Tomas Lopez v. Ice

Case: 10-51106 Document: 00511703576 Page: 1 Date Filed: 12/21/2011

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

December 21, 2011

No. 10-51106

Lyle W. Cayce

Clerk

TOMAS RIVAS LOPEZ, Individually and as Representative of the Estate of

Julio Adalberto Rivas Parada, Also Known As Juan Carlos Montano-Parada;

MARIA ISABEL PARADA DE RIVAS, Individually and as Representative of

the Estate of Julio Adalberto Rivas Parada, Also Known As Juan Carlos

Montano-Parada,

Plaintiffs - Appellants

v.

UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT;

ASSISTANT SECRETARY JULIE MEYERS; DIVISION OF IMMIGRATION

HEALTH SERVICES; GENE MIGLIACCIO, Director of the Division of

Immigration Health Services,

Defendants - Appellees

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:08-CV-38

Before JONES, Chief Judge, HAYNES, Circuit Judge and ENGELHARDT,

District Judge.* **

EDITH H. JONES, Chief Judge:

*

District Judge, Eastern District of Louisiana, sitting by designation.

**

Pursuant to 5TH CIR. R. 47.5, the court has determined 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.

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Appellants sued the United States under the Federal Tort Claims Act

(“FTCA”) alleging theories of negligence and constitutional violations in

connection with Julio Adalberto Rivas Parada’s death in federal custody. The

district court dismissed Appellants’ claims for lack of subject-matter jurisdiction

pursuant to the FTCA’s discretionary function exception. We AFFIRM.

I. BACKGROUND

Parada’s Detention

The material facts are undisputed. In May 2006, thirty-two-year-old Julio

Adalberto Rivas-Parada and his brother illegally entered the United States by

wading across the Rio Grande. Parada had already been hospitalized in Mexico

during their journey. Near Carrizo Springs, Texas, Parada grew too weak to

continue and the two stopped at a ranch to turn themselves in. Border Patrol

agents took them into custody. On intake, the Val Verde Correctional Facility

medically screened Parada. The facility found no medical problems aside from

a positive initial tuberculosis test.

Parada pled guilty to misdemeanor illegal entry and was sentenced to 90

days in prison. The court remanded Parada and his brother to the United States

Marshal Service’s (“USMS”) custody. The USMS transferred them to the Crystal

City Correctional Center (“CCCC”). CCCC initially segregated Parada pending

follow-up tuberculosis testing, which came back negative. Three days later,

Parada sought treatment in the CCCC medical clinic for diarrhea, vomiting,

muscle aches, and general weakness. He was given Pepto Bismol for his

symptoms.

Parada’s symptoms continued, and he was unable to eat or retain fluids.

When Parada complained again of his symptoms a week later, a nurse, in

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consultation with a doctor, treated Parada with an antiemetic and antibiotics.

Parada returned the next day with persistent vomiting and diarrhea. Medical

staff assured him that he had only begun a treatment regimen. They instructed

him to drink plenty of fluids and to return in two days if his symptoms did not

abate.

Parada’s condition worsened. Parada suffered a seizure the next day and

developed borderline low blood pressure. A medical technician treated both on

consultation with a nurse, who instructed Parada to drink more fluids and make

an appointment during sick-call hours the next day. Near 3:30 A.M. on June 8,

a correctional officer found Parada in his cell, too weak to move and complaining

of shortness of breath. On-duty medical staff brought an oxygen tank and

requested authorization to send Parada to the emergency room. CCCC doctors

authorized Parada’s departure at about 4:20 A.M.

CCCC personnel transported Parada to the hospital. On arrival an hour

later, emergency room staff noted Parada’s ongoing vomiting and his inability

to eat, his borderline low blood pressure, and signs of severe malnutrition.

Emergency medical personnel treated Parada to no avail. He died at 7:15 A.M.

of a heart attack precipitated by a fatal electrolyte imbalance from his

malnutrition, diarrhea, and vomiting.

Prison Regulations At Issue

The USMS housed Parada at CCCC pursuant to an Intergovernmental

Service Agreement (“IGA”) with Crystal City, Texas, executed in 2003. The

USMS had housed prisoners at CCCC for some time before the IGA. An IGA is

a formal written agreement between the USMS and a local or state government

for the housing, care, and safekeeping of federal prisoners in exchange for a fixed

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per diem payment by the USMS for each prisoner held. The City in turn

contracted with BRG Security Services, Inc. (“BRG”) for CCCC’s day-to-day

operational management.

