     Case: 12-20762      Document: 00512512507         Page: 1    Date Filed: 01/27/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit

                                                                                     FILED
                                      No. 12-20762                            January 27, 2014
                                                                                Lyle W. Cayce
JAMES ELI HUFF, II,                                                                  Clerk


                                                 Plaintiff - Appellant,

v.

LATOINA NEAL; SCOTT FAUVER; UNKNOWN NAMED FEDERAL
BUREAU OF PRISONS MEDICAL STAFF; UNITED STATES OF
AMERICA,

                                                 Defendants - Appellees.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CV-2000



Before JONES, ELROD, and HAYNES, Circuit Judges.
PER CURIAM: *
       James Eli Huff, II, a federal prisoner proceeding pro se, filed suit against
Latoina Neal, Scott Fauver, unknown medical staff at the federal Bureau of
Prisons (“BOP”), and the United States of America (collectively, the
“defendants”), asserting claims pursuant to Bivens v. Six Unknown Agents of
the Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Tort
Claims Act (“FTCA”). The district court granted summary judgment to the


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 12-20762      Document: 00512512507        Page: 2     Date Filed: 01/27/2014



                                     No. 12-20762
defendants on the Bivens claims and dismissed the FTCA claims. Because
Huff failed to exhaust his administrative remedies with respect to the Bivens
claims and because the defendants’ actions underlying the FTCA claims fell
within the discretionary function exception, we AFFIRM.
                                            I.
       Huff was incarcerated at the Federal Correctional Institution in Big
Spring, Texas. 1 On July 6, 2007, Huff informed Corrections Officer John
Skidmore that a violent prison gang, the Hermanos Pistoleros Latinos
(“Pistoleros”), had threatened several inmates over mealtime seating
arrangements. The next day, in investigating this claim, Lieutenant Neal
openly called Huff into her office; after he left, she called three Pistoleros into
her office. According to Huff, Lieutenant Neal’s “open investigation procedure”
portrayed Huff as a snitch. Huff then reported to Officer Skidmore that he had
been threatened by a Pistoleros member for being a snitch. On July 10, 2007,
Captain Fauver approved the placement of two Pistoleros gang members into
Huff’s unit. Two days later, on July 12, 2007, three Pistoleros gang members
entered Huff’s cell and, while yelling “pinche ratto,” violently attacked him.
Huff was placed in the Special Housing Unit (“SHU”) following the attack.
Medical personnel noted that Huff had an injured nose; multiple abrasions and
bruises on his forehead, neck, arms, torso, legs and bottoms of his feet;
footprints on his back; a brain stem concussion that caused vision impairment,
headaches, and dizziness; and psychological injuries.
       On July 20, 2007, Huff was released from the SHU.                  At that time,
according to Huff, he “wanted to file a formal complaint against [Lieutenant]
Neal but feared more retaliation. [Lieutenant] Jackson inform[ed] Huff that



      1 We present the facts, as we must, in the light most favorable to Huff. See Gulf and
Miss. River Transp. Co., Ltd. v. BP Oil Pipeline Co., 730 F.3d 484, 488 (5th Cir. 2013).
                                            2
     Case: 12-20762      Document: 00512512507         Page: 3    Date Filed: 01/27/2014



                                      No. 12-20762
Captain Fauver is investigating the incident and to just wait for his
determination.”        Lieutenant Jackson again informed Huff that the
investigation was ongoing on August 3, 2007.
       Huff filed an informal complaint (form BP-8) with Captain Fauver on
August 20, 2007, stating “his reluctance to file a complaint fearing more
retaliation, and complaining about [Lieutenant] Neal’s conduct portraying
Huff as a snitch.” On November 13, 2007, Huff filed a formal complaint (form
BP-9).
       On June 25, 2009, Huff filed a lawsuit against the defendants in their
individual and official capacities, bringing claims under Bivens and the FTCA.
Huff alleged that the defendants retaliated against him and failed to protect
his safety. The defendants moved for summary judgment on the Bivens claims
brought against them in their individual capacities, arguing that Huff had
failed to exhaust his administrative remedies. Huff contended that he had
properly exhausted his remedies and, in the alternative, that the exhaustion
requirement should be excused. The district court granted the motion on
failure-to-exhaust grounds. 2 The defendants later filed a motion to dismiss the
FTCA claims pursuant to Federal Rule of Civil Procedure 12(b)(1), which the
district court also granted, concluding that the defendants’ alleged actions fell
within the discretionary function exception and that therefore subject matter
jurisdiction was lacking. 3        The district court denied Huff’s motion for
reconsideration. Huff timely appealed.



