David A. Diehl v. United States

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NOT FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-10616

Non-Argument Calendar

____________________

DAVID A. DIEHL,

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 5:20-cv-00530-JLB-PRL

____________________

Before NEWSOM, LUCK, and LAGOA, Circuit Judges.

PER CURIAM:

David A. Diehl, a federal prisoner proceeding pro se, seeks

review of discovery orders and two dispositive orders resolving his

civil case against prison officials. In short, Diehl alleged that prison

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2 Opinion of the Court 24-10616

officials negligently assigned him a dangerous cellmate and that

one official battered him by pepper-spraying his cell following an

attack by his cellmate. The district court granted the government’s

motion to dismiss the negligent-cell-assignment claim after con-

cluding that it was barred by the Federal Tort Claims Act’s (FTCA)

discretionary-function exception. The court permitted discovery

on the FTCA battery claim. Ultimately, the district court granted

summary judgment to the government on the battery claim after

concluding that the undisputed facts surrounding the officer’s use

of force did not demonstrate that the force was objectively unrea-

sonable or so excessive as to overcome the presumption of good

faith afforded corrections officers under Florida law.

Diehl now appeals the dismissal of his negligent-cell-assign-

ment claim, arguing that the discretionary-function exception does

not apply here. He also appeals several discovery rulings: the strik-

ing of his discovery request as well as the denials of his motions to

extend the discovery deadline, to compel discovery, and for recon-

sideration. Finally, he appeals the grant of the government’s mo-

tion for summary judgment on his battery claim, contending that

there was a genuine issue of material fact. After careful review, we

affirm the district court’s orders.

I

Whether the government is entitled to application of the dis-

cretionary-function exception to the FTCA is a question of law that

we review de novo. Cohen v. United States, 151 F.3d 1338, 1340 (11th

Cir. 1998).

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The FTCA waives the United States’ sovereign immunity

from suit in federal courts for the negligent actions of its employees

taken “while acting within the scope of . . . employment, under cir-

cumstances where the United States, if a private person, would be

liable to the claimant in accordance with the law of the place where

the act or omission occurred.” 28 U.S.C. § 1346(b)(1); see Cohen,

151 F.3d. at 1340. However, the discretionary-function exception

precludes government liability for claims based on “the exercise or

performance or the failure to exercise or perform a discretionary

function or duty on the part of a federal agency” or government

employee. Cohen, 151 F.3d at 1340 (quoting 28 U.S.C. § 2680(a)). If

the discretionary-function exception applies, the claim must be dis-

missed for lack of subject matter jurisdiction. Id.

In determining whether the discretionary-function excep-

tion applies, we first consider “the nature of the conduct” and

whether it involves “an element of judgment or choice.” Id. at

1341. “Government conduct does not involve an element of judg-

ment or choice, and thus is not discretionary, if a federal statute,

regulation, or policy specifically prescribes a course of action for an

employee to follow.” Id. (citation modified). “The Supreme Court

has repeatedly said that the discretionary-function exception ap-

plies unless a source of federal law ‘specifically prescribes’ a course

of conduct.” Shivers v. United States, 1 F.4th 924, 931 (11th Cir. 2021)

(quoting United States v. Gaubert, 499 U.S. 315, 322 (1991)). “Sec-

ond, if the conduct involves the exercise of judgment, we must de-

termine whether that judgment is grounded in considerations of

public policy.” Cohen, 151 F.3d at 1341. “In making this

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4 Opinion of the Court 24-10616

determination, we do not focus on the subjective intent of the gov-

ernment employee or inquire whether the employee actually

weighed . . . political policy considerations before acting,” but ra-

ther evaluate whether the nature of the actions taken are suscepti-

ble to policy analysis. Id. Only if the plaintiff’s claim survives the

discretionary-function exception, do we address the merits of the

plaintiff’s argument. Martin v. United States, 605 U.S. 395, 402

(2025).

This Court has previously held that inmate housing-place-

ment decisions involve a discretionary function. Cohen, 151 F.3d at

1344 (11th Cir. 1998); Shivers v. United States, 1 F.4th 924, 929 (11th

Cir. 2021).

