Idris Enlow v. United States

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 3, 2006
No. 05-13873 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-01539-CV-BBM-1
IDRIS ENLOW,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 3, 2006)
Before BLACK, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
I.
Idris Enlow pleaded guilty to drug and firearm charges and received a 90
month sentence. Prior to sentencing, he cooperated with prosecutors by testifying
against several federal defendants. Due to prison officials’ concerns for his safety,
the United States Bureau of Prisons (BOP), transferred Enlow to two other prisons
before finally moving him to the United States Penitentiary in Atlanta (USP-
Atlanta) on January 31, 2000. Less than three weeks later Enlow was assaulted by
3 other inmates. BOP officials at USP-Atlanta subsequently removed Enlow from
the general population and into a special housing unit while the assault was under
investigation. USP-Atlanta issued a threat assessment indicating that Enlow had
been labeled as an informant by inmates and recommending that he be transferred
to a more secure facility.
On July 20, 2000, Reginald Ammons, Associate Warden of Custody at USP-
Atlanta, released Enlow from the special housing unit and placed him back in the
general population. Ammons made the decision to move Enlow without reviewing
Enlow’s file, where he would have found the threat assessment. Three days later
and absent any provocation by Enlow, Enlow was stabbed multiple times by
another inmate.
Following an investigation of the incident, Ammons received an official
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reprimand for “endangering the safety of an inmate.” The reprimand letter
informed Ammons that such behavior “will not be tolerated.”
Enlow filed suit against the United States, alleging that the BOP was liable
under the Federal Tort Claims Act for negligence in transferring him out of the
special housing unit without first reviewing his file. Enlow also brought a breach
of contract claim alleging that the government breached his implied contract with
Enlow under the plea agreement. Enlow sought $2 million in damages for the
incident. After discovery Enlow filed a partial motion for summary judgment
based on his negligence theory, and the United States filed a cross motion for
summary judgment for lack of subject matter jurisdiction. The United States
argued that the discretionary function exception to the FTCA barred the claim, and
the BOP breached no duty of care. The district court ruled that Enlow’s FTCA
action was barred by the discretionary function exception to the FTCA.
Accordingly, the court granted summary judgment to the United States and
dismissed the entire case.
Enlow makes two arguments on appeal: (1) the district court erred when it
found that the discretionary function of the FTCA barred his negligence claim, and
(2) the district court erred in dismissing the entire complaint without addressing his
breach of implied contract claim. We review a district court’s grant of summary
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judgment de novo, applying the same standards of review as the district court.
Cohen v. United States, 151 F.3d 1338, 1340 (11th Cir. 1998).
II.
The district court did not err in holding that the discretionary function
exception to the FTCA barred Enlow’s claim. In order for a claim to fall within
the discretionary function exception of the FTCA, it must meet two requirements:
(1) the challenged decision must involve an element of choice, and (2) the
governmental decision must implicate an exercise of judgment grounded on
considerations of public policy. United States v. Gaubert, 499 U.S. 315, 322, 111
S. Ct. 1267, 1273 (1991); Cohen, 151 F.3d at 1340.
As to the first inquiry, “if a federal statute, regulation, or policy specifically
prescribes a course of action for an employee to follow,” and “the employee has no
rightful option but to adhere to the directive,” the conduct does not involve an
element of choice and therefore is not discretionary. Gaubert, 449 U.S. at 322, 111
S. Ct. at 1273 (internal marks omitted). In this case, the challenged BOP action is
Warden Ammon’s decision to transfer Enlow out of special housing and into the
general prison population without first reviewing his file. The district court
carefully reviewed and rejected each of Enlow’s arguments that various federal
statutes and BOP internal policies mandate a review of a prisoner’s file before
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transferring the prisoner out of special housing and into the general population.
Enlow does not rehash these arguments on appeal.
Enlow spends this portion of his brief arguing that the district court
improperly relied on evidence that did not support its conclusion. Specifically, a
BOP internal policy states: “The Warden may delegate authority to place an inmate
in administrative detention to Lieutenants. Prior to the inmate’s placement in
administrative detention, the Lieutenant is to review the available information and
determine whether the placement . . . is warranted.” The district court found that
the plain language of this policy requires “a review of the available information”
only “prior to” placing the inmate in administrative detention, rather than prior to
the inmate’s transfer out of administrative detention. The district court stated: “In
the absence of a clear mandate requiring the same review prior to the inmate’s
transfer out of administrative detention, the court finds that the BOP’s action in
this case was discretionary.”