       2  The district court dismissed Huff’s Bivens claims against the defendants in their
official capacities based on sovereign immunity. Huff explicitly waives any challenge to the
dismissal of his Bivens claims against the defendants in their official capacities.

       3  The district court also dismissed the FTCA claims pursuant to Rule 12(b)(6).
Because we ultimately conclude that the district court was correct in dismissing the claims
for lack of jurisdiction, we do not reach the failure-to-state-a-claim issue.
                                             3
    Case: 12-20762    Document: 00512512507     Page: 4   Date Filed: 01/27/2014



                                 No. 12-20762
                                      II.
                                      A.
      Huff challenges the district court’s grant of summary judgment in favor
of the defendants on his Bivens claims. We review a summary judgment de
novo. Dillon v. Roger, 596 F.3d 260, 266 (5th Cir. 2010). Summary judgment
is appropriate when “the pleadings, the discovery and disclosure materials on
file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c). If the moving party bears his burden of showing that no genuine
issue exists, the burden then shifts to the nonmoving party to produce evidence
or set forth specific facts showing the existence of a genuine issue for trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). We view the evidence and
draw inferences therefrom in the light most favorable to the non-moving party.
Mississippi River, 730 F.3d at 488.
                                      B.
      Huff was required to exhaust administrative remedies for his Bivens
claims. Huff argues that he properly exhausted administrative remedies
because he timely initiated the BOP’s administrative process when he notified
BOP staff of the imminent threats of assault by gang members. Huff contends
that there is no genuine issue of material fact as to whether the defendants
had subjective knowledge that he faced serious harm.         In support of his
position, Huff relies on Smith v. Brenoettsy, in which we stated that “all that
we (and the Supreme Court) have required is that the official . . . be aware of
facts from which the inference could be drawn that a substantial risk of serious
harm exists.” 158 F.3d 908, 912 (5th Cir. 1998) (internal quotation marks
omitted) (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
      Huff’s reliance on Farmer is misplaced. Under the Prison Litigation
Reform Act (“PLRA”), an inmate must exhaust available administrative
                                       4
    Case: 12-20762    Document: 00512512507     Page: 5   Date Filed: 01/27/2014



                                 No. 12-20762
remedies offered by the agency before bringing a civil rights claim against
officials in their individual capacities. 42 U.S.C. § 1997e(a) (as amended 1996);
Woodford v. Ngo, 548 U.S. 81, 93 (2006) (“[T]he PLRA exhaustion requirement
requires proper exhaustion.”).     In Porter v. Nussle, the Supreme Court
announced that the “PLRA’s exhaustion requirement applies to all inmate
suits about prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force or some other
wrong.” 534 U.S. 516, 532 (2002). The defendants in an inmate’s lawsuit “must
establish beyond peradventure all of the essential elements of the defense of
exhaustion to warrant summary judgment in their favor.” Dillon, 596 F.3d at
266 (citation omitted).
      The BOP has a four-step process for resolving grievances by inmates.
First, an inmate must attempt to informally resolve the issue with the staff.
28 C.F.R. § 542.13(a). The Inmate Handbook for the facility in which Huff was
incarcerated instructs that an inmate must attempt informal resolution by
filing a form BP-8. Second, if informal resolution is unsuccessful, the inmate
must submit a formal written Administrative Remedy Request (form BP-9) to
the warden within twenty days after the date on which the basis for the request
occurred. 28 C.F.R. § 542.14. Third, if the inmate is not satisfied with the
warden’s response, he may submit an appeal (form BP-10) to the Regional
Director within twenty days of the date of the warden’s response. 28 C.F.R.
§ 542.15. Fourth, if the inmate is not satisfied with the Regional Director’s
response, the inmate may submit an appeal (form BP-11) to the General
Counsel within thirty days of the Regional Director’s response. 28 C.F.R.
§ 542.15. An inmate has not exhausted his administrative remedies until his
claim has been denied at all levels.
      The defendants’ summary judgment evidence consisted of an affidavit
from Jennifer Hanson, the Senior Attorney-Advisor for the BOP, and
                                       5
    Case: 12-20762    Document: 00512512507     Page: 6   Date Filed: 01/27/2014



