Santos v. United States

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 21, 2006
• Docket: 05-60237
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D In the April 21, 2006 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _______________

m 05-60237 Summary Calendar _______________

REYDEL SANTOS,

Plaintiff-Appellant,

VERSUS

UNITED STATES OF AMERICA,

Defendant-Appellee.

____________________________________

Appeal From the United States District Court for the Southern District of Mississippi m 5:03-CV-507 _____________________________________

Before SMITH, GARZA, and PRADO, and intentional infliction of emotional distress Circuit Judges. (“i.i.e.d.”) brought under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et PER CURIAM:* seq. We affirm.

Reydel Santos appeals the dismissal, for I. want of jurisdiction, of his suit for negligence Santos was an inmate at the Federal Cor- rectional Institution in Yazoo City, Mississippi (“FCI Yazoo City”). During the time period * Pursuant to 5TH CIR. R. 47.5, the court has de- termined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. relevant to this action,1 Bureau of Prisons placed and from where the officers could see (“BOP”) regulations stated that “[a]ll areas of whether inmates were smoking; and (6) keep- Bureau of Prisons facilities and vehicles are no ing windows in the dormitories sealed and in- smoking areas unless specifically designated as capable of being opened to admit fresh air. a smoking area by the Warden as set forth in § Santos contends that as a result of his expo- 551.163.” 28 C.F.R. § 551.162 (2002). The sure to ETS, he has experienced headaches, regulations further provided that “[t]o the respiratoryproblems, sinus irritation, asthmatic maximum extent practicable nonsmoking episodes, bronchitis, conjunctivitis, ear aches, inmates shall be housed in nonsmoking living increased stress, and sleeplessness. He asserts quarters.” 28 C.F.R. § 551.163(c) (2002). that prison officials intentionally inflicted Pursuant to these regulations, all buildings at emotional distress by allowing him to be ex- FCI Yazoo City, including inmate dormitories, posed to ETS even though he had informed were designated as smoke-free areas. them that his father was terminally ill with emphysema and that he was scared of After exhausting available administrative becoming similarly ill because of ETS. Santos remedies with the Bureau of Prisons, Santos seeks $600,000 in damages on his negligence sued, alleging that despite these anti-smoking claims and $100,000 in damages for i.i.e.d. regulations, he was exposed to environmental tobacco smoke (“ETS”) in his housing unit at The government moved to dismiss for want FCI Yazoo City as a result of prison officials’ of subject matter jurisdiction pursuant to FED. negligence in (1) failing to enforce the no- R. CIV. P. 12(b)(1), and in the alternative for smoking regulations; (2) failing adequately to summary judgment pursuant to FED. R. CIV. P. staff the prison dormitories so there would be 56, arguing that the discretionary function ex- enough supervision to enforce the smoking ception to the FTCA’s waiver of sovereign im- ban; (3) failing appropriately to discipline munity bars Santos’s claims. The district court inmates caught smoking; (4) failing to provide granted the motion and dismissed with preju- a separate dormitory for nonsmoking inmates; dice. (5) removing the platforms on which correc- tional officers’ desks had previously been II. In this circuit,

1 Santos began serving his term in June 2002 We review de novo a dismissal for want of and filed his administrative complaint with the subject matter jurisdiction. Lack of subject Bureau of Prisons in November 2002. Because of matter jurisdiction may be found on any the jurisdictional administrative exhaustion require- one of the following bases: (1) the com- ment, June-November 2002 is thus the only time plaint alone; (2) the complaint supple- period covered by Santos’s suit. See 28 U.S.C. § mented by undisputed facts evidenced in 2675(a) (stating that an action cannot be instituted the record; or (3) the complaint supple- upon a claim against the United States for money mented by undisputed facts plus the court’s damages for an injury caused by a negligent or resolution of disputed facts. In examining wrongful act or omission of a government a Rule 12(b)(1) motion, the district court is employee “unless the claimant shall have first empowered to consider matters of fact presented the claim to the appropriate Federal agency and his claim shall have been finally denied which may be in dispute. Ultimately, a mo- by the agency . . . .”). tion to dismiss for lack of subject matter

