Scott Tyree v. United States

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 18-7392

SCOTT TYREE,

Plaintiff – Appellant,

v.

UNITED STATES OF AMERICA,

Defendant – Appellee.

Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Terrence W. Boyle, Chief District Judge. (5:14-ct-03158-BO)

Argued: May 29, 2020 Decided: July 1, 2020

Before NIEMEYER, MOTZ, and AGEE, Circuit Judges.

Affirmed in part; vacated in part and remanded with instructions by unpublished per curiam
opinion. Judge Motz wrote a separate opinion concurring in part.

ARGUED: Jana Minich, Raymond Gans, UNIVERSITY OF VIRGINIA SCHOOL OF
LAW, Charlottesville, Virginia, for Appellant. Michael Bredenberg, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF:
James S. Ballenger, Kellye Quirk, Third Year Law Student, Appellate Litigation Clinic,
UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for
Appellant. Robert J. Higdon, Jr., United States Attorney, Joshua B. Royster, Assistant
United States Attorney, Hayley Milczakowski, Qualified Third Year Law Student,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

Scott Tyree, an inmate at the Special Housing Unit (“SHU”) at the Low Security

Correctional Institution in Butner, North Carolina (“LSCI Butner”), filed suit under the

Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346, alleging that he suffered severe

injuries because prison officers failed to respond in a timely fashion under Bureau of

Prisons (“BOP”) policy while he was being attacked by a fellow inmate. The district court

found the officers’ actions fell within the discretionary function exception to the FTCA and

dismissed Tyree’s complaint for lack of subject matter jurisdiction pursuant to Federal Rule

of Civil Procedure 12(b)(1). Tyree appeals. For the reasons set out below, we affirm in part

and vacate and remand in part.

I.

Tyree’s complaint alleges 1 that around 11:15 p.m. on July 19, 2012, his cellmate,

Glenn Nickerson, woke him up by turning off his continuous positive airway pressure

(“CPAP”) medical device and assaulting him. According to Tyree, he yelled for help

throughout the assault because he was unable to reach the duress button at the other end of

his cell. 2 After about five minutes, Nickerson stopped beating him, pushed the button, and

1
When a defendant mounts a facial challenge to subject matter jurisdiction under
Rule 12(b)(1), “the facts alleged in the complaint are taken as true[.]” Kerns v. United
States, 585 F.3d 187, 192 (4th Cir. 2009).
2
This button, which is designed only for “emergency and/or life-threatening
situations, to include health-related issues,” J.A. 86, sets off a light at the cell door as well
as a visual and audio alarm in the SHU control room. If the alarm is not acknowledged
within ninety seconds, it is reported to the LSCI Butner Control Center.

3
called for a correctional officer. Two minutes later, Nickerson resumed assaulting Tyree

by striking him in the head and face with his CPAP device, then dragging him to the front

of the cell and hitting Tyree with his fists. The BOP officer who responded to the duress

button found Tyree in this position.

After BOP staff intervened, Tyree was taken to an emergency room for treatment

for, among other injuries, a laceration above his eye as well as a CT scan to check for skull

fractures. According to his complaint, Tyree suffered two grand mal seizures about a year

later that he attributes to the assault, given that he had never previously suffered a head

trauma or been diagnosed with a seizure disorder. As a result, he must now take anti-seizure

medication and receive specialized neurological care.

In June 2013, Tyree filed an administrative tort claim as required by the FTCA.

After exhausting his administrative remedies, he filed the instant FTCA suit a year later, 3

claiming that BOP officers failed to respond to the alarm “in excess of ten . . . minutes”

and that this delay was the result of “deliberate indifference and negligence” on the part of

the officers. J.A. 17. Had they responded in the “time-frame mandated by internal [BOP]

policy and procedures,” he further asserted, his “injuries would not have been as extensive,

or serious[.]” J.A. 17.

