would have the burden to prove the challenged tortious conduct also
violated the Eighth Amendment. Here that means Shivers must prove the prison
employees acted with deliberate indifference to a known substantial risk of serious
harm to the plaintiff. 7 Both types of claims—state tort law and federal
constitutional law—would need to be tried in the singular FTCA case. And the
district court would have to instruct the jury that, even if the plaintiff proves the
6
To be clear, deciding whether the district court properly dismissed Shivers’s FTCA tort
claim—as barred by the discretionary function exception—does not depend upon whether
Shivers did or did not file a Bivens claim. Even if Shivers had never filed a Bivens claim, the
district court still properly dismissed his FTCA tort claim as barred by the discretionary function
exception. We mention the “back-door” reentry of Shivers’s Bivens claim only because he did
file a Bivens claim that is now dismissed for failure to exhaust.
7
Federal constitutional law requires that to state an Eighth Amendment claim, a plaintiff
must show the prison employee acted with deliberate indifference to a known substantial risk of
serious harm to the plaintiff, which requires that the prison employee “actually (subjectively)
knew that an inmate faced a substantial risk of serious harm.” See, e.g., Mosley v. Zachery,
966
F.3d 1265, 1270 (11th Cir. 2020) (alterations accepted). This is far different from a negligence
claim under state law.
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prison employees were negligent under state law, the discretionary function
defense bars that state-law claim against the United States unless the plaintiff also
proves his federal constitutional claim that the same prison employees were
deliberately indifferent to a substantial risk of serious harm and thereby violated
his clearly established Eighth Amendment rights.8
Fifth and finally, we recognize Shivers cites dicta in Denson v. United
States,
574 F.3d 1318 (11th Cir. 2009), arguing in that case we “endorsed” the
view that because “government officials lack discretion to violate constitutional
rights,” the discretionary function defense would not be available to the United
States in an FTCA case. Supp. Reply Br. at 4–5 (quoting Denson,
574 F.3d at
1336–37) (internal quotation marks omitted). Two observations.
First, Denson spoke of a successfully established Bivens claim in the same
case, not a dismissed Bivens claim for failure to exhaust. Second, Shivers does not
8
Shivers and the Dissent cite Owen v. City of Independence,
445 U.S. 622,
100 S. Ct.
1398 (1980), for the proposition that the government has no discretion to violate the
Constitution, but that is not an FTCA case. The plaintiff Owen, a discharged employee, brought
a
42 U.S.C. § 1983 constitutional claim against the City, the City Manager, and the City Council
members for a violation of his Fourteenth Amendment rights because he was discharged without
notice of reasons and a hearing.
Id. at 624, 629–30, 100 S. Ct. at 1402, 1404–05. In a five–four
decision, the Supreme Court concluded that the City was not immune from suit under § 1983 for
constitutional violations, that § 1983 “creates a species of tort liability that on its face admits of
no immunities,” and that the City may not assert the good faith of its officers as a defense. Id. at
635–39, 100 S. Ct. at 1407–09 (quotation marks omitted).
Unlike Owen, this case involves § 2680(a)’s statutory discretionary function defense to
the FTCA liability that creates a broad exception to the FTCA’s waiver of sovereign immunity.
The 1980 Owen decision was also well before the 1991 Gaubert decision that instructed courts
on precisely how to determine if a “function or duty” was discretionary for purposes of
§ 2680(a). Owen does not support Shivers’s position.
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contend that this Court’s statement in Denson was a holding, nor could he contend
as much. In Denson, an airplane passenger brought suit: (1) against the customs
officials under Bivens for intrusively searching her without probable cause, in
violation of her Fourth and Fifth Amendment rights; and (2) against the United
States under the FTCA, primarily based on Florida tort law.
574 F.3d at 1323,
1333. Ultimately, the district court concluded that the Bivens claims were barred
by
28 U.S.C. § 2676 and that the plaintiff failed to prove her FTCA claim because
she did not show that the customs officials committed the state-law torts she
alleged.
Id. at 1333–35. The district court’s rulings were not based on § 2680(a)’s
discretionary function exception. See id.
