[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-13872 ELEVENTH CIRCUIT
Non-Argument Calendar FEB 17, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:08-cv-23412-MGC
PEDRO PRECIADO RODRIGUEZ, and his wife,
GENELDA MARMOLEJO,
llllllllllllllllllllllllllllllllllllllll Plaintiffs-Appellants,
versus
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 17, 2011)
Before TJOFLAT, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM:
Pedro Preciado Rodriguez and his wife Genelda Marmolejo filed a civil
action under the Federal Tort Claims ACT (FTCA), 28 U.S.C. §§ 1346(b)(1) and
2674, and under state law for negligence against the United States. The plaintiffs
sought damages for injuries Rodriguez suffered while he was detained at Krome
Service Processing Center (Krome). The district court dismissed the complaint for
lack of subject-matter jurisdiction because the alleged conduct fell within the
discretionary function exception to the FTCA’s waiver of immunity. We affirm.
Government regulations require Krome to provide exercise equipment to
detainees, but the type of equipment is not specified. The recreational specialist,
who is responsible for selecting and maintaining the equipment at Krome, chose
the Hip & Dip Chin Combo machine. This machine is bolted to the concrete floor,
has no moving parts, and is easy to use. The Recreational Specialist assigned to
Krome is available to provide assistance and training on the equipment. The
equipment is inspected daily.
On February 18, 2008, while detained at Krome pending removal
proceedings, Rodriguez was injured while attempting to use the Hip & Dip Chin
Combo machine in his dormitory. Although no one at Krome had instructed him
how to use the machine and he never asked for assistance, Rodriguez had watched
other detainees use it. That evening, Rodriguez climbed to the top of the machine
in an effort to reach the handles and then jumped or fell onto the concrete floor.
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The guards heard the thump, but did not witness the fall. Rodriguez was
transferred to the hospital where he was diagnosed with a traumatic cervical spine
injury; he will likely require life-long care.
Rodriguez and his wife then filed this civil action against the United States
claiming that the authorities at Krome were negligent by failing to supervise and
instruct Rodriguez on the proper use of the equipment. In their three-count
complaint, the plaintiffs alleged negligence under the FTCA and state law and loss
of consortium.
The district court sua sponte dismissed the complaint with prejudice for lack
of subject-matter jurisdiction, applying the discretionary function exception to the
government’s waiver of immunity.1 The court found that, although regulations
required Krome to provide equipment, the decision as to what type of equipment
was discretionary and there were no regulations setting forth Krome’s
responsibility to train, supervise, or warn detainees who used the equipment. As
the court explained, “Krome had to provide detainees with access to recreational
programs under safe conditions but had discretion as to the manner and method of
carrying out this non-specific guideline.” After unsuccessfully moving for relief
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The court also declined to exercise its supplemental jurisdiction over the state-law
claims.
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from the judgment, plaintiffs appeal.2
We review a district court’s interpretation and application of the
discretionary function exception to the FTCA de novo.3 Ochran v. United States,
117 F.3d 495, 499-500 (11th Cir. 1997).
The United States government may not be sued without its consent, and this
immunity extends to federal government agencies. Asociacion de Empleados del
Area Canalera (ASEDAC) v. Panama Canal Com’n, 453 F.3d 1309, 1315 (11th
Cir. 2006). Under the FTCA, the federal government waives its immunity
regarding negligent or wrongful actions committed by its employees within the
scope of their official duties. 28 U.S.C. § 1346(b)(1). But there is a “discretionary
function exception” to the FTCA’s waiver of immunity. Nguyen v. United States,
556 F.3d 1244, 1250-51 (11th Cir. 2009); see also 28 U.S.C. § 2680(a). The
discretionary function exception precludes government liability for “[a]ny claim
2
We reject Rodriguez’s argument that it was error for the district court to dismiss his
complaint without notice and the opportunity to conduct discovery. See Mesa v. United States,
123 F.3d 1435, 1439 (11th Cir. 1997); see also McElmurray v. Consol. Gov’t of Augusta-
Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007). The district court had before it the
parties’ discovery material and the plaintiffs have not proffered what additional discovery they
would have obtained to address subject-matter jurisdiction.
3
Although the court’s order dismissed the case for lack of subject-matter jurisdiction by
granting the government’s motion for summary judgment, we construe that order as a dismissal
under Federal Rule of Civil Procedure 12(b)(1). Sheely v. MRI Radiology Network, P.A., 505
F.3d 1173, 1182 (11th Cir. 2007).
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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). When the discretionary function exception to the FTCA applies, no
federal subject matter jurisdiction exists. United States Aviation Underwriters,
Inc. v. United States, 562 F.3d 1297, 1299 (11th Cir. 2009). In deciding whether
subject-matter jurisdiction exists, we may consider the pleadings and matters
outside the pleadings, such as testimony and affidavits, to satisfy ourselves as to
our power to hear the case. McMaster v. United States, 177 F.3d 936, 940 (11th
Cir. 1999) (citation omitted).
