            Case: 13-11076    Date Filed: 03/03/2014   Page: 1 of 5


                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 13-11076
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 5:10-cv-00639-WTH-TBS



JAMES MCFARLAND,

                                                             Plaintiff-Appellant,

                                    versus

WARDEN, et al.,

                                                                      Defendants,

UNITED STATES OF AMERICA,

                                                            Defendant-Appellee.

                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________

                                (March 3, 2014)

Before HULL, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:
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      James McFarland, a federal prisoner, appeals pro se the summary judgment

against his complaint that the United States was liable under the Federal Torts

Claims Act for injuries he suffered after fellow inmates stabbed him at the United

States Penitentiary at Coleman, Florida. McFarland complained that officials were

negligent when they understaffed the prison; failed to patrol the recreation yard;

failed to monitor metal detectors; and provided inadequate wound care that caused

him to develop an abscess. We vacate in part the summary judgment against

McFarland’s complaints about staffing and deployment of guards and remand for

the district court to dismiss those complaints for lack of subject matter jurisdiction,

and we affirm in part the summary judgment against McFarland’s complaint about

his medical care.

      The Act provides a limited waiver of sovereign immunity for the United

States for claims in tort, but exempts from that waiver of immunity “[a]ny claim

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 a government

employee. 28 U.S.C. § 2680(a); see Cohen v. United States, 151 F.3d 1338, 1340

(11th Cir. 1998). That exemption applies if the conduct in question “involves an

element of judgment or choice,” and if the “judgment is grounded in considerations

of public policy.” Cohen, 151 F.3d at 1341 (internal quotations marks and

citations omitted). “When the discretionary function exception to the [Act]


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applies, no federal subject matter jurisdiction exists.” U.S. Aviation Underwriters,

Inc. v. United States, 562 F.3d 1297, 1299 (11th Cir. 2009).

      The district court lacked jurisdiction to consider McFarland’s complaints

about inadequate staffing and deployment of prison guards. The conduct that

McFarland challenged fell within the discretionary function exception to the Act,

which made the United States immune from liability. The Bureau of Prisons is

obligated to “provide for the safekeeping, care, and subsistence” of all federal

prisoners, 18 U.S.C. § 4042(a)(2), but officials at Coleman exercised discretion in

determining how many officers to have on duty, where to position them, and

whether to use metal detectors, see Bureau of Prisons Policy Statement 5521.05 ¶ 6

(providing that the Warden “may install metal detection services within the

institution as necessary” and that “[a] metal detector search may be done in

addition to [a] pat search”). Although McFarland argues that the officials’

discretion was constrained by two memos dated July 2008 requiring “[i]nmates [to]

walk through metal detectors normally” and to submit “[a]ll [their] items . . . [to a]

visual[] search[] and . . . [screening] through the metal detectors,” those memos

were addressed to inmates regarding their conduct, not to prison guards about their

responsibilities. The discretionary decisions of officials about staffing and

deployment of guards at Coleman were grounded in security concerns. As

explained in a sworn declaration prepared by Ronald Proffitt, a special


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investigator, random monitoring of metal detectors and of officers’ movements

prevents inmates from determining a routine security schedule. Because the

district court lacked jurisdiction to consider McFarland’s complaints about staffing

and deployment of guards, we vacate the summary judgment against those

complaints and remand for the district court to dismiss them for lack of subject

matter jurisdiction. See Cohen, 151 F.3d at 1340.

      The district court did not err by entering summary judgment against

McFarland’s complaint about his medical care. No genuine dispute existed about

whether officials breached the prevailing professional standard of care or

proximately caused McFarland’s injuries. McFarland alleged that the medical staff

provided inadequate wound care that caused him to develop an abscess, but he

could not rely on his conclusory assertions to avoid summary judgment. See Ellis

v. England, 432 F.3d 1321, 1327 (11th Cir. 2005) (“[M]ere conclusions and

unsupported factual allegations . . . are insufficient to withstand a motion for

summary judgment.”). Sworn declarations from Dr. Ivan Negron and Dr. Olga

Grajales established, without dispute, that McFarland received proper treatment

and counseling about his wounds and that there was no correlation between the

care of his wounds and his abscess.

      We AFFIRM in part the summary judgment against McFarland’s complaint

about his medical care, but because the discretionary function exception deprived


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the district court of jurisdiction, we VACATE in part the summary judgment

against McFarland’s complaints about staffing and deployment of guards and

REMAND for the district court to dismiss those complaints for lack of subject

matter jurisdiction.

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.




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