On appeal, this Court determined that (1) the plaintiff’s Bivens claim failed
because she did not show that the customs officials violated the Fourth
Amendment, and (2) the FTCA claim failed because her state-law tort claims were
barred by the Supremacy Clause. See id. at 1344–45. This Court concluded that
“we need not consider the applicability of the discretionary function exception and
whether jurisdiction exists to entertain them.” Id. at 1345. As Shivers concedes,
Denson’s comments on the discretionary function defense’s applicability to
unconstitutional tortious conduct are merely dicta. And we have not applied
Denson’s dicta regarding the discretionary function defense in any subsequent
published opinion.
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For all of these reasons, we affirm the district court’s dismissal of Shivers’s
FTCA state-law tort claim as barred by § 2680(a)’s discretionary function defense.
III. BIVENS CLAIM
The Prison Litigation Reform Act (“PLRA”) requires prisoners to exhaust
all available administrative remedies before bringing a Bivens claim. See 42
U.S.C. § 1997e(a). Because the failure to exhaust is “treated as a matter in
abatement and not an adjudication on the merits,” the district court may consider
facts outside the pleadings “so long as the factual disputes do not decide the merits
and the parties have sufficient opportunity to develop a record.” Bryant v. Rich,
530 F.3d 1368, 1376 (11th Cir. 2008) (footnote omitted).
“[D]eciding a motion to dismiss for failure to exhaust administrative
remedies is a two-step process.” Turner v. Burnside,
541 F.3d 1077, 1082 (11th
Cir. 2008). First, the court evaluates the factual allegations in the motion to
dismiss and the response.
Id. If they conflict, the court accepts the plaintiff’s
version as true.
Id. “If, in that light, the defendant is entitled to have the complaint
dismissed for failure to exhaust administrative remedies, it must be dismissed.”
Id.
Second, if the complaint would not be subject to dismissal, “the court then
proceeds to make specific findings in order to resolve the disputed factual issues
related to exhaustion.”
Id.
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A plaintiff must follow a four-step process to exhaust his administrative
remedies with the BOP. See
28 C.F.R. §§ 542.13(a), 542.14(a), 542.15(a). Here,
the only step at issue is the fourth and final step: the appeal to the BOP’s General
Counsel at the Central Office in Washington, D.C. (BP-11 form). See § 542.15(a).
The inmate must “date and sign the Appeal,” § 542.15(b)(3), and “a Request or
Appeal is considered filed on the date it is logged into the Administrative Remedy
Index as received,”
28 C.F.R. § 542.18.
First, Shivers argues that the district court erred by engaging in fact-finding
without giving him adequate opportunity to conduct discovery to verify whether he
submitted his BP-11 form. We disagree. 9 Shivers had adequate opportunity to
develop the record on his Bivens claim; indeed, he obtained declarations and
attached them to his response to the government’s motion to dismiss. See Bryant,
530 F.3d at 1377. Further, as Shivers did not request an evidentiary hearing and
the district court dismissed his Bivens claim without prejudice, the district court
was within its discretion to “resolve material questions of fact on submitted papers
for the PLRA’s exhaustion of remedies requirement.” See
id. at 1377 n.16.
9
We review a dismissal for failure to exhaust administrative remedies under 42 U.S.C.
§ 1997e(a) de novo, but we review the district court’s findings of fact related to exhaustion for
clear error. Alexander v. Hawk,
159 F.3d 1321, 1323 (11th Cir. 1998); see Bryant,
530 F.3d at
1377.
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Second, Shivers claims the district court’s finding that he failed to file his
BP-11 form was clearly erroneous. It was not; substantial evidence supports the
district court’s finding. The government submitted a declaration by a BOP
paralegal specialist stating that “Shivers failed to submit his appeal at the Central
Office level.” The declaration included an exhibit showing no entry of a BP-11
form in the BOP’s SENTRY system. Because an appeal “is considered filed on the
date it is logged into the Administrative Remedy Index as received,” the district
court could rely on the declaration and exhibit. See § 542.18. Further, the BP-11
form attached to Shivers’s declaration, which he declared was a “true and correct
copy” of the form he submitted, was unsigned. Therefore, the district court
correctly concluded that Shivers’s unsigned form would not have been acceptable
even if it had been received by the Central Office. See § 542.15(b)(3).
IV. CONCLUSION
In sum, we affirm (1) the district court’s dismissal of Shivers’s FTCA claim
as barred by the discretionary function exception in
28 U.S.C. § 2680(a), and
(2) the district court’s dismissal without prejudice of Shivers’s Bivens claim for
lack of subject matter jurisdiction.