The Government filed a motion to dismiss or, in the alternative, for summary

judgment. In support, the Government submitted sworn affidavits from the BOP officers

who responded to the alarm stating that they reacted “immediately” upon observing the

3
Throughout litigation up until the instant appeal, Tyree appeared pro se.

4
duress button light at 11:27 p.m. 4 J.A. 24, 27. But Tyree asserted that summary judgment

was inappropriate since he had not been afforded the opportunity to conduct discovery,

which he argued was vital to his ability to make a case. The district court granted the motion

for summary judgment, finding in relevant part that the officers responded as soon as they

saw the light and that any contention that they “should have responded faster is merely

speculative[.]” J.A. 33. Tyree timely appealed.

On appeal, this Court determined that the district court had abused its discretion by

entering summary judgment prior to discovery. Specifically, the Court observed that the

parties were in disagreement regarding the timeline of events and whether the emergency

alert system was operational. “Accepting Tyree’s assertions as true, prison officials did not

respond for over five minutes after the emergency light was activated. The record is devoid

of information regarding whether this alleged five minute delay was reasonable.” Tyree v.

United States, 642 F. App’x 228, 230 (4th Cir. 2016) (citing Palay v. United States, 349

F.3d 418, 432 (7th Cir. 2003) (providing scenarios whereby failure to respond in a timely

manner could constitute negligence)). Thus, “discovery on these topics would potentially

4
Specifically, Officer Stephen Seaman stated that on the night in question, he was
conducting rounds and was “unaware of any emergency in that cell.” J.A. 24. However, at
approximately 11:27 p.m., he saw the light outside of Tyree’s cell, indicating the button
had been activated; in response, he immediately went over to the cell, turned on the cell
light, and observed the two inmates holding each other in a headlock. He thereafter called
for assistance and, “as responding staff arrived, the inmates were removed from their cell
and medically assessed.” J.A. 23–24.
Meanwhile, Officer Thomas Ashley stated that he was in the SHU control room
taking care of paperwork and other duties when he saw a light go off on the switchboard
at approximately 11:27 p.m., indicating that a duress button had been pushed in Tyree’s
cell. According to his affidavit, he, too, reacted immediately by going to the range and
alerting Officer Seaman, who then called for further assistance.

5
have created a genuine issue of material fact sufficient to defeat summary judgment.” Id.

Accordingly, the Court vacated and remanded for further proceedings.

During discovery on remand, Tyree sought information and documents regarding

SHU staff duties, the required response time to duress alarms, and alarm response training.

The Government provided the titles of certain documents but averred that there were no

regulations regarding the response time to a duress alarm. It did, however, provide redacted

inspection reports for the alarm system.

Tyree also sought the relevant Post Orders—that is, specific instructions for each

particular staff position that describe how that function should be executed. The

Government observed that although responsive records existed, security concerns dictated

that the documents not be released to Tyree. The district court upheld the Government’s

objection but required that the Post Orders be provided for in camera review, which it

conducted.

After certain discovery was conducted and while a number of Tyree’s discovery

motions were pending, the Government filed a motion to dismiss for lack of subject matter

jurisdiction, arguing that Tyree’s allegations against the officers implicated a discretionary

function—that is, governmental conduct involving an element of judgment or choice that

is grounded in policy considerations—such that Tyree could not maintain an FTCA suit

based on the BOP officers’ alleged conduct. In his response, Tyree averred that the only

claim he sought to pursue was that the officers failed to respond to the alarm within the

mandatory timeframe set forth by BOP policies and Program Statements—namely, ninety

6
seconds. Given this, Tyree argued, the discretionary function exception to the FTCA was

not applicable.

The district court concluded that the exception applied and granted the

Government’s motion to dismiss. As to the first prong of the discretionary function

analysis—which asks whether the alleged government action involves an element of

judgment or choice—the court found that although BOP Program Statement

§ 3420.09(10) 5 required that BOP staff “respond immediately, effectively, and

appropriately during all emergency situations,” officers had the discretion in the event of

an inmate altercation as to how to respond “immediately.” J.A. 120–21 (internal quotation

marks omitted). With respect to the second prong—whether the judgment implicates the

kind of policy considerations the discretionary function exception was designed to shield—

the court found the officers had the discretion to determine the appropriate time to intervene

based upon considerations of inmate and staff safety, as well as other institutional concerns.

The district court thus concluded that the officers’ response to the alarm was necessarily a

policy-based decision and that the discretionary function exception applied.