                                 No. 12-20762
authenticated computerized records. In her affidavit, Hansen outlined the
procedures set forth above and attested, in pertinent part, to the following.
The BOP does not retain copies of rejected administrative requests but instead
returns them to the inmate. A review of BOP computerized administrative
remedy records revealed that Huff failed to exhaust administrative remedies
relative to the July 12, 2007, incident and the related issues he raised in his
complaint. Because Huff’s claims involved allegations of staff misconduct, he
should have filed his request for an administrative remedy at the institution
level via a BP-9 within twenty days of the incident. Huff attempted to file a
BP-9 regarding the July 12, 2007, incident on November 13, 2007.           That
request was rejected on November 27, 2007, as untimely because it was not
filed within twenty days of the incident.
      In response to the defendants’ motion for summary judgment, Huff
asserted, among other things, that he reasonably relied on Lieutenant
Jackson’s statements that Captain Fauver was investigating the incident and
that Huff should wait until Captain Fauver’s report was issued to proceed with
a complaint.    Huff submitted an affidavit in which he attested that he
exhausted his administrative remedies to the fullest extent permitted by “BOP
Program Statement 1330.16” and that the defendants failed to respond to his
BP-8 request for an informal resolution.           Huff attached a verified
“Administrative Remedy Compendium,” asserting that: Lieutenant Jackson
and BOP staff told Huff on August 17, 2007, that Captain Fauver’s
investigation was ongoing; on August 20, 2007, Huff filed a BP-8 to the
attention of Captain Fauver, stating that he was reluctant to file a complaint
because he feared retaliation; Huff was transferred on October 23, 2007, to a
facility in Arkansas; on November 13, 2007, Huff filed a BP-9, stating that he
had not received a response to his BP-8. Huff also attached, among other
things, copies of his August 20, 2007, and November 13, 2007, filings.
                                       6
    Case: 12-20762    Document: 00512512507       Page: 7    Date Filed: 01/27/2014



                                 No. 12-20762
      The district court determined that there was no genuine issue of material
fact as to whether Huff had exhausted his administrative remedies.             The
district court explained that “the only evidence Huff cited was his own
declaration   containing    conclusory       statements     that   he   exhausted
administrative remedies, that the BOP did not comply with its own
regulations,” and that it delayed its response to his request for informal
resolution. The district court also concluded that Huff was not excused from
the exhaustion requirement.
      Huff argues that his evidence shows that he properly exhausted because
he began informal resolution on August 20, 2007, was transferred to a facility
in Arkansas on October 23, 2007, and filed a BP-9 on November 13, 2007, as
soon as he received his property. He also contends that, under the “Best
Evidence Rule,” the defendants’ computer-generated spread sheets of his
alleged remedy filings is not competent summary judgment evidence of
whether he attempted to exhaust administrative remedies. Federal Rule of
Civil Procedure 56 sets out the standards for summary judgment and generally
requires that evidence be sworn, certified, or verified material for a court to
consider it. Rule 56(c), (e); Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc.,
831 F.2d 77, 80 (5th Cir. 1987). Hansen attested that the computer records
were “computerized inmate records maintained by the BOP in the ordinary
course of business” and that her affidavit was based on her own personal
knowledge or information acquired through the performance of her official
duties.   Hansen swore that “[a] thorough review of BOP computerized
administrative remedy records revealed that [Huff] ha[d] failed to exhaust his
administrative remedies with respect to the issues raised in his Complaint.”
Therefore, we agree with the district court that the defendants put forth
competent summary judgment evidence.


