Brewington v. United States

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

JEFFREY BREWINGTON CASE NO. 2:22-CV-01184

VERSUS JUDGE JAMES D. CAIN, JR.

USA MAGISTRATE JUDGE KAY

MEMORANDUM RULING

Before the Court is a Rule 12(b)(1) Motion to Dismiss (Doc. 17), filed by the

defendant, the United States of America, wherein the Government asserts federal sovereign

immunity. Plaintiff opposes the motion. Docs. 27, 32. Defendant has replied. Doc. 34.

I. BACKGROUND

This lawsuit arises from injuries that Plaintiff allegedly sustained on November 21,

2019, from an attack by rival gang members following his assignment at the Federal

Correctional Institution in Oakdale, Louisiana (“FCI Oakdale”) to general population. Doc.

1, pp. 2–4. According to Plaintiff, he informed the screening officer at FCI Oakdale that he

was a member of the Aryan Brotherhood (“AB”). Id. at 2. Plaintiff avers that he informed

the screening officer that as an AB he should be separated from the Norteños gang. Id.

After his screening interview, Plaintiff claims he was brought to his cell, at which point he

proceeded to the communal area for mealtime where he was attacked by a member of the

Norteños. Doc. 25, p. 3. Plaintiff alleges the attacker used razor blades to cause injuries to

his face, head, and other parts of his body. Id. at 4. On May 3, 2022, Plaintiff filed suit

under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 267 et seq., against

the Government claiming $1,038,292.98 in compensatory damages for pain and suffering,

mental anguish, medical expenses, disfigurement, permanent scarring, and lost earning

capacity. Id. at 3–4.

II. LEGAL STANDARD

Rule 12(b)(1) of the Federal Rules of Civil Procedure provides: “Every defense to

a claim for relief in any pleading must be asserted in the responsive pleading if one is

required. But a party may assert the following defenses by motion: (1) lack of subject-

matter jurisdiction. . . .” A court may base its disposition of a motion to dismiss under Rule

12(b)(1) on: (1) the complaint alone; (2) the complaint supplemented by undisputed facts;

or (3) the complaint supplemented by undisputed facts plus the court’s resolution of

disputed facts. Robinson v. TCI/US West Communications, Inc., 117 F.3d 900 (5th Cir.

1997) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981), cert. denied, 454

U.S. 897 (1981)). Courts may consider affidavits and exhibits submitted in connection with

a Rule 12(b)(1) motion to dismiss. Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172

(5th Cir. 1994). Once challenged with competent proof, the plaintiff must prove by a

preponderance of the evidence that the court has subject matter jurisdiction. Middle South

Energy, Inc. v. City of New Orleans, 800 F.2d 488, 490 (5th Cir. 1986).

III. LAW & ANALYSIS

The United States enjoys sovereign immunity from suit unless it has consented to

be sued. Truman v. United States, 26 F.3d 592, 594 (5th Cir.1994). The FTCA provides:

remedy against the United States . . . for injury or loss of property, or personal

injury or death arising or resulting from the negligent or wrongful act or

omission of any employee of the Government while acting within the scope

of his office or employment . . . .

28 U.S.C.A. § 2679(b)(1). Though “[t]he 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,” e.g., Dickson v. United

States, 11 F.4th 308, 312 (5th Cir. 2021), the FTCA’s “waiver, however, is subject to

various exceptions which preserve the Government’s sovereign immunity,” e.g., id. In this

motion, the Government argues that one of these exceptions applies, i.e., the “discretionary

function exception” (“DFE”), 28 U.S.C. § 2680(a). Doc. 17-1, p. 10–11. The DFE

provides:

Any claim based upon an act or omission of an employee of the Government,

exercising due care, in the execution of a statute or regulation, whether or not

such statute or regulation be valid, or based upon the exercise or performance

or the failure to exercise or perform a discretionary function or duty on the

part of a federal agency or an employee of the Government, whether or not

the discretion involved be abused.

28 U.S.C. § 2680(a). The Fifth Circuit observes that “[t]he [DFE] 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.” E.g., Dickson, 11 F.4th at 312. If the DFE applies, the Plaintiff’s claim must be

dismissed for lack of subject matter jurisdiction. See Powers v. United States, 996 F.2d

1121, 1126 (11th Cir.1993).

