Garza v. United States , 161 F. App'x 341 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 20, 2005
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 04-41672
LUIS ALEJANDRO GARZA,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant- Appellee.
Appeal from the United States District Court for
the Southern District of Texas
(USDC No. 102-CV-00154)
_________________________________________________________
Before REAVLEY, DAVIS and WIENER, Circuit Judges.
REAVLEY, Circuit Judge:*
Federal prisoner Luis Alejandro Garza appeals the district court’s dismissal of his
action brought under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. (“FTCA”) for
injuries sustained during a clash between rival gangs in a penitentiary recreation yard.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
Garza alleged that the assault on him resulted from the guard’s failure to patrol the yard
and disperse congregated inmates during the open recreation period as required by her
post orders. The district court dismissed for lack of subject matter jurisdiction, holding
that the discretionary function exception to the FTCA, found in 28 U.S.C. § 2680(a),
shielded the Government from liability. Reviewing the record de novo,1 we reverse and
remand, for the following reasons:
1. The Supreme Court has set forth a two-part test to determine whether the
discretionary function exception applies, thereby barring the claim. See
Berkovitz v. United States, 486 U.S. 531, 536-37, 108 S.Ct. 1954, 1958-59
(1988). For the exception to apply, the first prong requires that the
challenged governmental action be the product of “judgment or choice.”
United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 1273 (1991).
Under this prong, we determine whether a statute, regulation, or policy
mandates a specific course of action. Id. If such a mandate exists, the
discretionary function exception does not apply and the claim may move
forward. When no mandate exists, however, the governmental action is
considered discretionary and the first prong is satisfied.
The second prong requires that the judgment or choice be based on
“considerations of public policy.” Id. at 323, 111 S.Ct. at 1274 (quoting
1
Buchanan v. United States, 915 F.2d 969, 970 (5th Cir. 1990).
2
Berkovitz, 486 U.S. at 537, 108 S.Ct. at 1959). Under this prong, we
determine whether the judgment is “grounded in social, economic, or
political policy.” Gaubert, 499 U.S. at 323, 111 S.Ct. at 1273 (quoting
United States v. Varig Airlines, 467 U.S. 797, 813, 104 S.Ct. 2755, 2765).
If the judgment of the governmental official is based on any of these policy
considerations, then the discretionary function exemption applies and the
claim is barred.
2. There are two sets of governmental conduct challenged in this case. Garza
generally alleges that the Government was obligated to keep him safe and
free from harm while he remained incarcerated pursuant to 18 U.S.C. §
4042 and the Eighth Amendment to the United States Constitution and that
the Government breached this duty by failing to protect him from assault.
We join our sister circuits in recognizing that neither section 4042's
mandate to protect prisoners nor the Eighth Amendment’s prohibition
against cruel and unusual punishment define a non-discretionary course of
action specific enough to render the discretionary function exception
inapplicable. See Montez v. United States, 359 F.3d 392, 396 (6th Cir.
2004); Cohen v. United States, 151 F.3d 1338, 1342-43 (11th Cir. 1998);
Calderon v. United States, 123 F.3d 947, 950 (7th Cir. 1997). Thus,
because the Bureau of Prisons retains sufficient discretion in the means it
may use to fulfill any duties imposed under these federal laws, the
3
exception is triggered and this claim was properly dismissed.
3. Garza levels more specific claims against the conduct of the guard on duty,
Deborah Romero, alleging that her failure to follow the Post Orders
pertaining to patrolling, supervising, and prohibiting large groups of
inmates to gather was a proximate cause of his injuries. The question,
therefore, is whether the Post Orders specifically prescribe a course of
action that Romero was bound to follow.
Two instructions contained in the Post Orders are specifically at
issue here:
During closed movement, you will patrol the recreation
yard. You will monitor and inspect all security devices
and be alert for any physical security concerns or
weakness. Report all discrepancies and signs of
abnormal inmate activities immediately to the operations
lieutenant and/or the special investigation supervisor.
* * *
As the Recreation Patrol Officer you are responsible for
the supervision of inmates on the compound. Inmates
should not be allowed to gather in large groups.
The Post Orders also include the following language at the end of the
detailed morning and evening shift instructions:
NOTE: These post orders are issued as a guideline for
the officers assigned to this post, and are not intended to
describe in detail all of the officers [sic] responsibilities.
Good judgement [sic] and initiative are expected in all
situations.
4
4. With respect to the Post Order instruction to patrol the recreation yard, we find
that the instruction prescribes a set course of action for the post guard on duty
to follow to maintain order and safety during her shift. The instruction is
straightforward and unambiguous. During the closed movement period (when
inmates are restricted from moving about the institution), the post guard “will
patrol the recreational yard.” The only period the guard may refrain from this
action is during the brief open movement period (when inmates are allowed
movement about the institution, including entering and leaving the recreation
yard), during which other duties are prescribed. Romero had no discretion to
avoid patrolling the recreation yard during closed movement. To do so would
violate a specific directive of the penitentiary. Thus, the failure to adhere to
this provision is not protected by the discretionary function exception.
This conclusion is not in conflict with our holding in Buchanan v.