                                         7
    Case: 12-20762    Document: 00512512507     Page: 8   Date Filed: 01/27/2014



                                 No. 12-20762
      Under 28 C.F.R. § 542.14(a), Huff was required to file both the informal
resolution request and the formal administrative remedy request within
twenty days of the complained of incident.      As noted above, the incident
occurred on July 12, 2007. Huff argues that he began the informal resolution
request on August 20, 2007. Huff’s own evidence establishes that both his
purported August 20, 2007, informal resolution request and November 13,
2007, BP-9 were submitted more than twenty days after the incident. Huff’s
unsupported allegations that he did exhaust his remedies are insufficient to
defeat the motion for summary judgment. As the district court reasoned,
conclusory allegations supported by conclusory affidavits are insufficient to
require a trial. See Shaffer v. Williams, 794 F.2d 1030, 1033 (5th Cir. 1986).
Therefore, Huff fails to raise a genuine issue of material fact as to whether he
properly exhausted administrative remedies.
      Huff argues, in the alternative, that he should be excused from the
exhaustion requirement because Lieutenant Jackson told him that he should
wait until Captain Fauver completed his investigation to file a grievance. Huff
also argues that he should be excused because his fear of retaliation rendered
his administrative remedies unavailable. We have held that “the exhaustion
requirement ‘may be subject to certain defenses such as waiver, estoppel, or
equitable tolling.’” Days v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003) (quoting
Wendell v. Asher, 162 F.3d 887, 890 (5th Cir. 1998)), overruled by implication
on other grounds by Jones v. Bock, 549 U.S. 199, 216 (2007).           We have
recognized, as a basis for excuse, circumstances where administrative
remedies are inadequate because prison officials have ignored or interfered
with a inmate’s pursuit of an administrative remedy. Holloway v. Gunnel, 685
F.2d 150, 154 (5th Cir. 1982). An inmate may be excused from the exhaustion
requirement if the inmate can demonstrate that he relied on an officer’s
statement and that such reliance effectively rendered his administrative
                                       8
       Case: 12-20762    Document: 00512512507        Page: 9     Date Filed: 01/27/2014



                                     No. 12-20762
remedies unavailable. Dillon, 596 F.3d at 268. However, “[a]n administrative
remedy does not become unavailable simply because a prisoner has not timely
or properly filed a grievance and is consequently later barred from seeking
further administrative relief.” Id. at 267 n.1 (citing Woodford, 548 U.S. at 83–
84).
        The district court relied on Johnson v. Ford, 261 F. App’x 752 (5th Cir.
2008) (unpublished), in rejecting Huff’s argument that he was excused from
the exhaustion requirement. In Johnson, as here, an inmate argued that he
should be excused from exhaustion because he was advised to proceed through
informal resolution and was advised by the warden that the matter was being
investigated. 261 F. App’x at 759. We were not persuaded: “[The inmate’s]
argument that he relied on the Warden’s order of an investigation . . . does not
serve to excuse his untimely filing of his grievance in the face of a clear . . .
deadline to file a formal grievance.” Id. at 757.
        Similarly, the evidence here demonstrates that the applicable grievance
procedure, including the relevant deadlines, was available to Huff. 4 Huff’s
knowledge of the grievance procedure generally is evinced by his filing of a BP-
8, the first step of the procedure, in August 2007 and his awareness of the BOP
Program Statement, which provides the timeliness standards for the
procedure. See, e.g., Alexander v. Tippah Cnty., 351 F.3d 626, 630 (5th Cir.
2003) (remedies were available because inmate had knowledge of grievance



        4Huff also argues that he was under the impression that BOP policy required him to
wait twenty days from the answer to his informal remedy request to file a formal grievance.
In fact, however, the BP-9 was required to be filed within twenty days of the incident. See
28 C.F.R. § 542.14. The only evidence in the record that Huff was actually confused about
the administrative procedures is an Inmate Request to Staff in which Huff asked when a BP-
9 needed to be filed. But this request was submitted in 2010, not in 2007, when the events
at issue took place. This 2010 Inmate Request cannot be used to demonstrate Huff’s
confusion over the administrative procedures in 2007.