2 jurisdiction should be granted only if it ap- bar a given suit, the alleged negligent acts or pears certain that the plaintiff cannot prove omissions must involve “an element of judg- any set of facts in support of his claim that ment or choice,” Gaubert v. United States, would entitle plaintiff to relief. 499 U.S. 315, 322 (1991), and they must con- stitute acts or decisions based on considera- Johnson v. Aramco Servs. Co., 2006 WL tions of public policy, id. at 323. Utilizing the 45849, at *1 (5th Cir. Jan. 10, 2006) (unpub- Gaubert guidelines, the district court deter- lished) (internal citations and quotations mined that each of Santos’s claims of negli- omitted). gence is barred by the discretionary function exception. The United States is immune from suit un- less it consents to be sued. United States v. The court noted that no law or regulation Testan, 424 U.S. 392, 399 (1976). “[T]he mandates that separate housing be provided terms of [the government’s] consent to be for nonsmoking inmates. Indeed, the relevant sued in any court define that court’s jurisdic- regulation called for separate housing only “to tion to entertain the suit.” Id. (internal cita- the extent practicable,” 28 C.F.R. § 551.- tions and quotations omitted). The Supreme 163(c) (2002), language that makes plain that Court “has long decided that limitations and the decision as to whether to provide separate conditions upon which the Government con- housing is left to the sound discretion of the sents to be sued must be strictly observed and prison administrators. Furthermore, the dis- exceptions thereto are not to be implied.” trict court stated that the decision whether to Lehman v. Nakshian, 453 U.S. 156, 161 provide separate housing for nonsmokers in- (1981) (internal citations and quotations omit- volves policy considerations such as economic ted). feasibility and efficient resource allocation.

Under the FTCA, the government has With regard to Santos’s claim about the waived sovereign immunity with regard to lack of enforcement of the no-smoking rules, suits based on the alleged negligent acts and the district court stated that BOP regulations omissions of its employees. That waiver, how- and FCI Yazoo City’s supplemental rules out- ever, is limited. The United States has ar- line disciplinary actions to be taken for viola- ticulated certain exceptions to its consent to be tions of the smoking ban, but noted that based sued in this area. Particularly relevant to this on United States v. Varig Airlines, 467 U.S. action, the waiver of immunity does not extend 797, 809 (1984), “the extent to which the BOP to “[a]ny claim based upon . . . [a government chooses to apply its resources to enforce the employee’s] failure to exercise or perform a regulation against smoking . . . and the extent discretionary function . . . .” 28 U.S.C. § to which the BOP chooses to apply its 2680(a). If the government’s conduct falls resources elsewhere . . . are discretionary within the discretionary function exception to choices made among many alternatives.” The the FTCA, a suit complaining of that action court further asserted that when an inmate is must be dismissed for lack of subject matter caught smoking, the “decision to implement jurisdiction. See Buchanan v. United States, disciplinary action is discretionary and gives 915 F.2d 969, 970 (5th Cir. 1990). the BOP room for judgment.” Id. (citing Cal- deron v. United States, 123 F.3d 947, 949-50 For the discretionary function exception to (7th Cir. 1997)).

3 Citing several cases that establish that in- violate another’s constitutional rights.” The ternal security is a matter normally left to the court explained that the Eighth Amendment discretion of prison officials, the district court offers no help to Santos in this action because asserted that Santos’s claim of negligence with the government has not waived its immunity regard to the removal of the raised platforms with regard to constitutional torts. See FDIC for correctional officers’ desks similarly fails v. Meyer, 510 U.S. 471, 486 (1994). As we under the discretionary function exception to stated in Gibson v. Federal Bureau of Prisons, the FTCA. Furthermore, the court noted that 121 Fed. Appx. 549, 551 (5th Cir. 2004) (per the associate warden at FCI Yazoo City or- curiam) (citing Correctional Servs. Corp. v. dered the windows of the facility sealed be- Malesko, 534 U.S. 61, 71-72 (2001)), an in- cause doing so allowed the heating, ventila- mate “may bring a[n] . . . action [under Bivens tion, and air conditioning systems to function v. Six Unknown Agents of the Federal Bureau more efficiently. Because no law or regulation of Narcotics, 40 U.S. 388 (1971),] against in- mandates that inmates be capable of opening dividual officers for a[n] alleged constitutional their windows, the court concluded that violation, but he may not bring an action whether to keep them permanently shut is a against the United States, the BOP, or BOP matter committed to the prison officials’ dis- officers in their official capacities as such cretion and that the officials were free to make claims are barred by the doctrine of sovereign the choice they did in consideration of the ef- immunity.” ficient operation of the facility. We agree with the district court in all re- Finally, the district court stated that San- spects. For the reasons stated in its thorough tos’s claim for i.i.e.d. is barred by the discre- Memorandum Opinion and Order entered on tionary function exception because “[i]f a de- March 7, 2005, the judgment is AFFIRMED. fendant can show that the tortious conduct in- volves a ‘discretionary function,’ a plaintiff cannot maintain an FTCA claim, even if the discretionary act constitutes an intentional tort under § 2680(h).” Gasho v. United States, 39 F.3d 1420, 1435 (9th Cir. 1994) (internal cita- tions omitted). Because Santos’s claim for i.i.e.d. is predicated on the same acts and omissions that formed the basis of his negli- gence claims, the court determined that the discretionary function exception to the FTCA is likewise applicable to that claim.

In an attempt to save his claims from the discretionary function exception, Santos re- news on appeal his argument that the acts of which he complains not only constitute negli- gence, but also violate the Eighth Amendment, rendering the discretionary function exception inapplicable because “no one has discretion to