Meanwhile, before the district court issued its order, Tyree filed additional evidence

that LSCI Butner was accredited by the American Correctional Association (“ACA”) and

that ACA standards required a four-minute response time to medical emergencies. After

the district court dismissed his complaint, Tyree filed a Rule 59(e) motion for

reconsideration, arguing the court had failed to consider this additional evidence. The court

5
Now BOP Program Statement § 3420.11(6). J.A. 120.

7
denied the motion, reiterating that the discretionary function exception applied because

BOP staff retained the discretion to determine how to respond to an emergency situation.

Tyree timely appealed. 6 This Court has jurisdiction under 28 U.S.C. § 1291.

II.

On appeal, Tyree contends that he alleged a plausible FTCA claim that: (1) BOP

officers violated a mandatory, non-discretionary duty by failing to respond to the duress

alarm within a specific timeframe; and (2) even assuming there was no required response

time, the BOP officers acted negligently in delaying their response. In reviewing this

appeal, we first consider “the proper legal framework for resolving a Rule 12(b)(1) motion

6
Prior to considering the rest of Tyree’s arguments, we must first address two points
raised in his initial pro se appeal brief, filed before the appointment of counsel. First, in the
district court, Tyree filed a motion to strike the Government’s reply in support of its motion
to dismiss because, according to Tyree, its reply was postmarked four days after the last
day for service under the prisoner mailbox rule. See Houston v. Lack, 487 U.S. 266, 270
(1988). The court denied the motion, ruling that the Government’s reply was timely filed.
We agree: the mailbox rule that Tyree seeks to apply governs the determination of when a
case is filed “in the substantive sense for statute of limitations purposes” and the timeliness
of other prisoner filings. Jones v. Bertrand, 171 F.3d 499, 501 (7th Cir. 1999). But the
determination of when a case is filed “in the procedural sense for being placed on the
court’s docket” is governed by the court’s general filing rules. Id. Given that the court
followed established practice in determining the reply’s timeliness, its ruling was not an
abuse of discretion. See Marryshow v. Flynn, 986 F.2d 689, 693 (4th Cir. 1993).
Second, Tyree contended that the district court erred in failing to sanction the
Government for being uncooperative during discovery, and that the court erroneously
failed to place any findings on the record with regard to its in camera review of the Post
Orders. But we discern no abuse of discretion in the district court’s discovery rulings, see
United States v. Ancient Coin Collectors Guild, 899 F.3d 295, 323 (4th Cir. 2018), given
that the court admonished the Government about any delay, overruled several of its
objections, and reviewed the documents in camera. We therefore affirm the district court
in these respects.

8
to dismiss” in the context of an FTCA claim and then turn to Tyree’s two primary

contentions. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). In doing so, we

review the district court’s decision dismissing the case for lack of subject matter

jurisdiction de novo, Rich v. United States, 811 F.3d 140, 144 (4th Cir. 2015), while

keeping in mind Tyree’s pro se status at the time of the filing of the complaint. Hill v.

Braxton, 277 F.3d 701, 707 (4th Cir. 2002).

A.

Although the United States is typically immune from suit, the FTCA waives this

sovereign immunity when the federal government “would be liable to the claimant in

accordance with the law of the place where the act or omission occurred” for certain torts,

such as negligence, committed by federal employees acting within the scope of their

employment. 28 U.S.C. § 1346(b)(1). However, the discretionary function exception to the

FTCA limits this waiver. This exception provides that the Government cannot be held

liable “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 challenged conduct falls within the scope of this exception if it fulfills a two-

pronged test. First, the conduct at issue must involve an element of judgment or choice.

When a statute, regulation, or policy prescribes a mandatory course of action, the employee

has no rightful option but to adhere to the directive and the exception does not apply.

Second, if the challenged conduct does involve an element of judgment or choice, the

exercise of such judgment must be grounded in considerations of “social, economic, and

9
political policy.” United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig

Airlines), 467 U.S. 797, 814 (1984). The focus of this latter inquiry is not on the employee’s

subjective intent in exercising the discretion conferred, but on the nature of the actions

taken and whether they are susceptible to policy analysis. United States v. Gaubert, 499

U.S. 315, 322–23 (1991). Only if both prongs are met is the challenged conduct shielded

by the exception.