The “plaintiff has the burden of . . . establishing that the [DFE] does not apply.”

Spotts v. United States, 613 F.3d 559, 569 (5th Cir. 2010) (citing St. Tammany Par., ex rel.

Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d 307, 315 n. 3 (5th Cir. 2009)). To

determine whether the DFE applies courts use a two-part test: (1) whether the challenged

act involves an element of judgment or choice on the part of the employee; (2) whether the

judgment is of the kind that the discretionary function exception was designed to shield.

Dickson, 11 F.4th at 312 (internal quotations omitted) (quoting Spotts, 613 F.3d at 567–

68). Under the first part, “[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”; however, “if an employee

violates a mandatory directive in a federal statute, regulation, or policy, there will be no

shelter from liability because there is no room for choice and the action will be contrary to

policy.” E.g., id. (internal quotations omitted) (collecting cases). Under the second part, “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.

(citing United States v. Gaubert, 499 U.S. 315, 324 (1991)). Accordingly, “[i]n making

this determination, [courts] do not focus on the subjective intent of the government

employee or inquire whether the employee actually weighed social, economic, and political

policy considerations before acting. [Courts] focus on the nature of the actions taken and

on whether they are susceptible to policy analysis.” Ochran v. United States, 117 F.3d 495,

500 (11th Cir. 1997) (quoting Gaubert, 499 U.S. at 325)). When the first prong to the two-

part test is satisfied, courts presume the second prong is satisfied unless the plaintiff can

rebut that presumption showing that “the actions are not the kind of conduct that can be

said to be grounded in the policy of the regulatory regime.” Gaubert, 499 U.S. at 324–25.

Here, the Government argues that “[t]he decision to transfer Plaintiff to FCI

Oakdale, and to place him in general population falls squarely within the DFE,” which

preserves the Government’s sovereign immunity. Id. at 13. Moreover, the Government

argues that the Court lacks subject matter jurisdiction over Plaintiff’s FTCA claim because

it has not waived its federal sovereign immunity. Doc. 17-1, p. 2. On the other hand, the

Plaintiff argues that his complaint alleges violations of Bureau of Prisons (“BOP”) policy

and procedure and other mandatory directives,1 which precludes the DFE and thus does

not bar his claim under the FTCA. Doc. 27, p. 7–8. Specifically, Plaintiff argues that 18

U.S.C. §§ 4042, 4081, and 28 C.F.R. § 522.21(a) create mandatory rather than

discretionary obligations, and therefore render the DFE inapplicable to his claims. Doc. 27,

pp. 9–10, 13. Although Plaintiff provides no specific policy or procedure that requires

Plaintiff to be separated from the Norteños gang at FCI Oakdale, he claims that he requires

an opportunity to conduct discovery to find documents and information, if any, related

BOP’s policies and internal procedures.2 Id. at 9.

1 1) BOP staff failed to follow policies and regulations regarding proper inmate screening by placing him in the prison

housing unit where he was ultimately attacked by a rival gang; 2) failing to recognize that Mr. Brewington was a

member of the Aryan Brotherhood or “AB,” even though he informed the SIS office who conducted his initial

screening interview that he was an AB member; 3) further failing to recognize that Mr. Brewington was a member of

AB despite his prominent tattoos affiliated with AB, and despite that information being accessible in his central inmate

file during his screening; 4) failing to recognize that members of the AB needed to be separated from Norteños

members, pursuant to BOP policies and regulations; 5) failing to separate Mr. Brewington from Norteños members;

6) failing to safely house Mr. Brewington separately from rival gang members; and 7) failing to prevent Mr.

Brewington’s attackers from possessing razor blades.