AFFIRMED.
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WILSON, Circuit Judge, concurring in part and dissenting in part:
I concur with the majority in affirming the district court’s dismissal of
Shivers’s Bivens 1 claim for failure to exhaust. I disagree with the majority’s
decision on the matter of first impression in this court—whether the discretionary
function exception shields a government employee who violates the Constitution
from liability under the Federal Tort Claims Act (FTCA). The majority holds that
a “prisoner’s FTCA tort claim based on the government’s tortious abuse of [a
discretionary] function—even unconstitutional tortious abuse—is barred by the
statutory discretionary function exception, as written and enacted.” Maj. Op. at 16
(emphasis omitted and added). I disagree. By violating the Constitution, a
government employee necessarily steps outside his permissible discretion—and
thus outside the discretionary function exception’s protection. Accordingly, I
would join most of our sister circuits who have reached this issue and hold that the
discretionary function exception does not shield the government from FTCA
liability based on unconstitutional conduct.
The discretionary function exception precludes “[a]ny claim . . . based upon
the exercise or performance or the failure to exercise or perform a discretionary
function or duty on the part of . . . an employee of the Government, whether or not
1
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388
(1971).
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the discretion involved be abused.”
28 U.S.C. § 2680(a). Congress created the
exception to prevent “judicial second-guessing of legislative and administrative
decisions grounded in social, economic, and political policy through the medium of
an action in tort.” United States v. Varig Airlines,
467 U.S. 797, 814 (1984)
(internal quotation marks omitted). Thus, “decisions that involve judgment
grounded in these considerations fall within the exception.” Ochran v. United
States,
117 F.3d 495, 500 (11th Cir. 1997). But the exception “applies only to
conduct that involves the permissible exercise of policy judgment.” Berkovitz v.
United States,
486 U.S. 531, 539 (1988) (emphasis added).
As the majority explained, we follow the two-prong Gaubert 2 test to
determine whether the discretionary function exception protects a certain type of
conduct. For the first prong, we ask whether “the nature of the conduct . . .
involves an element of judgment or choice.” Douglas v. United States,
814 F.3d
1268, 1273 (11th Cir. 2016) (internal quotation mark omitted). And for the second
prong, we ask whether the judgment or choice “is of the kind that the discretionary
function exception was designed to shield.” Gaubert,
499 U.S. at 322–23. I
disagree with the majority’s position that “[o]nly when a federal employee acts
contrary to a specific prescription in federal law—be it a statute, regulation or
policy—does the discretionary function not apply.” Maj. Op. at 12. That inquiry
2
United States v. Gaubert,
499 U.S. 315 (1991).
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is relevant only to whether inmate housing decisions generally satisfy the first
prong of the Gaubert test. See Gaubert,
499 U.S. at 322 (“The requirement of
judgment or choice is not satisfied if a ‘federal statute, regulation, or policy
specifically prescribes a course of action for an employee to follow,’ because ‘the
employee has no rightful option but to adhere to the directive.’” (quoting
Berkowitz,
486 U.S. at 536)).
Here, there is no dispute over whether inmate housing decisions generally
satisfy the first prong of Gaubert. We applied Gaubert’s two-part test in Cohen
and determined that, generally, prison officials’ decisions about inmate placement
are protected by the discretionary function exception. Cohen v. United States,
151
F.3d 1338, 1342 (11th Cir. 1998). But Cohen did not present us with the question
here: is a prison official’s decision about inmate placement protected by the
discretionary function exception when a plaintiff alleges that the decision was not
just tortious, but also violated the Constitution?
The answer must be no. The government “has no discretion to violate the
Federal Constitution; its dictates are absolute and imperative.” See Owen v. City of
Independence,
445 U.S. 622, 649 (1980) (internal quotation marks omitted); see
also Denson v. United States,
574 F.3d 1318, 1337 (11th Cir. 2009) (noting that
“government officials lack discretion to violate constitutional rights”). And the
discretionary function exception protects only conduct that involves “the
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permissible exercise of policy judgment.” Berkovitz,
486 U.S. at 537, 539
(emphasis added). Thus, if government employees violate the Constitution, they
are necessarily—and impermissibly—acting outside the scope of their discretion,
rather than merely abusing the discretion they have. The discretionary function
exception does not protect such extra-discretionary conduct.
