Cosby v. United States Marshals Service , 520 F. App'x 819 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13897
Non-Argument Calendar
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D.C. Docket No. 5:09-cv-00192-CAR
JEANNIE L. COSBY,
Plaintiff - Appellant,
versus
UNITED STATES MARSHALS SERVICE,
Defendant,
UNITED STATES OF AMERICA,
Defendant - Appellee.
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Appeal from the United States District Court
for the Middle District of Georgia
________________________
(May 29, 2013)
Before HULL, JORDAN and KRAVITCH, Circuit Judges.
PER CURIAM:
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Jeannie Cosby, a prisoner proceeding pro se, appeals the district court’s
dismissal of her Federal Tort Claims Act (FTCA) suit for lack of subject matter
jurisdiction. After thorough review, we affirm.
Cosby sued the United States under the FTCA, 28 U.S.C. § 1346(b)(1). As
relevant to this appeal, she alleged: (1) the United States Marshals Service
(USMS) negligently failed to provide appropriate medical care and did not follow
transfer procedures for inmates with severe medical conditions; and (2) the Bureau
of Prisons (BOP) negligently failed to follow a doctor’s recommended course of
treatment, causing the partial amputation of her right foot. The district court
ordered the parties to brief whether the discretionary function exception of the
FTCA divested the court of subject matter jurisdiction. Upon review, the court
found that the USMS’s and BOP’s decisions about Cosby’s medical care
“inherently involve[d] an element of choice and [were] grounded in several policy
considerations.” Accordingly, it concluded that the discretionary-function
exception applied and dismissed the case for lack of subject matter jurisdiction.
Cosby now appeals.
We review de novo the district court’s dismissal for want of subject matter
jurisdiction. Ochran v. United States, 117 F.3d 495, 499 (11th Cir. 1997). “The
FTCA waives the United States government’s sovereign immunity from suit in
federal courts for the negligent actions of its employees.” Id. The discretionary
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function exception, however, exempts from this waiver claims “based upon the
exercise or performance or the failure to exercise or perform a discretionary
function or duty.” 28 U.S.C. § 2680(a).
We apply a two-prong test to determine the applicability of the discretionary
function exception. Where both prongs are met, the exception applies and the
court lacks subject matter jurisdiction. See U.S. Aviation Underwriters, Inc. v.
United States, 562 F.3d 1297, 1299 (11th Cir. 2009). The first prong asks whether
the challenged acts are “discretionary in nature” – that is, if they “involve an
element of judgment or choice.” Gaubert v. United States, 499 U.S. 315, 322
(1991) (internal quotation marks omitted). “[T]he first prong of the exception is
satisfied unless ‘a federal statute, regulation or policy specifically prescribes a
course of action for an employee to follow.’” OSI, Inc. v. United States, 285 F.3d
947, 952 (11th Cir. 2002) (quoting Berkovitz v. United States, 486 U.S. 531, 534
(1988)). The second prong instructs that “the exception protects only
governmental actions and decisions based on considerations of public policy.”
Gaubert, 499 U.S. at 323 (internal quotation marks omitted). “The focus of the
inquiry is not on the agent’s subjective intent in exercising the discretion conferred
by statute or regulation, but on the nature of the actions taken and on whether they
are susceptible to policy analysis.” Id. at 325. If the decision could objectively be
made on policy grounds within the discretion afforded the decisionmaker, then “we
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presume that the act was grounded in policy whenever that discretion is
employed.” OSI, Inc., 285 F.3d at 951. And the agent need not actually have
weighed policy considerations to be protected by the exception. Id. at 950-51.
Cosby argues that the USMS is liable under the FTCA for violating USMS
Directive for Prisoner Operations 9.4, which governs prisoner health. First, she
contends that the USMS negligently failed to provide adequate care for her foot
condition. Under that directive, “[t]he USMS will ensure that all USMS prisoners
receive medically necessary health care services,” including treatment for “limb-
threatening . . . conditions.” Directive 9.4, Prisoner Health Care, ¶ (C)(1).
Importantly, Cosby does not argue that she received no medical care, only that the
care she received was inadequate. Because Directive 9.4 does not “‘specifically
prescribe[] a course of action’” for USMS employees to follow when a prisoner
needs medical care, the decision about what specific type of care to provide is a
discretionary matter that satisfies the first prong of the exception. OSI, Inc., 285
F.3d at 952 (quoting Berkovitz, 486 U.S. at 534). The directive is also susceptible
to policy analysis because, in determining the precise course of medical treatment
to pursue, several policy considerations are relevant, including prison security, the
allocation of finite resources, and the logistics of prisoner transportation if transfer
to an off-site facility is an option. The second prong of the discretionary function
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exception is therefore satisfied, and the district court correctly concluded it lacked
subject matter jurisdiction to consider this issue. See Gaubert, 499 U.S. at 322-23.
Next, Cosby asserts that the USMS was negligent in transferring her to
several facilities instead of allowing her to remain at one until her medical
treatment was complete. But again, the discretionary function exception bars her
claim. Directive 9.4 outlines “Medical Clearance Requirements for Prisoner
Movement or Transfer” and provides that “USM[S] district management will
ensure proper arrangements are made to provide continuity of medical care for
USMS prisoners.” Directive 9.4, Prisoner Health Care, ¶ 9(a)(4). Although the
Directive sets forth “Requirements” for the transfer of prisoners requiring medical
care, the “proper arrangements” to be made in each individual case are necessarily
left to the discretion of USMS employees. See id. And those decisions are
susceptible to policy analysis because USMS officials must consider which
facilities have space available and the placement of the prisoner in a facility that
provides an appropriate level of security. Thus, the discretionary function
exception applies and the district court correctly dismissed this claim. See
Gaubert, 499 U.S. at 322-23; cf. Cohen v. United States, 151 F.3d 1338, 1345
(11th Cir. 1998) (“[T]he BOP’s actions in classifying prisoners and placing them in
institutions involve conduct or decisions that fall within the discretionary function
exception . . . .”).
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Finally, Cosby argues that the BOP is liable under the FTCA for violating 18
U.S.C. § 4042. That statute mandates that the BOP “provide for the safekeeping,
care and subsistence” of all persons in its custody. 18 U.S.C. § 4042(a)(2). We
have previously stated that “even if § 4042 imposes on the BOP a general duty of
care to safeguard prisoners, the BOP retains sufficient discretion in the means it
may use to fulfill that duty to trigger the discretionary function exception.” Cohen,
151 F.3d at 1342. Hence, the district court correctly dismissed this claim for lack
of subject matter jurisdiction.
For the foregoing reasons, the district court’s dismissal of Cosby’s claims
for want of subject matter jurisdiction is
AFFIRMED.
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