In Cohen, we held that the discretionary-function exception

applied to bar a suit alleging that the BOP negligently classified and

placed in a minimum-security prison an inmate who attacked and

seriously injured the plaintiff. 151 F.3d at 1339, 1344. First, we

concluded that, although 18 U.S.C. § 4042 imposes on the Bureau

of Prisons a general duty of care for prisoners, the BOP retained

sufficient discretion in the means it may use to fulfill that duty. Id.

at 1342–43. Second, we concluded that deciding how to classify

and place prisoners is “part and parcel of the inherently policy-

laden endeavor of maintaining order and preserving security

within our nation’s prisons.” Id. at 1344. We explained that—

[t]his case exemplifies the type of case Congress must

have had in mind when it enacted the discretionary

function exception. Under Cohen’s theory, anytime

a prisoner is injured by another prisoner, he can bring

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an action claiming that the BOP was negligent in clas-

sifying the prisoner who committed the assault and

placing him in the institution at which the attack oc-

curred, . . . or in not providing more guards, and so

forth. Such second-guessing of the BOP’s discretion-

ary decisions is the type of thing avoided by the dis-

cretionary function exception . . . .

Id. (emphasis added). Accordingly, we held, the discretionary-func-

tion exception applied. Id.

Similarly, in Shivers, an inmate sued under the FTCA after

his “mentally unstable” cellmate stabbed him in the eye with a pair

of scissors. 1 F.4th at 926–27. The plaintiff alleged that prison offi-

cials knew or should have known that his cellmate had a history of

assaulting cellmates. Id. at 927. We relied on Cohen to find that

BOP’s decision to house the plaintiff with his cellmate fell “squarely

within the discretionary function exception.” Id. at 929.

Diehl’s arguments are foreclosed by our prior precedents

holding that BOP housing placement decisions involve a discretion-

ary function. His chief argument—that the discretionary-function

exception doesn’t apply when attacks are foreseeable—relies on a

60-year-old non-binding district court case. Cohen v. United States,

252 F. Supp. 679 (N.D. Ga. 1966), rev’d, 389 F.2d 689 (5th Cir. 1967).

This will not do. The district court here did not err in dismissing

Diehl’s claim.

II

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6 Opinion of the Court 24-10616

A district court’s discovery decisions are reviewed for abuse

of discretion. United States v. R&F Properties of Lake Cnty., Inc., 433

F.3d 1349, 1355 (11th Cir. 2005). “Discretion means the district

court has a range of choice, and that its decision will not be dis-

turbed as long as it stays within that range and is not influenced by

any mistake of law.” Betty K Agencies, Ltd v. M/V Monada, 432

F.3d 1333, 1337 (11th Cir. 2005) (citation modified). “[D]iscovery

rulings will not be overturned unless it is shown that they resulted

in substantial harm to the appellant’s case.” Josendis v. Wall to Wall

Residence Repairs, Inc., 662 F.3d 1292, 1307 (11th Cir. 2011) (citation

modified).

Even though we construe pro se pleadings liberally, pro se

parties must follow procedural rules. Albra v. Advan, Inc., 490 F.3d

826, 829 (11th Cir. 2007) (per curiam).

A district judge or authorized magistrate judge must enter a

scheduling order that controls the course of the proceedings. Fed.

R. Civ. P. 16(b). Such a scheduling order may be modified only for

good cause. Fed. R. Civ. P. 16(b)(4). “This good cause standard

precludes modification unless the schedule cannot be met despite

the diligence of the party seeking the extension.” Sosa v. Airprint

Sys., 133 F.3d 1417, 1418 (11th Cir. 1998) (citation modified). Sim-

ilarly, in general, when there is a timeframe within which a party

must perform some act, the district court may extend the deadline

for good cause if a party requests the extension before the original

deadline expires. Fed. R. Civ. P. 6(b)(1)(A).

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24-10616 Opinion of the Court 7

Here, the district court’s discovery rulings were not an abuse

of its discretion. First, Diehl’s amended discovery request: The

district court did not abuse its discretion when it struck Diehl’s

amended discovery request from the record, reasonably conclud-

ing that it was intended for opposing counsel but erroneously filed

with the court.

Second, the court denied Diehl’s motion to extend discovery

on the ground that he hadn’t shown good cause for the extension.