As a result, the Government’s argument that the discretionary function exception

applies is an assertion that the court lacks subject matter jurisdiction. See Indem. Ins. Co.

of N. Am. v. United States, 569 F.3d 175, 180 (4th Cir. 2009). And in challenging subject

matter jurisdiction, a defendant may present one of two types of challenges. A defendant

may raise a facial challenge arguing that even if all the alleged facts are true, the complaint

nonetheless fails to establish jurisdiction. See Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.

1982). In such instances, the facts alleged in the complaint are taken as true and the motion

must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction.

In the alternative, a defendant can mount a factual challenge, contending “that the

jurisdictional allegations of the complaint [are] not true.” Id. In such instances, the

presumption of truthfulness normally accorded to a complaint’s allegations does not apply,

and the district court is entitled to decide disputed issues of fact in order to determine if

subject matter jurisdiction exists. Id.

Either way, courts should be mindful that “where the jurisdictional facts are

intertwined with the facts central to the merits of the dispute, a presumption of truthfulness

should attach to the plaintiff’s allegations.” Kerns, 585 F.3d at 193 (internal quotation

10
marks omitted). “In that situation, the defendant has challenged not only the court’s

jurisdiction but also the existence of the plaintiff’s cause of action. A trial court should then

afford the plaintiff the procedural safeguards—such as discovery—that would apply were

the plaintiff facing a direct attack on the merits.” Id. As the Supreme Court has elaborated,

a trial court should dismiss under Rule 12(b)(1) only when the jurisdictional allegations

are “clearly . . . immaterial and made solely for the purpose of obtaining jurisdiction or

where such a claim is wholly insubstantial and frivolous.” Bell v. Hood, 327 U.S. 678, 682

(1946).

In this case, it appears the Government makes the first type of challenge, contending

that Tyree’s complaint fails on its face to allege facts that, even if assumed true, could

establish subject matter jurisdiction. See J.A. 58 (observing that even if BOP staff

“responded too slowly to the assault,” “this type of decision” would be protected by the

discretionary function exception). Therefore, we must “assume the truthfulness of the facts

alleged.” Kerns, 585 F.3d at 193.

B.

1.

With this legal framework in mind, we turn now to the district court’s dismissal of

Tyree’s claims for lack of subject matter jurisdiction. In reviewing his complaint, the

district court concluded that the challenged conduct—the allegedly delayed response by

BOP officers to the duress alarm—could not form the basis for FTCA liability because it

was shielded by the discretionary function exception. And in finding that both prongs of

the exception had been met, the court concluded that the challenged conduct was predicated

11
on emergency response procedures that involved: (1) “an element of judgment or choice”

(or were inapplicable to Tyree’s situation), J.A. 119, as well as (2) policy considerations to

“determine the appropriate time to intervene” (including “consideration[s] of inmate and

staff safety, the size of the correctional facility, and any other incidents or events occurring

at the facility”). J.A. 122. At bottom, the court read the complaint as alleging delay arising

out of the exercise of discretionary functions—which, given the exception, could not give

rise to FTCA liability. However, because the complaint can also fairly be read as alleging

delay arising out of inattention or carelessness, we conclude that the district court erred in

dismissing the complaint without further development of the jurisdictional facts.

2.

As an initial matter, we agree with the district court’s conclusion with respect to the

first prong that the BOP policies Tyree cites either: (1) do not set forth a mandated, non-

discretionary response such that they meet the first prong of the discretionary function

exception or (2) are inapplicable to his situation.

For instance, Tyree argues that BOP Program Statement § 3420.09(10)—which

provides that “it is mandatory that employees respond immediately, effectively, and

appropriately during all emergency situations”—imparts a non-discretionary duty on BOP

staff. J.A. 120. But the Statement neither defines what constitutes an “immediate[]”

response, nor does it provide any additional guidance, thus retaining some element of

judgment or choice in its execution. This is in contrast to other BOP directives that do not

provide any room for such judgment, such as BOP Program Statement § 6031.04, which

sets forth a “four-minute response to life- or limb-threatening medical emergencies.” J.A.