United States, 915 F.2d 969 (5th Cir. 1990). In Buchanan, we held that the
discretionary function exception shielded prison officials’ minute-to-minute
decision making during a riot because such a situation clearly called for
discretionary action that should not later be second-guessed by the courts. Id.
at 972. We did not believe that Congress meant for judges, through hindsight,
to second-guess the difficult decisions made by prison staff in the chaotic
circumstances of a prisoner uprising. Id. In this case, Garza’s complaints do
not rise from spontaneous decisions made during the emergent circumstances
5
of the gang assault but from Romero’s pre-assault deviation from a policy-
making decision that had already been made and set forth in the Post Orders.
That policy-making decision established a non-discretionary duty to patrol and
supervise the rec yard.
5. We do not find that the “Note” appended to the Post Orders infuses the “will
patrol” instruction with the element of discretion necessary to invoke the
discretionary function exception. The Post Orders are quite specific, providing
an hour-by-hour and, in some cases, minute-by-minute “to do” list covering
the post guard’s shift. There are numerous specific and unambiguous
directives in addition to the “will patrol” instruction. We interpret the Note’s
admonition to use good judgment and initiative in following the Post Orders
as enlarging the guards’ responsibility to do more than just check off the list
when more may be required to achieve the penitentiary’s overall objectives of
safety and order. When the Government sets forth extraordinarily detailed
instructions (which it presumably expects employees to follow to the letter)
that would otherwise clearly fall outside of the discretionary function
exception, it should not be allowed to sweep these directives back under the
shield by inserting a general “disclaimer.” Permitting this kind of
immunization clearly sidesteps the remedial objective of the FTCA by
allowing the exception to swallow the rule.
6. With respect to the Post Order instruction that inmates “should not be allowed
6
to gather in large groups,” we find that the permissive wording and lack of
specific directive as to what constitutes a large group permits discretionary
choice sufficient to satisfy the first prong of the Berkovitz-Gaubert test. While
Garza claims that the guards normally broke up groups of five or more
inmates, this alleged “custom” does not negate the guard’s prerogative to
decide whether fewer or more inmates may constitute a “large group” in a
given circumstance.
While the anti-congregating instruction permitted the post guard
discretion, this directive must still satisfy the second prong inquiry to be
afforded protection under the discretionary function exception. We conclude
that it does. The intent of the second-prong is clear: 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
when courts would otherwise defer to such policy-making. Gaubert, 499 U.S.
at 323, 111 S.Ct. at 1273. The case-by-case decision to permit inmates to
congregate or not depends on the balance of public and prisoner safety with
the need to permit prisoner interaction and socialization in the furtherance of
fair treatment and rehabilitation. We are satisfied that this discretionary
decision-making involves the weighing of competing policy considerations that
the discretionary function exception protects from judicial scrutiny.
Baldassaro v. United States, 64 F.3d 206, 211 (5th Cir. 1995).
7
We note that our conclusion as to the anti-congregating directive does
not relieve the Government of all potential responsibility with respect to
permitting a large group of inmates to get out of control. To the extent that
Garza is able to prove his allegations that Romero failed to patrol the yard as
required, her failure to even notice the group, rather than her alleged failure to
properly assess its size and potential danger, is the issue. That failure, along
with the failure to immediately report any “abnormal inmate activities,” is
actionable under the “will patrol” directive, which we have concluded falls
outside of the discretionary function exception.
7. Garza also asserts that the district court improperly found that Romero had not
failed to patrol the recreational yard as required. We agree. The district court
granted the Government’s motion to dismiss for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) but denied
the Government’s alternative Rule 12(b)(6) and summary judgment motions.
The only issue raised in the three alternative motions was whether the
discretionary function exception applied.
While the court was not limited to the complaints in making a 12(b)(1)
jurisdictional determination as to the discretionary function exception and was
free to review factual evidence,2 a finding on whether or not Romero patrolled
2
MDPhysicians & Assocs., Inc. v. State Bd. of Ins., 957 F.2d 178, 180-81 (5th
Cir. 1992).
8
the yard was not necessary to make this determination. The Government did
not make a proper Rule 56 motion and the attempted summary judgment
motion it did make was denied. Garza has not yet proved his factual
allegations, but he is not required to do so on a motion to dismiss. To the
extent that the district court’s analysis of the evidence constitutes a factual
finding on whether or not Romero patrolled the yard, it was improper at this
stage.
8. We agree with the district court’s dismissal of Garza’s claims that the
Government breached the duty to keep him safe and free from harm while he
remained incarcerated pursuant to 18 U.S.C. § 4042 and the Eighth
Amendment to the United States Constitution by failing to protect him from
assault. We also agree with the district court’s determination that the anti-
congregating directive falls within the discretionary function exception and
therefore affirm the dismissal of any claim based solely on the failure to
properly assess and break up the inmate group. Because the “will patrol”
instruction prescribes a set course of action for the post guard, the
discretionary function exception does not bar a cause of action based on
Garza’s allegation that Romero failed to patrol the recreational yard and that
such failure was a proximate cause of his injuries. Accordingly, we reverse
the district court’s dismissal and remand to the district court for full factual
determination on the merits.
9
REVERSED AND REMANDED.
10