In Diehl’s motion, he argued that he needed the additional time

because the government had failed to answer questions, produce

documents, and respond to his amended discovery request. The

government rejoined that it had served Diehl with responses to his

first requests for production and that it wasn’t required to respond

to Diehl’s second request because it was untimely filed. The dis-

trict court agreed that the second discovery request was untimely

filed. The discovery deadline in the case was January 3, 2023,

which meant that all discovery requests needed to be filed on or

before December 1, 2022. Diehl’s second discovery request was

dated December 3, 2022, and the mailing envelope indicated it

wasn’t given to the BOP until December 8, 2022. In either event,

the request was untimely. Because the government responded to

Diehl’s first request for discovery and wasn’t required to respond

to his second request, Diehl lacked good cause to motion for the

extension of discovery. The district court didn’t abuse its discretion

in denying the motion.

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8 Opinion of the Court 24-10616

Third, the district court denied the motion to compel both

because it was untimely (and because Diehl failed to establish good

cause) and on the merits. With respect to timeliness, Diehl’s mo-

tion was dated January 18, 2023 and the envelope was postmarked

January 20, 2023. The deadline for the filing of discovery motions

was January 17, 2023. Because Diehl didn’t set forth any basis for

finding good cause and excusable neglect for the late filing, the dis-

trict court denied the motion. This was not an abuse of discretion.

Finally, the district court construed Diehl’s motion for re-

consideration of the discovery orders as an objection to the magis-

trate judge’s nondispositive orders and ultimately chose not to set

aside the orders because they were not “clearly erroneous or [] con-

trary to law.” Fed. R. Civ. P. 72(a). Because we conclude that the

district court didn’t abuse its discretion in issuing any of the chal-

lenged discovery orders, we also conclude that it didn’t abuse its

discretion in denying Diehl’s motion for reconsideration of those

orders.

III

We review the district court’s ruling on summary judgment

de novo. Smith v. LePage, 834 F.3d 1285, 1291 (11th Cir. 2016). We

will affirm the district court’s grant of summary judgment if there

are no genuine issues of material fact in dispute and the movant is

entitled to judgment as a matter of law. Id.; Fed. R. Civ. P. 56(a).

We view the record in the light most favorable to the non-movant

and make all reasonable inferences in his favor. Benson v. Tocco,

Inc., 113 F.3d 1203, 1207 (11th Cir. 1997). A genuine issue of

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material fact is one that can be properly found only by a factfinder

because it “may reasonably be resolved in favor of either party.”

Smith, 834 F.3d at 1291 (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 250 (1986)). We may consider only the evidence that was

before the district court when it decided the motion for summary

judgment. Chapman v. Al Transp., 229 F.3d 1012, 1026 (11th Cir.

2000). We may “affirm for any reason supported by the record,

even if the district court did not rely on that reason.” Wright v. City

of St. Petersburg, Fla., 833 F.3d 1291, 1294 (11th Cir. 2016) (citation

modified).

“Unsworn statements may not be considered by a district

court in evaluating a motion for summary judgment. An unsworn

statement is incompetent to raise a fact issue precluding summary

judgment.” Roy v. Ivy, 53 F.4th 1338, 1347 (11th Cir. 2022) (citation

omitted). “A statutory exception to this rule exists under 28 U.S.C.

§ 1746, which permits unsworn declarations to substitute for a

sworn affidavit or sworn declaration for purposes of summary

judgment if certain statutory requirements are met.” Id. “Specifi-

cally, under § 1746, . . . the declarant [must] date[] and subscribe[]

the document as true under penalty of perjury in substantially the

following form: ‘I declare (or certify, verify, or state) under penalty

of perjury that the foregoing is true and correct. Executed on

(date). (Signature).’” Id. (quoting 28 U.S.C. § 1746(2)).

The FTCA provides that plaintiffs may bring claims of “as-

sault [and] battery” for “acts or omissions of investigative or law

enforcement officers of the United States Government.” 28 U.S.C.

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§ 2680(h). Under the FTCA, the United States is liable only “in ac-

cordance with the law of the place where the act or omission oc-

curred.” Id. § 1346(b)(1).

Under Florida law, “[b]attery consists of the infliction of a

harmful or offensive contact upon another with the intent to cause

such contact or the apprehension that such contact is imminent.”

Quilling v. Price, 894 So. 2d 1061, 1063 (Fla. 5th Dist. Ct. App. 2005).