12
92, 119–20. While § 6031.04 removes any discretion as to when to respond—requiring a

response within four minutes—§ 3420.09(10) does not. Rather, it leaves a discretionary

judgment as to what constitutes an “immediate[], effective[], and appropriate[]” response

in a particular circumstance. Given this, the district court correctly concluded that BOP

staff retained an element of judgment or choice as to the implementation of § 3420.09(10),

satisfying the first prong of the discretionary function exception. 7

Tyree also points to BOP Program Statement § 6031.04—which, as noted above,

provides that ACA Standards “require a four-minute response to life- or limb-threatening

medical emergencies,” J.A. 92, 119–20—as setting out a mandatory, non-discretionary

response timeframe. We agree, but because this Program Statement applies only to medical

emergencies, and Tyree was not declaring a medical emergency at the time the button was

activated, this Statement is inapplicable in his case. 8 In sum, we affirm the district court’s

conclusions that the BOP and ACA standards did not impose a mandatory duty on the BOP

officers to respond within a particular timeframe, thereby fulfilling the first prong of the

discretionary function analysis.

3.

7
We also agree with the district court’s finding that the Post Orders—which we
have reviewed—do not show mandated, non-discretionary responses to an emergency
alert. We therefore affirm the district court’s conclusions in this respect.
8
Further, although it is not entirely clear from the face of the Program Statement,
the standard appears to apply to medical professionals at LSCI, not the BOP correctional
officers whose actions Tyree challenges. In turn, Tyree never alleged that medical staff
violated the four-minute directive.

13
 But this does not end our inquiry, given that Tyree’s complaint “is susceptible to

various readings.” Coulthurst v. United States, 214 F.3d 106, 109 (2d Cir. 2000). And we

are mindful of these possible readings given Tyree’s pro se status at the time of the drafting

of his complaint and through the following proceedings until the instant appeal. After all,

“the long-standing practice is to construe pro se pleadings liberally” given that a “pro se

prisoner”—in contrast to a “seasoned . . . practitioner”—“is generally less able to

anticipate” issues that may result in the dismissal of his complaint. Hill, 277 F.3d at 707.

Consequently, we have consistently noted that “a complaint, especially a pro se complaint,

should not be dismissed summarily unless ‘it appears beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle him to relief[.]’” Gordon

v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978) (quoting Haines v. Kerner, 404 U.S. 519,

520–21 (1972) (per curiam)).

Here, we conclude that at least one of two readings of Tyree’s complaint may give

rise to a set of facts that fails to satisfy the second prong of the discretionary function

exception. As noted, this prong asks whether the exercise of judgment was grounded in

considerations of “social, economic, and political policy.” Varig Airlines, 467 U.S. at 814.

And in this case—assuming the officers delayed in responding to the alarm—ascertaining

which set of facts occurred will determine whether the discretionary function exception has

been fulfilled.

On the one hand, the alleged delay may have been, as the district court concluded,

the result of legitimate policy considerations, such as accounting for other ongoing inmate

issues. In such an instance, the exercise of judgment would be of the type the discretionary

14
function exception was designed to protect—that is, those decisions “grounded in . . .

social, economic, or political goals[.]” Gaubert, 499 U.S. at 323. And if that were the case,

the second prong of the discretionary function exception would be fulfilled and the

Government shielded from suit by the exception.

On the other hand, “the complaint’s allegations of negligence” in the failure to

respond promptly “might also refer to a very different type of negligence.” Coulthurst, 214

F.3d at 109. “Perhaps the corrections officer[s]” on duty at the time were “simply asleep”

or “left the unit unattended in order to enjoy a cigarette or a snack.” Palay, 349 F.3d at 432.