                                            9
    Case: 12-20762       Document: 00512512507        Page: 10     Date Filed: 01/27/2014



                                      No. 12-20762
procedures); Ferrington v. La. Dep’t of Corrs., 315 F.3d 529, 532 (5th Cir. 2002)
(remedies were available because the inmate “was well aware of the general
procedural requirements described in the inmate handbook”). Moreover, Huff
has not alleged that BOP officials provided him with contrary deadlines.
Instead, Huff asserts in his affidavits that Lieutenant Jackson told him to
delay filing a BP-9 until after Captain Fauver’s investigation concluded. 5 But
Huff points to only one such statement that was made within twenty days
following the incident (i.e., on July 20, 2007).           Huff’s assertion regarding
Lieutenant Jackson’s statement, which is merely a reiteration of an allegation
in his complaint, is insufficient to raise a fact issue regarding whether BOP
officials’ actions rendered his remedies unavailable, given Huff’s knowledge of
the grievance procedures. 6 Huff also sets forth a generalized fear of retaliation
but does not allege any specific acts or threats of retaliation by any specific
officers.   See Brown v. Civigenics, 439 F. App’x 370, 371 (5th Cir. 2011)
(unpublished) (concluding that a generalized fear of retaliation does not
amount to an excuse in light of the Fifth Circuit’s “strict approach to the
exhaustion requirement”). The district court was also correct to conclude that
this conclusory assertion regarding the fear of retaliation was insufficient,
without more, to require a trial on the Bivens claims. Viewing the record in
the light most favorable to Huff, there is no genuine issue of material fact as
to whether Huff was excused from the exhaustion requirement.



       5To the extent that Huff also argues, based on Lieutenant Jackson’s statement, that
promissory and equitable estoppel should excuse his untimely exhaustion, we consider this
to be subsumed by the broader excuse-from-exhaustion argument, which we ultimately
reject.

       6Relying on Dillon, 596 F.3d 260, Huff argues that his remedies were unavailable.
However, in Dillon, there was a lack of evidence as to what the inmate knew or “could have
discovered” about the relevant deadlines. Id. at 269. Here, by contrast, the record reflects
that Huff could have discovered when a BP-9 was due.
                                            10
    Case: 12-20762    Document: 00512512507      Page: 11    Date Filed: 01/27/2014



                                  No. 12-20762
      Huff argues a number of other reasons as to why he should be excused
from the exhaustion requirement, but each is unavailing. Huff contends that
the exhaustion requirement should be excused because the prison failed to
adhere to its own policy requiring the Remedy Coordinator to be flexible and
accept untimely informal resolution requests. However, the facility’s policy did
not require prison officials to accept an untimely submission, only that
“consideration should be given.”        Huff also argues that administrative
remedies were rendered unavailable because his injuries prevented him from
filing a timely request. We have held that an inmate’s “personal inability” may
render a grievance system “unavailable” for purposes of the exhaustion
requirement. Days, 322 F.3d at 867. Although Huff alleges in his complaint,
more definite statement, and compendium that he sustained injuries as a
result of the Pistoleros’ attack, his summary judgment evidence went only to
the nature of his injuries and did not demonstrate that his injuries prevented
him from properly exhausting administrative remedies.           These conclusory
allegations cannot satisfy Huff’s summary judgment burden.
                                       III.
                                        A.
      Huff also challenges the dismissal of his failure to protect claim under
the FTCA. We review de novo a district court’s dismissal under Rule 12(b)(1).
In re Supreme Beef Processors, Inc., 468 F.3d 248, 251 (5th Cir. 2006). Under
Rule 12(b)(1), a case is properly dismissed for lack of subject matter jurisdiction
when the court lacks the statutory or constitutional power to adjudicate the
case. Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006,
1010 (5th Cir. 1998). Courts may dismiss for lack of subject matter jurisdiction
based on: (1) the complaint alone; (2) the complaint supplemented by
undisputed facts in the record; or (3) the complaint, supplemented by
undisputed facts, plus the court’s resolution of disputed facts. Clark v. Tarrant
                                        11
   Case: 12-20762     Document: 00512512507      Page: 12   Date Filed: 01/27/2014