We apply a two-part test for determining whether a government employee’s
action or omission falls within the discretionary function exception. United States
v. Gaubert, 499 U.S. 315, 322-23 (1991); Autery v. United States, 992 F.2d 1523,
1526 (11th Cir. 1993). First, the court is to consider the nature of the conduct and
determine whether it involves “an element of judgment or choice.” Gaubert, 499
U.S. at 322 (citation omitted); see also Powers v. United States, 996 F.2d 1121,
1124 (11th Cir. 1993). Second, if the conduct at issue involves the exercise of
judgment, the court must determine whether that judgment is grounded in
considerations of public policy. Gaubert, 499 U.S. at 322-23. “In making this
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determination, we 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.” Cohen v. United States, 151 F.3d
1338, 1341 (11th Cir. 1998) (quoting Ochran v. United States, 117 F.3d 495, 500
(11th Cir. 1997)).
Here, Rodriguez challenges Krome’s failure to instruct, supervise, and warn
him regarding the use of the Hip & Dip Chin Combo Machine.4 The Department
of Homeland Security’s Immigration and Customs Enforcement Detention
Operations Manual provides,
1. facilities must provide detainees with “access to recreational programs
and activities under conditions of security and supervision that protect their
safety and welfare,”
2. each detention center “shall have an individual responsible for the
development and oversight of the recreation program,”
3. the “Recreational Specialist shall assess the needs and interests of the
detainees,”
4. “Exercise areas shall offer a variety of equipment. Weight training, if
offered, must be limited to fixed equipment. Free weights are prohibited,”
and
5. “Programs and activities are subject to the facility’s security and
operational guidelines and may be restricted at the [officer in charge’s]
discretion.”
See INS Detention Standard, Recreation, I, III(F), (G) (2000).5
4
Plaintiffs do not challenge the decision to include the Hip & Dip Chin Combo Machine
as part of the recreational equipment.
5
Available at http://www.ice.gov/doclib/dro/detention-standards/pdf/recreation.pdf.
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Rodriguez contends that because the manual required Krome employees to
supervise the use of equipment, and there were employees present when he fell,
the discretionary-function exception does not apply, as there was no choice or
judgment involved. He further argues that the requirement that Krome have a
recreational specialist on site also removes any discretion. We disagree.
The manual sets forth the basic requirement that Krome offer recreational
equipment. Government conduct does not involve an element of judgment 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, because the
employee has no rightful option but to adhere to the directive.” Gaubert, 499 U.S.
at 322 (internal quotation marks and citation omitted). But, in this case, the
manual does not “specifically prescribe a course of action.” Although the manual
requires Krome offer safe conditions for the use of this equipment, there is no
regulation on point to direct the manner in which Krome provides such conditions.
In fact, the manual specifically provides that the activities are subject to the
officer’s discretion. Given these standards, there is little doubt that this is
precisely the type of discretion or choice that falls within the discretionary-
function exception. See Cohen, 151 F.3d at 1341-42 (concluding that prisoner
classification involves choice and judgment even though Bureau of Prisons is
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required by statute to provide for the protection of its inmates).
Turning to the second prong of the analysis, we must determine “whether
the nature of the decision or conduct at issue is susceptible to policy analysis.”
Cohen, 151 F.3d at 1344 (internal quotation marks omitted). Rodriguez complains
of the failure to instruct, supervise, and warn him of the danger of the Hip & Dip
Chin Combo machine. We note that there was a recreational specialist on staff
and that Rodriguez never asked for any instruction. To require Krome staff to
anticipate both his unspoken need for assistance and the likelihood that he would
use the equipment improperly renders the staff unable to address more pressing
needs in the facility. We conclude that this is the type of decision subject to policy
analysis. Protected “[d]iscretionary conduct is not confined to the policy or
planning level.” Gaubert, 499 U.S. at 325. Rather, “[d]ay-to-day management . . .
regularly requires judgment as to which of a range of permissible courses is the
wisest.” Id.; see also Hughes v. United States, 110 F.3d 765 (11th Cir. 1997)
(applying discretionary-function exception where the plaintiff had alleged that the
postal service was negligent by failing to provide adequate lighting or security to
patrons using the twenty-four-hour access). In the instant case, these decisions
require considerations of institutional security, safety, and order. See, e.g. Bell v.
Wolfish, 441 U.S. 520, 547 (1979) (“Prison administrators . . . should be accorded
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wide ranging deference in the adoption and execution of policies and practices that
in their judgment are needed to preserve internal order and discipline and to
maintain institutional security.”). Accordingly, we conclude that the district court
properly dismissed the complaint for lack of subject-matter jurisdiction.
AFFIRMED.
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