The majority characterizes this conclusion as an “extra-textual
‘constitutional-claims exclusion.’” Maj. Op. at 10. The majority also claims that
“[t]he inquiry is not about how poorly, abusively, or unconstitutionally the
employee exercised his or her discretion but whether the underlying function or
duty itself was a discretionary one.” Maj. Op. at 11–12. But these conclusions
ignore Supreme Court precedent interpreting government officials’ scope of
discretion to exclude impermissible and unconstitutional conduct. See Berkovitz,
486 U.S. at 537, 539; see also Owen,
445 U.S. at 644–50.
A deeper look at Owen reveals the crucial flaw in the majority’s
interpretation of the discretionary function exception. There, the Supreme Court
evaluated whether a common-law immunity for “discretionary” functions could
protect municipalities against
42 U.S.C. § 1983 claims where the municipalities’
employees acted in good faith. 445 U.S. at 644–50. The Court explained that this
immunity doctrine was rooted in the concept of separation of powers; it served to
“prevent[] courts from substituting their own judgment on matters within the
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lawful discretion of the municipality.” Id. at 649. But the Court explained that this
“discretionary” function immunity could not shield a municipality in a § 1983
action alleging unconstitutional conduct because a municipality has no “discretion”
to violate the Constitution. Id.
The FTCA’s discretionary function exception is similarly based on
separation-of-powers principles. Like the common-law’s discretionary function
immunity, the exception serves to prevent “judicial second-guessing of legislative
and administrative decisions grounded in social, economic, and political policy.”
See Varig Airlines,
467 U.S. at 814 (internal quotation marks omitted). The
contexts are thus well aligned. And because there is no discretion to violate the
Constitution, unconstitutional conduct is necessarily outside the scope of the
discretionary function exception, just like it is outside the scope of discretionary
function immunity at common law. Therefore, the discretionary function
exception likewise cannot shield the United States in an FTCA case where the
tortious conduct at issue also allegedly violates the Constitution.
This conclusion is not revolutionary. This court stated as much in Denson,
where we acknowledged that “a government official is not[] ‘exercis[ing] or
perfom[ing], or . . . fail[ing] to exercise or perform a discretionary function or
duty’” when he violates the Constitution.
574 F.3d at 1337 n.55 (quoting
§ 2680(a)). We also indicated in Denson that the discretionary function exception
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would not be an available defense for the United States in an FTCA case if the
plaintiff had successfully established a constitutional violation in a Bivens claim
based on the same conduct. Id. Although these statements were dicta, they
support the point that this court has interpreted the discretionary function exception
to exclude protection for unconstitutional conduct before.
And virtually every other circuit to address the issue has concluded, based
on the same reasoning, that the discretionary function exception cannot provide
blanket immunity for tortious conduct that also violates the Constitution. See
Loumiet v. United States,
828 F.3d 935, 938 (D.C. Cir. 2016) (holding that the
discretionary function exception does not “categorically bar FTCA tort claims
where the challenged exercise of discretion allegedly exceeded the government’s
constitutional authority to act”); Limone v. United States,
579 F.3d 79, 102 (1st
Cir. 2009) (holding that allegedly unconstitutional conduct falls outside the scope
of the FTCA’s discretionary function exception); Raz v. United States,
343 F.3d
945, 948 (8th Cir. 2003) (per curiam) (same); Nurse v. United States,
226 F.3d
996, 1002 (9th Cir. 2000) (holding that although the FTCA’s discretionary function
exception would generally protect the creation of policies and rules, government
actors do not have discretion to create unconstitutional policies); see also Pooler v.
United States,
787 F.2d 868, 871 (3d Cir. 1986) (noting in dicta that the
discretionary function exception would not apply if a complaint alleged that
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government officials’ conduct violated the Constitution because “federal officials
do not possess discretion to commit such violations”), cert denied,
479 U.S. 849
(1986), abrogated on other grounds by Millbrook v. United States,
569 U.S. 50
(2013).
The majority joins the one circuit that has gone the other way. In Linder v.
United States, the Seventh Circuit dismissed the idea that the discretionary
function exception does not bar FTCA claims involving allegations of
unconstitutional conduct.
937 F.3d 1087, 1090 (7th Cir. 2019), petition for cert.
filed (Mar. 2, 2020) (No. 19-1082). In its view, “the theme that ‘no one has
discretion to violate the Constitution’ has nothing to do with the Federal Tort
Claims Act, which does not apply to constitutional violations.”