                                  No. 12-20762
County, 798 F.2d 736, 741 (5th Cir. 1986). When subject matter jurisdiction is
challenged, the plaintiff has the burden of demonstrating that subject matter
jurisdiction exists. Paterson v. Weinburger, 644 F.2d 521, 523 (5th Cir. 1981).
                                       B.
      As the sovereign, the United States is immune from suit, except to the
extent that it has waived its immunity and has consented to be sued. F.D.I.C.
v. Meyer, 510 U.S. 471 (1994). The FTCA acts as a limited waiver of sovereign
immunity allowing the United States to be sued for “injury or death caused by
the negligent or wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b);
see United States v. Muniz, 374 U.S. 150, 151 (1963) (confirming the right of a
federal prisoner to sue under the FTCA for injuries received during
incarceration). Courts strictly construe waivers of sovereign immunity and
resolve all ambiguities in favor of the sovereign. Lane v. Pena, 518 U.S. 187,
192 (1996).    Under the discretionary function exception, the waiver of
immunity does not apply to any 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 an employee of the Government, whether or not the
discretion involved be abused.” 28 U.S.C. § 2680(a); see Guile v. United States,
422 F.3d 221, 229 (5th Cir. 2005). Huff has the burden of proving subject
matter jurisdiction by alleging a claim that was facially outside the
discretionary function exception. See St. Tammany Parish ex rel. Davis v. Fed.
Emergency Mgmt. Agency, 556 F.3d 307, 315 (5th Cir. 2009).
      To determine whether the discretionary function exception applies, we
conduct a two-pronged inquiry. United States v. Gaubert, 499 U.S. 315, 322
(1991); In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 713 F.3d 807,
810 (5th Cir. 2013). We ask first whether the challenged act “involv[ed] an
element of judgment or choice.” Gaubert, 499 U.S. at 322 (internal quotation
                                       12
    Case: 12-20762        Document: 00512512507          Page: 13      Date Filed: 01/27/2014



                                        No. 12-20762
marks and citation omitted). If so, we ask next “whether that judgment is of
the kind that the discretionary function exception was designed to shield.” Id.
at 322−23 (internal quotation marks and citation omitted). The exception
“protects only governmental actions and decisions based on considerations of
public policy.” Id. at 323 (internal quotation marks and citation omitted).
       The district court applied the Gaubert test and concluded that the
discretionary function exception applied because the BOP exercises
“significant judgment in fulfilling its statutory obligation to provide for the
safekeeping” of inmates and that the discretionary safekeeping of inmates was
the type of action for which the FTCA was designed to shield the government
from liability. 7
       Huff complains that Lieutenant Neal’s “open investigation procedure”
portrayed him as a snitch and that Captain Fauver disregarded his health and
safety by placing two Pistoleros into his housing unit. Huff contends that the
district court erred when it applied the discretionary function exception
because, under 18 U.S.C. § 4042(a), the BOP shall “provide suitable quarters
and provide for the safekeeping, care, and subsistence” of those in its charge,
the defendants’ obligation to protect him from harm was statutory, rather than
discretionary. Citing Castro v. United States, 560 F.3d 381 (5th Cir. 2009),
vacated, Castro v. United States, 608 F.3d 266 (5th Cir. 2010) (en banc), Huff
argues that the defendants did not possess the discretion to violate his Eighth
Amendment right against cruel and unusual punishment. Huff’s reliance on
Castro is misplaced because that case has since been overturned by the en banc




       7Huff argues that the district court erred by considering the jurisdictional question
sua sponte. We disagree. The district court was obliged to undertake an analysis of the
applicability of the discretionary function exception and dismiss this action for lack of subject
matter jurisdiction under Rule 12(b)(1).