The district court could have stopped there, but it continued by stating that
its finding was “further bolstered by the testimony of Gregory Duncan.” On appeal
Enlow focuses on the fact that the district court relied on testimony of Duncan
which, Enlow claims, “belies” the district court analysis. Because the district court
correctly found that the plain language of the internal prison policy does not
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mandate a review of the prison files, any dispute over the characterization of
Duncan’s testimony is irrelevant. Even if we agree with Enlow that “Duncan’s
testimony cannot be reasonably construed to mean that the BOP did not require an
Associate Warden review an inmate’s file” before transfer, that does not mean that
it was BOP policy to review files before transfer. Duncan merely testified that he
was “unaware” of a BOP policy mandating review of files, but that “normally” a
warden would review a file before transferring an inmate out of administrative
detention. Something that is “normally” done is not necessarily a policy, just like
being “unaware” of a policy does not show absence of the policy.
Enlow argues that the “factual context of this case . . . makes it clear that
such a policy existed.” According to Enlow, the fact that Ammons was
reprimanded shows that failure to review Enlow’s file must have been a policy
violation. Otherwise, according to Enlow, there is no reason for the reprimand.
Enlow offers no precedent to support this proposition. Moreover, the gist of
Enlow’s argument is that every time a federal employee is reprimanded for any
action, discretionary or not, the reprimand serves as evidence of an official policy,
and therefore the action was not discretionary. We cannot accept such circular
reasoning, which assumes that employees are only reprimanded for actions that
violate policy, and not discretionary actions. Such an argument is clearly
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untenable.
Enlow admits that “Federal Reporters are replete with cases holding that the
discretionary function exception bars claims arising from allegations that the
Bureau of Prisons negligently classified or transferred a prisoner.” However, he
argues that he is not challenging these holdings because “his claim rests on the
Associate Warden’s failure to read the threat assessment contained in [Enlow’s]
file before releasing him into the general prison population.” Enlow’s argument
separates the failure to read the threat assessment from the decision to transfer
Enlow out of the special housing unit. However, we find that Ammons’ failure to
read the threat assessment is inextricably linked to the decision to transfer Enlow.
Were we to find otherwise, we would grant Enlow an end-run around precedent
squarely opposed to his position. Cohen, 151 F.3d at 1345 (holding that the BOP’s
actions in classifying and placing prisoners in institutions falls within the
discretionary function exception); see also Santana-Rosa v. Untied States, 335 F.3d
39, 43 (1st Cir. 2003) (holding that decisions with regard to assignment of
prisoners to particular units must be viewed as falling within the discretionary
function exception). Considerations leading up to the decision to transfer are as
discretionary as the ultimate decision to transfer, absent a policy dictating
otherwise. See Cohen, 151 F.3d at 1340.
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Having satisfied the first inquiry, the second question in this case is whether
the decision to transfer an inmate from a special housing unit into the general
population implicates policy concerns. The case law makes clear that it does. In
Cohen we worried that accepting the plaintiff’s position would mean that:
anytime a prisoner is injured by another prisoner, he can bring an
action claiming that the BOP was negligent in classifying the
prisoner who committed the assault and placing him in the institution
at which the attack occurred, or in not removing that prisoner based
upon some prior incident, or in not restricting his movement, or in
not providing more guards, and so forth. Such second-guessing of the
BOP's discretionary decisions is the type of thing avoided by the
discretionary function exception, which is designed 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.”
Cohen, 151 F.3d at 1344 (quoting Gaubert, 499 U.S. at 323, 111 S.Ct. at 1273).
Enlow admits that “it is virtually black letter law that decisions concerning
the classification of inmates” implicate policy issues. However, he argues that “the
process by which these decisions are reached” does not implicate policy concerns
because “there was no policy function involved in the decision-making process.”
Again, we are not persuaded to see any analytical distinction between the ultimate
decision to transfer Enlow and the decisional process by which that ultimate
decision was reached. Both the final decision and the process which produced it
implicate the same policy issues concerning the classification of inmates. Enlow is
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trying to split hairs with a hammer. It just doesn’t work.
III.
As to Enlow’s second claim on appeal, we find the district court lacked
jurisdiction to hear the breach of contract claim. 28 U.S.C.A. § 1491(a)(1);
Friedman v. United States, 391 F.3d 1313, 1315 (11th Cir. 2004). Under the
Tucker Act, 28 U.S.C.A. § 1491(a)(1), the Court of Federal Claims has exclusive
jurisdiction over contract claims against the United States where the claim exceeds
$10,000. Id. Here, the claim is for $2 million. The fact that the district court’s
opinion does not seem to contemplate the contract claim is of no consequence.
Because this Court can consider jurisdictional issues for the first time on appeal,
and because we conclude that the district court did not have jurisdiction over the
contract claim, we find the district court properly dismissed that claim. See
Glickstein v. Sun Bank/Miami, N.A., 922 F.2d 666, 672 n.12 (11th Cir. 1991)
(holding that jurisdictional issues may be raised for the first time on appeal).
AFFIRMED.
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