USMS policies at the commencement of the contract required an initial

facility inspection upon an IGA award, supplemented by annual facility

inspections. U.S. MARSHALS SERV., POLICY DIRECTIVES § 9.26(A)(3)(a) (2006)

(listing “Detention Facility Contracting Policy and Procedures” including facility

inspections). These policies — labeled “Directives” — required “an initial on-site

inspection of detention facilities to determine the facility’s level of compliance

with USMS inspection guidelines.” Id. at § 9.26(A)(3)(a)(5). The USMS

supplemented these inspection requirements with a Jail Inspection Pilot

Program, which, for the 21 states whose jail standards met or exceeded USMS

minimum standards, accepted annual copies of local regulatory inspections in

lieu of an IGA facility inspection. Memorandum from Eduardo Gonzalez, Dir.,

U.S. Marshals Serv., to U.S. Marshals Serv., Jail Inspection Pilot Program

(Aug. 4, 1994). Nonetheless, the pilot program noted the continuing necessity

of an initial inspection following an IGA award. Id.

The USMS pilot inspection program accepted Texas jail standards. The

Texas Commission on Jail Standards (“TCJS”) regularly inspected CCCC and

calculated its maximum capacity at 515 prisoners. The USMS accepted TCJS

inspection reports in monitoring CCCC’s compliance with both USMS and IGA

standards. TCJS certified CCCC’s compliance with state jail standards for 2004

and 2005, but CCCC failed minimum standards in November 2006, after

Parada’s death.

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The USMS has established custodial healthcare standards. USMS policy

is to “ensure that all USMS prisoners receive medically necessary health care

services while ensuring that federal funds are not expended for unnecessary or

unauthorized health care services.” U.S. MARSHALS SERV., POLICY DIRECTIVES

§ 9.15(C)(1) (2006). USMS policy authorizes the acquisition of, and payment for,

“reasonable and medically necessary care (including emergency medical care)”

“upon recommendation of a competent medical authority or physician,” and

requires immediate provision of emergency medical care. Id. at § 9.15(C)(2).

USMS policy defines “emergency medical care” as “[m]edical care immediately

necessary to preserve the life, health, limb, sight[,] or hearing of the prisoner.”

Id. at § 9.15(C)(17)(c). Deputy marshals generally must pre-approve outside

general medical care to USMS prisoners, but when prisoners are transported for

emergency medical care, the USMS must only be notified “as soon as possible.”

Id. § 9.15(C)(7). The IGA requires the City to provide federal prisoners with the

same level of medical care as local prisoners. The City must also provide 24-

hour emergency medical care for prisoners.

Proceedings

Appellants sued BRG and its affiliates, and federal entities and officials.

Appellants settled their BRG-related claims. The United States was substituted

for the federal defendants. Appellants’ second amended complaint asserted

numerous theories of negligence, including failures to provide or to ensure the

provision of medical care, to oversee operation of the CCCC in accordance with

USMS standards, to comply with TCJS capacity standards, to investigate

Parada’s death, and to provide constitutionally sufficient policies governing

prisoner medical care.

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Following some discovery, the United States moved for summary

judgment, asserting that the FTCA barred each of Appellants’ claims under

either the independent contractor or discretionary function exemptions. The

district court considered the motion as a Rule 12(b)(1) motion to dismiss for want

of subject-matter jurisdiction and concluded the Appellants could not state a

facially plausible negligence claim that arose from a non-discretionary function.

The court accordingly dismissed Appellants’ FTCA claims.

Appellants now rely on two of their negligence theories as falling outside

the scope of the discretionary function exception. They assert that USMS

policies obliged the USMS to inspect CCCC, rendering the negligent failure to

inspect the facility a violation of a non-delegable, non-discretionary duty. They

also claim USMS policies mandated the USMS to ensure adequate medical care,

and that the USMS’s failure to monitor CCCC’s operation violated these non-

discretionary policies. Alternatively, Appellants argue that Parada’s

constitutional rights were violated by inadequate medical care, and that the

discretionary function exception necessarily excludes any discretionary decisions

made in violation of the Constitution.

STANDARD OF REVIEW

This court reviews de novo a district court’s dismissal under Federal Rule

of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction, applying the

same standard as the district court. Spotts v. United States, 613 F.3d 559, 565

(5th Cir. 2010). The party asserting jurisdiction bears the burden of proof of

demonstrating jurisdiction. Davis v. United States, 597 F.3d 646, 649

(5th Cir. 2009). A complaint should be dismissed for lack of subject-matter

jurisdiction when “it appears certain that the plaintiff cannot prove a plausible

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set of facts that establish subject-matter jurisdiction.” Id. In determining

whether it has jurisdiction, the court may consider: (1) the complaint alone;

(2) the complaint plus undisputed facts evidenced in the record; or (3) the

complaint, undisputed facts, and the court’s resolution of disputed facts. Id. at

649-50.