“In that case,” this Court has previously concluded, “the prison officials would not be

shielded by the discretionary function exception because no policy considerations would

be implicated.” Rich, 811 F.3d at 147. Rather, such conduct would be “marked by

individual carelessness or laziness,” id. (citing Coulthurst, 214 F.3d at 106), thereby failing

to fulfill the second prong of the discretionary function exception. See also Palay, 349 F.3d

at 432 (observing “[t]hat type of carelessness would not be covered by the discretionary

function exception, as it involves no element of choice or judgment grounded in public

policy considerations” and would therefore fail to fulfill the second prong of the exception);

Coulthurst, 214 F.3d at 109 (“Such negligent acts neither involve an element of judgment

or choice within the meaning of Gaubert nor are grounded in considerations of

governmental policy.”). Thus, we concluded in Rich that an injured prisoner alleging that

BOP officials failed to search his attackers properly before placing them in a recreation

area together was entitled to jurisdictional discovery in part because it was “possibl[e]”

15
based on his complaint that the complained-of injury resulted from the officials’ “careless

inattention” during the performance of pat-downs. 811 F.3d at 147.

Here, “with nothing more” than Tyree’s complaint and very limited discovery to go

on, it is unclear whether the officers who responded to the duress alarm were properly

exercising discretion grounded in policy considerations. Palay, 349 F.3d at 429, 432

(noting that “being at the pleading stage of the case, there is much we do not know about

the circumstances that led to [the] injury”). Either way, “the complaint is susceptible to

various readings,” Coulthurst, 214 F.3d at 109, and the foregoing possibilities are fairly

asserted by the complaint’s allegation that the officers’ response was the result of

“deliberate indifference and negligence.” J.A. 17. That is, the complaint is broad enough

to assert both the types of negligence that are covered by the exception and those that could

fall outside of it. Because at this stage of the proceedings a liberally construed pro se

complaint is susceptible to different readings, the district court erred in assuming that the

complaint involved only discretionary functions. 9

At bottom, “we cannot say that no set of facts consistent with [his] complaint would

entitle him to relief, and we must be able to say that before dismissing [his] claims.” Palay,

349 F.3d at 432; see also Rich, 811 F.3d at 147–48 (observing that prisoner was “entitled

9
If further discovery supports the claim that the delayed response was the result of
“individual carelessness or laziness,” we note that Tyree may be able to establish
jurisdiction even if the discretionary function exception would typically apply to the
manner in which BOP officers respond to duress alarms. Rich, 811 F.3d at 147 (noting that
a plaintiff “may be able to establish jurisdiction” if it is possible that “careless inattention”
resulted in the complained-of injury); see also Coulthurst, 214 F.3d at 111 (“If the plaintiff
can establish that negligence [stemming from absent-mindedness or laziness] occurred, his
claims are not barred by the [discretionary function exception.]”)

16
to the safeguard of discovery before his complaint is dismissed”). Thus, “[i]t remains for

his claims to be fleshed out with evidence before the court can say whether the

discretionary function exception applies.” Palay, 349 F.3d at 432. And given that there are

undeveloped and disputed jurisdictional facts that are “intertwined with the merits of

[Tyree’s] allegations, the district court should resolve the relevant factual disputes only

after appropriate discovery.” Rich, 811 F.3d at 148 (internal quotation marks omitted). We

therefore find that Tyree is entitled to remand for focused discovery as to those facts.

In particular, we observe that two central facts implicating both jurisdiction and the

merits of Tyree’s claim remain unclear. First, it remains unknown whether the officers’

response was in fact delayed (or whether, as they averred, they responded immediately).

For example, in support of the Government’s summary judgment motion, the BOP officers

provided sworn affidavits stating that they in fact immediately responded to the duress

button. But those declarations stand in conflict with Tyree’s allegation that the officers

delayed in their response in excess of ten minutes. That allegation is relevant not only to

whether the discretionary function exception applies and whether there is subject matter

jurisdiction over this claim, but also to the merits of Tyree’s negligence allegation. And

where “a jurisdictional inquiry would require the consideration of merits-based evidence,”

“[d]iscovery provides a procedural safeguard” prior to the dismissal of a complaint. Rich,

811 F.3d at 146–47 (observing that discovery was warranted to resolve a similar conflict

between the prisoner’s allegations and the prison officials’ declarations implicating both

subject matter jurisdiction and the merits). In any event, properly focused discovery on

remand would afford Tyree the opportunity to challenge the BOP officers’ statements

17
concerning their immediate response, including through depositions of Nickerson, the

officers themselves, as well as their supervisors and other personnel who may have had

direct knowledge of the situation in Tyree’s cellblock. See id. at 146 (“A period of

discovery would afford [the plaintiff] the opportunity to challenge these officials’

assertions concerning their performance [of certain BOP duties].”).

