Bryan Kerr Dickson v. United States of America

New Orleans, LA- Criminal defense lawyer represented defendant with a possession and production of child pornography charge.

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))).

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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

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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

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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

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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.

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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).

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"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

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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).

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