FILED
NOT FOR PUBLICATION FEB 27 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JANE DOE, No. 11-16394
Plaintiff - Appellant, D.C. No. 1:08-cv-00517-BMK
v.
MEMORANDUM*
UNITED STATES OF AMERICA and
JEFFREY KALANI CRUZ,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Hawaii
Barry M. Kurren, Magistrate Judge, Presiding
Argued and Submitted February 11, 2013
Honolulu, Hawaii
Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges.
Plaintiff Jane Doe filed this action under the Federal Tort Claims Act
("FTCA"), 28 U.S.C. § 1346, and Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), against the United States and
Defendant Jeffrey Kalani Cruz, a correctional officer at the Federal Detention
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Center in Honolulu. She appealed the district court’s order dismissing her FTCA
claims for lack of subject-matter jurisdiction and granting summary judgment in
favor of Defendants as to the Bivens claim. During oral argument, Plaintiff
conceded her Bivens claim and those FTCA claims that relate to the allegedly
negligent hiring, training, and supervision of prison employees. We therefore
consider only her FTCA claim that arises from the alleged negligence of Cruz.
Reviewing de novo, Alfrey v. United States, 276 F.3d 557, 561 (9th Cir. 2002), we
reverse the district court’s order as to that claim and remand for further
proceedings.
The discretionary function exception to federal courts’ jurisdiction under the
FTCA applies only if "the challenged actions involve an ‘element of judgment or
choice.’" Terbush v. United States, 516 F.3d 1125, 1129 (9th Cir. 2008) (quoting
United States v. Gaubert, 499 U.S. 315, 322 (1991)); see also Berkovitz ex rel.
Berkovitz v. United States, 486 U.S. 531, 536–37 (1988) (holding that "judgment
or choice" is the first of two requirements for the exception to apply). Here, Cruz
stated to FBI investigators that, during training, he had been told not to go into an
area that lacks video surveillance alone with a female inmate. Viewed in the light
most favorable to Plaintiff, Alfrey, 276 F.3d at 561, that statement suggests that the
prison had a mandatory policy against putting female inmates in the same kind of
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situation in which Cruz left Plaintiff with Bureau of Prisons electrician Markell
Milsap. Although Cruz later characterized the instruction that he received during
training as a strong "suggestion," that testimony merely creates a factual dispute as
to whether the prison policy against leaving inmates alone with individual prison
employees was mandatory or discretionary. See, e.g., Espinosa v. City of San
Francisco, 598 F.3d 528, 538 (9th Cir. 2010) (denying summary judgment in part
because inconsistent testimony revealed a material factual dispute). Because Cruz
may have violated a mandatory policy, the district court erred in ruling, as a matter
of law, that his decisions involved an "element of judgment or choice." See
Terbush, 516 F.3d at 1128 (stating that the government has the burden of proving
that the discretionary function exception applies).
Our decision is consistent with Alfrey. In Alfrey, a prison official’s
response to reported inmate threats was held to be a discretionary judgment
because it required that he "set priorities among all extant risks: the risk presented
by the reported threat, along with the other risks that inevitably arise in a prison."
276 F.3d at 565 (emphases added). Here, Cruz allegedly created the risk to
Plaintiff through his own decision—possibly in violation of prison policy—to
leave Plaintiff alone in an unsupervised closet with Milsap. Alfrey does not shield
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that decision merely because Cruz was then left to weigh the risk that he had
created through his own alleged negligence against other extant risks.
Because the evidentiary record could demonstrate that the challenged actions
of Defendant Cruz do not meet the first Berkovitz requirement, the district court
erred in dismissing the action under the discretionary function exception.
AFFIRMED in part; REVERSED in part and REMANDED. The parties
shall bear their own costs on appeal.
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