Second, if there indeed was a delay, the basis of that delay is unknown at this time.

And if a BOP policy concerning responses to emergency situations contains an implicit

reservation of discretion to delay response because of other prison priorities, that

reservation would apply only when the delay was actually attributable to those prison

priorities. But here, accepting Tyree’s allegations as true, the officers did not exercise their

judgment as to which of a range of possible courses of action was the wisest; instead, the

officers simply delayed responding out of “deliberate indifference and negligence.” J.A.

17. Either way, some discovery will assist the court in ascertaining whether any delay was

in fact the result of individual carelessness or inattention.

Finally, we note that this remand for discovery “does not necessarily mean that

[Tyree] is entitled to trial on the basis of an ambiguous complaint.” Coulthurst, 214 F.3d

at 111. “[C]ourts frequently apply the discretionary function exception to prison officials’

efforts to ensure the safety of prisoners . . . and that may be the ultimate outcome here as

well.” Rich, 811 F.3d at 147. For instance, after limited and focused discovery into these

jurisdictional facts, “[t]he [G]overnment may compel [Tyree], by interrogatories or

otherwise, to declare what is the negligent conduct he alleges occurred and to reveal

whatever evidence he relies on to show such negligence.” Coulthurst, 214 F.3d at 111.

18
And if he is “unable to offer sufficient evidence to establish a triable issue of fact on any

theory of negligence outside the scope of [the discretionary function exception,] then the

United States will be entitled to judgment.” Id.

III.

For the reasons set forth above, we affirm the district court’s conclusion that BOP

Program Statement § 3420.09(10) fails to mandate a non-discretionary response to the

duress alarm. However, we vacate the remainder of the district court’s judgment and

remand for additional proceedings—including limited and focused discovery into the

jurisdictional facts set out above—consistent with this opinion.

AFFIRMED IN PART;
VACATED IN PART AND
REMANDED WITH INSTRUCTIONS

19
DIANA GRIBBON MOTZ, Circuit Judge, concurring in part:

I concur in the majority opinion, except for the conclusion that no Bureau of Prisons

(“BOP”) policy removes discretion from the BOP officers. As we have recently explained,

“unduly generous interpretations of the [Federal Tort Claims Act] exceptions run the risk

of defeating the central purpose of the statute, which waives the Government’s immunity

from suit in sweeping language.” Sanders v. United States, 937 F.3d 316, 327 (4th Cir.

2019) (quoting Dolan v. U.S. Postal Serv., 546 U.S. 481, 492 (2006)). The majority’s

interpretation enhances this risk because it finds discretion even though the BOP created a

mandatory duty in its employees.

BOP Program Statement § 3420.09(10) recognizes that “failure to respond to an

emergency may jeopardize the security of the institution, as well as the lives of staff or

inmates.” Accordingly, it mandates that prison employees “respond immediately” to all

emergency situations. Id. If an employee fails to comply, that employee could be fired,

“even if that emergency turned out to be a false alarm.” Id. at Attachment A ¶ 3.

The directive that it is “mandatory” to respond “immediately” removes discretion

from employees in determining how quickly to respond to an emergency. Although the

word “immediately” does not require action within a set number of minutes, it does require

a precise response — action “without interval of time.” See Immediately, Merriam-

Webster, https://www.merriam-webster.com/dictionary/immediately (last visited June 26,

2020). Accordingly, as our sister circuits have found, a policy requiring “immediate[]”

action leaves officers no discretion in choosing when to act. See Hurst v. United States,

882 F.2d 306, 309–10 (8th Cir. 1989) (holding that requirement to “immediately” act

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creates nondiscretionary duty as to when to act); Garza v. United States, 161 F. App’x 341,

346 (5th Cir. 2005) (finding duty to report abnormal behavior “immediately” falls outside

the discretionary function exception).

In sum, the BOP Program Statement removes discretion from employees in deciding

whether to disregard or delay responding to an emergency, and so places this case outside

the discretionary function exception. For this reason, I would vacate the entirety of the

judgment of the district court.

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