2 Specifically, Plaintiff argues that such discovery would include BOP and FCI Oakdale procedures, policies, post

orders, guidelines, training manuals, protocols, institutional supplements, local procedures, employee

standards of conduct, instructions, work assignments, work schedules, policy memoranda, and other directives

regarding gang or separation orders. Plaintiff claims he is also entitled to reports, including but not limited to, any

A. 18 U.S.C. §§ 4042, 4081, and 28 C.F.R. § 522.21(a)

First, United States Code section 4042(a) provides:

(a) In general.—The Bureau of Prisons, under the direction of the Attorney

General, shall—

(1) have charge of the management and regulation of all Federal penal and

correctional institutions;

(2) provide suitable quarters and provide for the safekeeping, care, and

subsistence of all persons charged with or convicted of offenses against the

United States, or held as witnesses or otherwise;

(3) provide for the protection, instruction, and discipline of all persons

charged with or convicted of offenses against the United States . . . .

18 U.S.C.A. § 4042(a). The Fifth Circuit “recogniz[es] that . . . section 4042’s mandate to

protect prisoners [does not] define a non-discretionary course of action specific enough to

render the discretionary function exception inapplicable.”3 Garza v. United States, 161 F.

App'x 341, 343 (5th Cir. 2005) (citing Montez v. United States, 359 F.3d 392, 396 (6th

Cir.2004).

Second, United States Code section 4081 governs classification decisions:

The Federal penal and correctional institutions shall be so planned and

limited in size as to facilitate the development of an integrated system which

will assure the proper classification and segregation of Federal prisoners

according to the nature of the offenses committed, the character and mental

post-incident reports, summary reports, investigations, statements, reports regarding disciplinary actions,

recommendations made, and any other documents made regarding the events surrounding November 21, 2019. Such

discovery would allow Plaintiff to determine if, in fact, the BOP employees who screened and placed Plaintiff at his

cell location did indeed fail to adhere to any procedures, policies, or directives that would have kept him separate from

the Norteños or Nuestra Familia gang members who viciously attacked him.

3 See also Rich v. United States, 811 F.3d 140, 145 (4th Cir. 2015) (stating BOP retains discretion regarding the

implementation of Section 4042); Santana-Rosa v. United States, 335 F.3d 39, 44 (1st Cir. 2003) (Section 4042(a)’s

provisions “do not mandate a specific, non-discretionary course of conduct, but rather leave the BOP ample room for

judgment.”); Cohen v. United States, 151 F.3d 1338, 1343 (11th Cir. 1998) (“Section 4042 does not set forth any

required nondiscretionary actions.”); Calderon v. United States, 123 F.3d 947, 950 (7th Cir. 1997) (“Section 4042 sets

forth no particular conduct the BOP personnel should engage in or avoid while attempting to fulfill their duty to protect

inmates.”).

condition of the prisoners, and such other factors as should be considered in

providing an individualized system of discipline, care, and treatment of the

persons committed to such institutions.

Additionally, placement decisions are governed by Section 3261, which provides:

The [BOP] may designate any available penal or correctional facility that

meets minimum standards of health and habitability established by the

Bureau, whether maintained by the Federal Government or otherwise and

whether within or without the judicial district in which the person was

convicted, that the Bureau determines to be appropriate and suitable.

In Dickson, the Fifth Circuit stated that Sections 4081 and 3261

confer discretion on the BOP to classify prisoners and place them in

institutions in accordance with public policy. Thus, decisions regarding the

transfers and classifications of prisoners generally fall within the

discretionary function exception. The same is generally true for decisions to

place a prisoner within the general population of a specific institution.

11 F.4th at 313 (cleaned up) (collecting cases).

Third, Code of Federal Regulations section 522.21(a) states: “Immediately upon an

inmate's arrival, staff shall interview the inmate to determine if there are non-medical

reasons for housing the inmate away from the general population. Staff shall evaluate both

the general physical appearance and emotional condition of the inmate.” Plaintiff argues

that Section 522.21(a) requires that institutional staff “ensure that a newly arrived inmate

is cleared by the Medical Department and provided a social interview by staff before

assignment to the general population.” Doc. 27, p. 9–10. Plaintiff asserts that this directive

is not discretionary but compulsory, and, consequently, there is no waiver of sovereign

immunity. Id. at 10. Plaintiff claims that BOP fell short of adherence to Section 522.21(a)

by not conducting a sufficient interview to determine Plaintiffs affiliation with AB. Id. The

Government responds that 28 C.F.R. § 522.21(a) and related BOP Program Statement

5290.15 impart the BOP with discretion to place or house inmates within the facility. Doc.