DISCUSSION

The United States, as sovereign, is immune from suit without its express

consent. Hebert v. United States, 438 F.3d 483, 487-88 (5th Cir. 2006). This

immunity deprives the court of subject-matter jurisdiction over claims against

the United States. Id. Through the FTCA, Congress has consented to suit

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

death caused by 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. § 1346(b)(1).

“The liability of the United States under the FTCA, however, is subject to

various exceptions contained in 28 U.S.C. § 2680, including the ‘discretionary

function’ exception.” Spotts v. United States, 613 F.3d 559, 566 (5th Cir. 2010).

The discretionary function exception withdraws the FTCA’s waiver of sovereign

immunity for actions “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.” Id. (quoting 28 U.S.C. § 2680(a)).

Under the Supreme Court’s Gaubert test, a governmental employee’s

conduct must satisfy two conjunctive criteria to qualify as a discretionary

function. United States v. Gaubert, 499 U.S. 315, 322-23, 111 S. Ct. 1267, 1273-

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74 (1991). First, the challenged conduct must be “discretionary in nature, acts

that ‘involv[e] an element of judgment or choice.’” Id. at 322. If so, we must

examine if the conduct is also “of the kind that the discretionary function

exception was designed to shield.” Id. at 322-23. The exception protects “actions

and decisions based on considerations of public policy,” including “decisions

grounded in social, economic, and political policy.” Id. at 323. When, however,

a governmental agent violates a nondiscretionary federal law, regulation, or

express policy, a suit against the United States may go forward subject to other

FTCA, state tort law, and procedural requirements. Id. at 324.

Appellants seek to overcome the discretionary function exception by

arguing the USMS violated its own nondiscretionary policies in both failing to

inspect CCCC and failing to oversee the facility’s medical care. Because the

negligence claims derive from separate policies, we evaluate them separately.

Appellants first contend that various Directives required the USMS to

inspect CCCC either immediately preceding or immediately following an IGA

award. An internal policy memorandum states that an institution “need[ed] to

be inspected before the award of an IGA and subsequently inspected annually.”

Memorandum from Eduardo Gonzalez, Dir., U.S. Marshals Serv., to U.S.

Marshals Serv., Jail Inspection Pilot Program (Aug. 4, 1994). Another USMS

Directive requires the agency to “[c]onduct an initial on-site inspection of

detention facilities to determine the facility’s level of compliance with USMS

inspection guidelines.” U.S. MARSHALS SERV., POLICY

DIRECTIVES § 9.26(A)(3)(a)(5) (2006). These documents allegedly articulate a

nondelegable, nondiscretionary policy that the USMS breached by failing to

inspect CCCC in 2003 when the IGA took effect. Appellants emphasize the

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USMS’s use of the term “will” in these Directives as though it were dispositive

of a nondiscretionary duty: the USMS will complete an inspection and will

complete a form so documenting.

This view is oversimplified. As this court has found, many policy

statements couched in seemingly mandatory language ultimately present only

“generalized, precatory, or aspirational language that is too general to prescribe

a specific course of action for an agency or employee to follow.” Freeman v.

United States, 556 F.3d 326, 338 (5th Cir. 2009). Thus, in Freeman, Department

of Homeland Security policies stating where medical support “is required”

following a disaster articulated only aspirational goals, although those policies

allocated responsibilities to various agencies after a disaster. See id. at 338-39.

Even a statement that “federal support must be provided in a timely manner to

save lives” constituted only “an assumption, not a specific directive.”

Id. at 339 n.12. Freeman similarly concluded that the vast majority of a series

of policy duties labeled “Correctional Statements and Accreditation” — which

provided for methods for monitoring and auditing compliance — established only

recommended standards. See Spotts, 613 F.3d at 571, 571 n.10, 572. That the

USMS documents here in question state what the USMS “will” do is far from

dispositive; “will” may be used to express a determination to commit a future act

as easily as a command to perform that act.

Instead, the relevant inquiry is whether the policy specifically addresses

how an official must confront a given situation. Freeman, 556 F.3d at 339-40.