Id. The FTCA
makes the United States liable for state law torts as a “private person” would be.
Id. (quoting
28 U.S.C. § 1346(b)(1)). So, because “[t]he Constitution governs the
conduct of public officials, not private ones,” the FTCA is only “a means to seek
damages for common-law torts, without regard to constitutional theories.” See
id.
This logic is unpersuasive. The Seventh Circuit’s analysis assumes that
evaluating a complaint’s constitutional allegations transforms the substance of an
FTCA claim from state tort law to constitutional law. The majority makes the
same logical error, claiming that an unconstitutional-conduct limitation is
incompatible with the FTCA because it was not created “to address constitutional
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violations at all but, rather, to address violations of state tort law . . . .” See Maj.
Op. at 11. But as the District of Columbia Circuit explained in Loumiet:
A plaintiff who identifies constitutional defects in the conduct
underlying her FTCA tort claim—whether or not she advances a Bivens
claim against the individual official involved—may affect the
availability of the discretionary-function defense, but she does not
thereby convert an FTCA claim into a constitutional damages claim
against the government; state law is necessarily still the source of the
substantive standard of FTCA liability.
828 F.3d at 945–46. In other words, we consider the allegations of
unconstitutional conduct only as “negating the discretionary function defense,” not
as part of the substantive FTCA claim. See Limone, 579 F.3d at 102 & n.13. So
the FTCA claim still addresses only “violations of state tort law committed by
federal employees”; it does not “address [a defendant’s] constitutional violations.”
See Maj. Op. at 11. It remains only “a means to seek damages for common-law
torts.” Id. at 17 (quoting Linder, 937 F.3d at 1090).
For example, allegations that a prison official’s negligent inmate housing
decision violated the Eighth Amendment show that the prison official acted outside
the scope of his typical discretion to make inmate housing decisions. If
sufficiently alleged, such allegations would preclude application of the
discretionary function exception, no matter if the plaintiff also brought a viable
Bivens claim. The plaintiff’s FTCA claim would move forward based on the
allegations of negligence; if those allegations are proven, the government would be
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held liable as a “private person” would be. See § 1346(b)(1). This interpretation
of the discretionary function exception thus does not provide a “back door” for a
plaintiff’s failed Bivens claim. The FTCA and Bivens provide different remedies
against different parties under different substantive law. When evaluating the
merits of an FTCA claim, state tort law still governs any liability determination,
only the United States can be held liable, and the only available remedies are those
provided by the FTCA. Whether a plaintiff sufficiently alleges or even brings a
Bivens claim is thus completely irrelevant to that analysis.
The majority claims that the practical effect of this would be that, to defeat
the discretionary function defense, a plaintiff must prove the negligent conduct
under state law and the constitutional violation in a single FTCA case. So even
where no constitutional claim proceeds to trial, the plaintiff must prove a
constitutional claim. Maj. Op. at 17. But as already stated, whether the plaintiff
brings a constitutional claim is irrelevant, and the plaintiff would not be required to
prove a constitutional claim. Proving that the government officials’ conduct was
unconstitutional is relevant only to whether the discretionary function exception
applies.
Further, I do not share the majority’s concerns with how this “would work in
practice.” See Maj. Op. at 18. It is not unusual for jurisdictional issues to proceed
to trial alongside merits issues. For example, a plaintiff may need to introduce
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evidence at trial to prove its standing. In such cases, the district court instructs the
jury on how to properly—and separately—assess the jurisdictional and merits
issues. Put simply, district courts are well-equipped to craft jury instructions on
how to separately evaluate the jurisdictional issue (whether the discretionary
function exception immunizes the United States from suit) and the merits issue
(whether the defendants were negligent under Florida law).
While I would hold that the discretionary function exception does not shield
the government from FTCA liability based on unconstitutional conduct, the mere
assertion of a constitutional violation cannot be enough to preclude application of
the exception at the motion-to-dismiss phase. The allegations supporting a
constitutional violation must be plausible. Thus, I would vacate the district court’s
dismissal of Shivers’s FTCA claim and remand the case to the district court to
decide in the first instance whether Shivers plausibly alleged an Eighth
Amendment violation, thereby rendering the discretionary function exception
inapplicable to his FTCA claim.
33