“A battery claim for excessive force is analyzed by focusing upon

whether the amount of force used was reasonable under the cir-

cumstances.” City of Miami v. Sanders, 672 So. 2d 46, 47 (Fla. 3d

Dist. Ct. App. 1996). Florida corrections officers are “authorized to

apply physical force upon an inmate only when and to the extent

that it reasonably appears necessary . . . [t]o defend [themselves] or

another against . . . imminent use of unlawful force,” “[t]o quell a

disturbance,” or “[t]o overcome physical resistance to a lawful

command.” See Fla. Stat. § 944.35(1)(a)(1), (4), (5) (emphasis

added). Contractor-employed correctional officers “may use non-

deadly force” to “defend oneself or others against physical assault,”

“prevent the commission of a felony or a misdemeanor,” and “en-

force institutional regulations and orders.” Id. § 944.105(4)(a), (b),

(d). Moreover, “a presumption of good faith attaches to an officer’s

use of force . . . and an officer is liable for damages only when the

force used is clearly excessive.” Sanders, 672 So. 2d at 47.

We have noted that “[p]epper spray is an especially nonin-

vasive weapon and may be one very safe and effective method of

handling a violent suspect who may cause further harm to himself

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or others.” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1245

(11th Cir. 2003). “Given that pepper spray ordinarily causes only

temporary discomfort, it may be reasonably employed against po-

tentially violent suspects, especially those suspects who have al-

ready assaulted another person and remain armed.” Id.

At summary judgment, Diehl presented his version of the

events in an unsworn declaration. As already explained, an un-

sworn declaration may substitute for a sworn affidavit if the declar-

ant states “under penalty of perjury that the foregoing is true and

correct,” 28 U.S.C. § 1746(2), but Diehl didn’t do so here. Diehl

also presented a “Discipline Hearing Officer Report” containing

the BOP’s determination that he had fought with his cellmate, Al-

exander Ballard, as well as a “Regional Administrative Remedy Ap-

peal” containing his own statement that he had not fought Ballard

but was instead attacked and that corrections officer John Irvine did

not respond to the attack until “well after” it was over.

The government presented the declaration of Officer Irvine.

Irvine explained that while making his rounds he witnessed Diehl

and Ballard striking one another with closed fists in their cell. He

stated that he ordered the inmates to stop fighting and submit to

hand restraints, but both inmates ignored him. At that point, he

determined it was necessary to use pepper spray (oleoresin capsi-

cum or “OC”) to stop the fight. He stated that, consistent with

protocol, he yelled “OC OC OC” before deploying one two-second

burst of spray through the cell’s food slot. At that point, he was

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able to cuff the inmates. They were decontaminated and evaluated

by medical staff.

The district court granted summary judgment to the gov-

ernment after concluding that the undisputed facts surrounding the

officer’s use of force did not demonstrate that the force was objec-

tively unreasonable or so excessive as to overcome the presump-

tion of good faith afforded corrections officers under Florida law.

Even if Diehl did not fight Ballard and Officer Irvine arrived after

the attack, the court reasoned, it was undisputed that Ballard was

dangerous and had just injured Diehl. It is also undisputed that

Officer Irvine was alone. Thus, the district court concluded, “[t]he

circumstances here would have suggested to ‘a reasonable officer

on the scene’ that Ballard still posed a threat to [Diehl] and any staff

who entered the cell.” Dist. Ct. Ord., Oct. 16, 2023, at 15 (quoting

Graham v. Connor, 490 U.S. 386, 396 (1989)). Based on our prece-

dent involving the use of pepper spray, we agree that Officer Ir-

vine’s conduct was neither objectively unreasonable nor excessive.

See, e.g., McCormick, 333 F.3d at 1245 (concluding, in the Fourth

Amendment context, that because “pepper spray ordinarily causes

only temporary discomfort, it may be reasonably employed against

potentially violent suspects, especially those suspects who have al-

ready assaulted another person and remain armed”); Jones v.

Shields, 207 F.3d 491, 496 (8th Cir. 2000) (concluding, in the Eighth

Amendment context, that “a limited application of [pepper spray]

to control a recalcitrant inmate constitutes a ‘tempered response

by prison officials’ when compared to other forms of force”).

AFFIRMED.