A policy may direct general policy goals — such as determining a “facility’s level

of compliance with USMS inspection guidelines” — but when the policy fails to

prescribe “specific direction” as to what course of action an employee must

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follow, it generally fails to establish a nondiscretionary duty. Guile v. United

States, 422 F.3d 221, 230-31 (5th Cir. 2005). Here, the USMS Directives

provided no guidance, or even mention, on a variety of topics relating to this

inspection obligation. Such issues include whether the grant of an IGA was to

be contingent on a specific level of compliance, what minimum “level of

compliance” (implying a continuum of potential compliance, and thus discretion

vested in the USMS) a facility had to meet, and what remedial actions to take

(if any) in the event of insufficient compliance with USMS guidelines. As to the

“nondelegable” nature of the inspection requirement, USMS contends that it

could rely on the TCJS annual inspections, which the JIPP expressly approved,

to “override” the requirement of a pre-IGA inspection of CCCC. Memorandum

from Eduardo Gonzalez, Dir., U.S. Marshals Serv., to U.S. Marshals Serv., Jail

Inspection Pilot Program (Aug. 4, 1994). The CCCC satisfied the TCJS

standards in 2004-05. The decisions how to conduct an inspection and whether

to rely on annual state inspections, especially when taken against the backdrop

of the facility’s historical use in housing federal detainees, were imbued with

policy and discretionary factors. Finally, the decision to retain a contractor is a

policy-based discretionary decision. Guile, 422 F.3d at 231. For these reasons,

the USMS inspection directive did not impose a “nondiscretionary” duty to

inspect CCCC as opposed to merely mandating best practices before and after

the award of an IGA.1

1

But even if we assume the USMS directive imposed a nondiscretionary duty to

inspect CCCC at the inception of an IGA award, and further assume USMS somehow breached

the duty, Appellants had to allege facts that, if true, would demonstrate a plausible causal

relationship between the nondiscretionary duty and Parada’s death. See Harold H. Huggins

Realty, Inc. v. FNC, Inc., 634 F.3d 787, 796, 803 n.44 (5th Cir. 2011) (citing Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1973-74 (2007)). Here Appellants’ claim fails.

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Appellants rely on another section of the Directives to claim negligent

oversight of medical care at CCCC. USMS policy provided that “the USMS will

ensure that all USMS prisoners receive medically necessary health care

services,” and that emergency services “will be provided” to all prisoners

“immediately.” U.S. MARSHALS SERV., POLICY DIRECTIVES § 9.15(C)(1) (2006).

The Directives further noted that facilities “must meet . . . minimum conditions

of confinement,” which included “adequate emergency medical coverage . . .

available 24 hours a day.” Id. at §§ 9.25(A), (A)(3). We cannot perceive a

nondiscretionary failure by the USMS. This claim is controlled by our decision

in Guile, supra, 422 F.3d at 231 (“Supervision of a contractor’s work, including

the degree of oversight to exercise, is inherently a discretionary function.”).

Appellants finally attempt to circumvent the discretionary function

exception with regard to Parada’s deficient medical care by describing the

USMS’s failure as a constitutional violation. Appellants rely on a vacated panel

opinion in Castro v. United States to assert that if the USMS’s failure to oversee

properly CCCC’s provision of medical care violated Parada’s constitutional

rights, that failure cannot fall within the discretionary function exception. See

Castro v. United States, 560 F.3d 381, 390-91 (5th Cir. 2009), rev’d en banc,

608 F.3d 266, 268-69 (5th Cir. 2010), cert. denied, 131 S. Ct. 902 (2011). The

Castro panel opinion has no precedential value. In Spotts, supra, this court

subsequently declined to determine whether a properly pled state law tort claim

predicated on a decision that violates the Constitution may obviate the

If the USMS was obliged to inspect CCCC in 2003 upon its IGA award and to file attendant

paperwork memorializing such an inspection, it is difficult to conceive of how such a failure

plausibly led to Parada’s death in 2006 from specific failures of medical care by CCCC’s

designees.

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discretionary function exception. We need not decide so here either. Appellants’

pleadings allege no more than negligence against federal officials and evidence

no facts that, if proved, could support the deliberate indifference standard

required for an Eighth Amendment claim. Lacking any plausible basis for a

constitutional violation by USMS, Appellants also lack grounds to argue for

avoiding the discretionary function exception.

CONCLUSION

Appellants’ negligence claims rest ultimately on discretionary decisions by

the USMS, the nature of which preclude potential federal tort liability under the

FTCA. Their constitutional claim fails to meet minimum pleading standards

that might allow them to argue for FTCA liability. We therefore AFFIRM the

district court’s dismissal of Appellants’ claims.

AFFIRMED.

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HAYNES, Circuit Judges, concurring in the judgment:

The facts of this case are tragic and horrific, but we are required to follow

the law which does not provide a remedy against these Appellees under the facts

as pleaded. The majority opinion reaches the correct result under the law, so I

join in the judgment. However, I find it unnecessary to reach the question of

whether the initial inspection requirement was a nondiscretionary duty. I agree

with the reasoning of footnote one that Appellants failed to plead a plausible

causal connection between the failure to comply with the arguably

nondiscretionary duty to conduct an initial inspection and Parada’s death.

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