Santos v. USA

United States Court of Appeals
Fifth Circuit
F I L E D
April 21, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
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,
Circuit Judges.
PER CURIAM:*
Reydel Santos appeals the dismissal, for
want of jurisdiction, of his suit for negligence
and intentional infliction of emotional distress
(“i.i.e.d.”) brought under the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. § 2671 et
seq. We affirm.
I.
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termined that this opinion should not be published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.

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relevant to this action,1 Bureau of Prisons
(“BOP”) regulations stated that “[a]ll areas of
Bureau of Prisons facilities and vehicles are no
smoking areas unless specifically designated as
a smoking area by the Warden as set forth in §
551.163.” 28 C.F.R. § 551.162 (2002). The
regulations further provided that “[t]o the
maximum extent practicable nonsmoking
inmates shall be housed in nonsmoking living
quarters.” 28 C.F.R. § 551.163(c) (2002).
Pursuant to these regulations, all buildings at
FCI Yazoo City, including inmate dormitories,
were designated as smoke-free areas.
After exhausting available administrative
remedies with the Bureau of Prisons, Santos
sued, alleging that despite these anti-smoking
regulations, he was exposed to environmental
tobacco smoke (“ETS”) in his housing unit at
FCI Yazoo City as a result of prison officials’
negligence in (1) failing to enforce the no-
smoking regulations; (2) failing adequately to
staff the prison dormitories so there would be
enough supervision to enforce the smoking
ban; (3) failing appropriately to discipline
inmates caught smoking; (4) failing to provide
a separate dormitory for nonsmoking inmates;
(5) removing the platforms on which correc-
tional officers’ desks had previously been
placed and from where the officers could see
whether inmates were smoking; and (6) keep-
ing windows in the dormitories sealed and in-
capable of being opened to admit fresh air.
Santos contends that as a result of his expo-
sure to ETS, he has experienced headaches,
respiratoryproblems, sinus irritation, asthmatic
episodes, bronchitis, conjunctivitis, ear aches,
increased stress, and sleeplessness. He asserts
that prison officials intentionally inflicted
emotional distress by allowing him to be ex-
posed to ETS even though he had informed
them that his father was terminally ill with
emphysema and that he was scared of
becoming similarly ill because of ETS. Santos
seeks $600,000 in damages on his negligence
claims and $100,000 in damages for i.i.e.d.
The government moved to dismiss for want
of subject matter jurisdiction pursuant to FED.
R. CIV. P. 12(b)(1), and in the alternative for
summary judgment pursuant to FED. R. CIV. P.
56, arguing that the discretionary function ex-
ception to the FTCA’s waiver of sovereign im-
munity bars Santos’s claims. The district court
granted the motion and dismissed with preju-
dice.
II.
In this circuit,
We review de novo a dismissal for want of
subject matter jurisdiction. Lack of subject
matter jurisdiction may be found on any
one of the following bases: (1) the com-
plaint alone; (2) the complaint supple-
mented by undisputed facts evidenced in
the record; or (3) the complaint supple-
mented by undisputed facts plus the court’s
resolution of disputed facts. In examining
a Rule 12(b)(1) motion, the district court is
empowered to consider matters of fact
which may be in dispute. Ultimately, a mo-
tion to dismiss for lack of subject matter
1 Santos began serving his term in June 2002
and filed his administrative complaint with the
Bureau of Prisons in November 2002. Because of
the jurisdictional administrative exhaustion require-
ment, June-November 2002 is thus the only time
period covered by Santos’s suit. See 28 U.S.C. §
2675(a) (stating that an action cannot be instituted
upon a claim against the United States for money
damages for an injury caused by a negligent or
wrongful act or omission of a government
employee “unless the claimant shall have first
presented the claim to the appropriate Federal
agency and his claim shall have been finally denied
by the agency . . . .”).

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jurisdiction should be granted only if it ap-
pears certain that the plaintiff cannot prove
any set of facts in support of his claim that
would entitle plaintiff to relief.
Johnson v. Aramco Servs. Co., 2006 WL
45849, at *1 (5th Cir. Jan. 10, 2006) (unpub-
lished) (internal citations and quotations
omitted).
The United States is immune from suit un-
less it consents to be sued. United States v.
Testan, 424 U.S. 392, 399 (1976). “[T]he
terms of [the government’s] consent to be
sued in any court define that court’s jurisdic-
tion to entertain the suit.” Id. (internal cita-
tions and quotations omitted). The Supreme
Court “has long decided that limitations and
conditions upon which the Government con-
sents to be sued must be strictly observed and
exceptions thereto are not to be implied.”
Lehman v. Nakshian, 453 U.S. 156, 161
(1981) (internal citations and quotations omit-
ted).
Under the FTCA, the government has
waived sovereign immunity with regard to
suits based on the alleged negligent acts and
omissions of its employees. That waiver, how-
ever, is limited. The United States has ar-
ticulated certain exceptions to its consent to be
sued in this area. Particularly relevant to this
action, the waiver of immunity does not extend
to “[a]ny claim based upon . . . [a government
employee’s] failure to exercise or perform a
discretionary function . . . .” 28 U.S.C. §
2680(a). If the government’s conduct falls
within the discretionary function exception to
the FTCA, a suit complaining of that action
must be dismissed for lack of subject matter
jurisdiction. See Buchanan v. United States,
915 F.2d 969, 970 (5th Cir. 1990).
For the discretionary function exception to
bar a given suit, the alleged negligent acts or
omissions must involve “an element of judg-
ment or choice,” Gaubert v. United States,
499 U.S. 315, 322 (1991), and they must con-
stitute acts or decisions based on considera-
tions of public policy, id. at 323. Utilizing the
Gaubert guidelines, the district court deter-
mined that each of Santos’s claims of negli-
gence is barred by the discretionary function
exception.
The court noted that no law or regulation
mandates that separate housing be provided
for nonsmoking inmates. Indeed, the relevant
regulation called for separate housing only “to
the extent practicable,” 28 C.F.R. § 551.-
163(c) (2002), language that makes plain that
the decision as to whether to provide separate
housing is left to the sound discretion of the
prison administrators. Furthermore, the dis-
trict court stated that the decision whether to
provide separate housing for nonsmokers in-
volves policy considerations such as economic
feasibility and efficient resource allocation.
With regard to Santos’s claim about the
lack of enforcement of the no-smoking rules,
the district court stated that BOP regulations
and FCI Yazoo City’s supplemental rules out-
line disciplinary actions to be taken for viola-
tions of the smoking ban, but noted that based
on United States v. Varig Airlines, 467 U.S.
797, 809 (1984), “the extent to which the BOP
chooses to apply its resources to enforce the
regulation against smoking . . . and the extent
to which the BOP chooses to apply its
resources elsewhere . . . are discretionary
choices made among many alternatives.” The
court further asserted that when an inmate is
caught smoking, the “decision to implement
disciplinary action is discretionary and gives
the BOP room for judgment.” Id. (citing Cal-
deron v. United States, 123 F.3d 947, 949-50
(7th Cir. 1997)).

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

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