34, p. 2. For the social interview, Program Statement 5290.15 required the screening officer

to review Plaintiff’s SENTRY file in the BOP database in order to determine whether he

should have been separated from others in the general population.4 The screening officer’s

unsworn declaration reveals that, prior to Plaintiff’s arrival, she reviewed Plaintiff’s

available records,5 which indicated that Plaintiff had no order of separation for conflicts

with any inmate at FCI Oakdale. Doc. 17-8, p. 2. Also, the screening officer found that

Plaintiff was not assigned to a Security Threat Group or Disruptive Group, which indicated

that he was not a verified member or associate of the California AB. Id. According to the

screening officer, once Plaintiff arrived at FCI Oakdale, Plaintiff was informed that the

yard was a Norteños yard, at which point the Plaintiff conveyed to the screening officer

that there was no reason he could not walk the yard. Id. The screening officer noted that

there were many other non-California AB inmates on the yard at Oakdale FCI. Id. Thus,

based on the information before her after conducting the social interview, it was the

screening officer’s judgment decision that Plaintiff should be housed in general

population.6 Accordingly, 28 C.F.R. § 522.21(a) and related BOP Program Statement

5290.15 are discretionary directives.

4Federal Bureau of Prisons, Intake Screening (Mar. 30, 2009), https://www.bop.gov/policy/progstat/5290_015.pdf.

5 In the SENTRY and TRUINTEL databases maintained by BOP.

6 A district court in Pennsylvania stated that “[Section 522.21(a) gives] prison officials a great deal of discretion in

determining whether new inmates should be housed with the general population. The regulations direct prison officials

to “evaluate” the new inmate's physical appearance and emotional condition in making this determination. The

regulations neither dictate results in particular cases nor specify particular factors that prison officials must employ in

determining whether to place a new inmate in the general population. Prison officials must make this decision on a

case-by-case basis. The decision is clearly one that involves judgment or choice.” Green v. United States, No. CIV.A.

94-5706, 1995 WL 574495, at *4 (E.D. Pa. Sept. 22, 1995).

In summary, the Court finds that 18 U.S.C. §§ 4042 and 4081, and 28 C.F.R. §

522.21(a) provided the BOP with discretion to decide whether to house Plaintiff in general

population at FCI Oakdale because these statutes and regulations require BOP officials to

consider numerous factors on a case-by-case basis when making its placement

determination. See Cohen, 151 F.3d 1343 (finding Sections 4042, 4081, 3621 do not

mandate any nondiscretionary conduct for BOP to follow in classifying and placing

prisoners). The first prong of the two-part test is met.

Under the second prong, the question is whether the Government’s discretion was

of the type that the DFE was designed to shield. Dickson, 11 F.4th at 312. Here, Plaintiff

argues that the Government has not articulated any public policy consideration but that the

Government incorrectly presumes the prison official’s acts are grounded in policy when

exercising their discretion. Doc. 27, p. 11. According to the United States Supreme Court,

“[w]hen established governmental policy, as expressed or implied by statute, regulation, or

agency guidelines, allows a Government agent to exercise discretion, it must be presumed

that the agent’s acts are grounded in policy when exercising that discretion.” Gaubert, 499

U.S. at 324. Moreover, Plaintiff, not the Government, has the “burden to demonstrate that

the discretionary function exception does not apply to his claim.” Dickson, 11 F.4th at 313

(citing St. Tammany Parish, 556 F.3d at 315). Plaintiff “must allege facts which would

support a finding that the challenged actions are not the kind of conduct that can be said to

be grounded in the policy of the regulatory regime.” Gaubert, 499 U.S. 315, 324–25.

Plaintiff has alleged no facts, for example, that suggest the BOP’s case-by-case decision to

house Plaintiff in general population is outside the scope of the DFE. See, e.g., Buchanan

v. United States, 915 F.2d 969, 972 (5th Cir. 1990). Furthermore, the screening officer’s

unsworn declaration shows that Plaintiff’s placement in general population was determined

by information derived from the SENTRY and TRUINTEL databases as well as the

screening interview, which considers “factors such as available resources, proper

classification of inmates, and appropriate security levels [that] are ‘inherently grounded in

social, political, and economic policy.’” See Rich, 811 F.3d at 146 (quoting Dykstra v. U.S.

Bureau of Prisons, 140 F.3d 791, 796 (8th Cir. 1998)).

Additionally, the Government claims that Plaintiff falsely asserted affiliation with

the California AB after his interview with the screening officer. Doc. 17-1, p. 8. To this

point, Plaintiff does not dispute the screening officer’s unsworn declaration that Plaintiff

failed to inform her that he was a member of the California AB. Doc. 34, p. 7. Furthermore,

Plaintiff signed a form on February 24, 2022, stating he has been affiliated with the

Michigan AB since 2007. Doc. 17-4, p. 7. Even if Plaintiff genuinely was a member of the

California AB, a determination to place in the Special Housing Unit would be discretionary

unless Plaintiff could show that a specific nondiscretionary policy or directive stated

otherwise. Ultimately, Plaintiff has failed to demonstrate that BOP’s decision pursuant to

18 U.S.C. §§ 4042, 4081, and 28 C.F.R. § 522.21(a) placing him in general population was

nondiscretionary or discretionary but not of a type that the DFE was designed to shield.

See Dickson, 11 F.4th at 312.

B. Plaintiff’s request for additional discovery

Additionally, Plaintiff asks the Court to deny the instant motion in lieu of additional

discovery that may produce a policy needed to overcome its burden to demonstrate that the

DFE does not apply to his claim. For such a request, Plaintiff “bears the burden of showing

its necessity.” Freeman v. United States, 556 F.3d 326, 341 (5th Cir. 2009). This means,

Plaintiff must allege “specific facts crucial to immunity which demonstrate[] a need for

discovery.” Freeman, 556 F.3d at 342 (internal quotations omitted) (quoting Kelly v. Syria

Shell Petroleum Dev. B.V., 213 F.3d 841, 852 (5th Cir.2000)). Plaintiff “is not entitled to

jurisdictional discovery if the record shows that the requested discovery is not likely to

produce the facts needed to withstand a Rule 12(b)(1) motion.” Id. (citing Williamson v.

U.S. Dep't of Agric., 815 F.2d 368, 382 (5th Cir. 1987)).

Here, Plaintiff argues that Special Investigative Agent David Deville

stated that in his experience, Norteños and California AB were kept separate

in BOP prisons because of ongoing conflicts between the two groups.

Essentially, it appears that there was an unwritten policy to keep the two

groups separate––in other words, that despite the absence of a written policy,

there nonetheless would be no element of judgment or choice in separating

inmates who members of those groups, as required by the [DFE].

Doc. 32, p. 2. On the other hand, the Government argues that at the time of Plaintiff’s

screening at FCI Oakdale, there were only two exceptions to the general rule of

discretionary assignment on inmates: “The Mexican Mafia/Sureños’ ongoing conflict with

the Texas Syndicate; and Barrio Azteca’s ongoing conflict with the Border Brothers.” Doc.

17-1, p. 3; 17-3; 17-4, p. 2.

The Court finds that additional discovery in this matter is unnecessary because any

mandatory directive or policy that Plaintiff not be housed with Norteños would be publicly

available at BOP’s website, e.g., “National STG conflicts in BOP,” doc. 17-3, or available

to Plaintiff through a Freedom of Information Act request at www.foia.gov. See Freeman,

556 F.3d at 342. Therefore, Plaintiff has not met his burden to demonstrate he is entitled to

additional discover to defeat the Government’s Rule 12(b)(1) motion to dismiss.

IV.CONCLUSION

For the reasons above, the Court will grant the Government’s Rule 12(b)(1) Motion

to Dismiss (Doc. 17).

THUS DONE AND SIGNED in Chambers on this 6th day of June 2023.

. = JAMES D. CAIN, oR C .

UNITED STATES DISTRICT JUDGE

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