                                              13
    Case: 12-20762       Document: 00512512507         Page: 14     Date Filed: 01/27/2014



                                      No. 12-20762
court. Castro, 608 F.3d 266. Huff provides little analysis of this argument and
does not cite any case besides the overturned opinion in Castro. Though pro se
litigants’ briefs are liberally construed, pro se litigants must still brief the
issues. Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995). Therefore, Huff has
waived the issue by failing to brief it adequately. United States v. Scoggins,
599 F.3d 433, 446 (5th Cir. 2010) (“A party that asserts an argument on appeal,
but fails to adequately brief it, is deemed to have waived it.” (citations
omitted)).
       The discretionary function exception “does not apply if ‘a federal statute,
regulation, or policy specifically prescribes a course of action for an employee
to follow.’” Buchanan v. United States, 915 F.2d 969, 971 (5th Cir. 1990)
(quoting Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536 (1988)).
Although § 4042 mandates that the BOP ensure the safekeeping of inmates,
the Supreme Court has observed that a prison’s internal security is normally
left to the discretion of prison administrators. Whitley v. Albers, 475 U.S. 312,
321–22 (1986) (“Prison administrators . . . should be accorded 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.” (internal quotation marks omitted)). In addition, we
have stated that the BOP must “provide for the safekeeping, care, and
subsistence of all federal prisoners, but [§ 4042(a)] does not indicate the
manner in which the duty must be fulfilled.” Spotts v. United States, 613 F.3d
559, 567 (5th Cir. 2010). In other words, because § 4042 does not prescribe a
specific course of action, the BOP has discretion to decide how best to fulfill its
duty. 8



       8Huff argues that BOP policy provides specific courses of actions that BOP employees
must follow in order to fulfill their duty under § 4042(a), but he has not pointed to a rule,
                                             14
    Case: 12-20762       Document: 00512512507          Page: 15     Date Filed: 01/27/2014



                                       No. 12-20762
       Because the duty to maintain safekeeping of inmates is a discretionary
one, we now turn to the two-pronged inquiry for the discretionary function
exception. The placement of Pistoleros in a particular unit of the prison and
the investigation of alleged threats inside the prison “involv[ed] an element of
judgment or choice,” thereby satisfying the first prong. Gaubert, 499 U.S. at
322. Indeed, the placement of any inmates on any occasion, as well as the
investigation of any internal issue at any time, inherently requires that prison
officials exercise their discretion to make a choice regarding the proper course
of action in furtherance of safekeeping. Moreover, this is the type of conduct
that the discretionary function was designed to shield because “a prison’s
internal security is peculiarly a matter normally left to the discretion of prison
administrators.”       Buchanan, 915 F.2d at 971 (internal quotation marks
omitted).     Public policy demands that these decisions be made by prison
officials, not judges. Therefore, the BOP officials’ actions in this case fell within
the discretionary function exception. 9 Our conclusion comports with a recent
unpublished opinion in which we held that “decisions regarding the transfers
and classifications of prisoners generally fall within the discretionary function
exception.”     Patel v. United States, 398 F. App’x 22, 29 (5th Cir. 2010)
(unpublished).
       Huff raises a series of other issues that are meritless. He argues that
the district court erred when it denied his motion for leave to amend his
complaint after the defendants filed their motion to dismiss his FTCA claims.



regulation, or policy statement showing that the defendants lacked discretion in handling his
placement. The BOP has discretion within the bounds of § 4042.
       9 Regardless of whether Huff purports to rely on a negligence theory or intentional-

tort theory, the conduct underlying Huff’s FTCA claims falls within the discretionary
function exception. The exception does not depend on the inmate-plaintiff’s theory. See Patel,
398 F. App’x at 29 (citing Gaubert, 499 U.S. at 322) (applying discretionary function exception
to bar plaintiff’s claim that BOP officials acted “either negligently or deliberately” in
transferring plaintiff to facility without capacity to treat plaintiff’s medical conditions).
                                             15
    Case: 12-20762    Document: 00512512507     Page: 16   Date Filed: 01/27/2014



                                 No. 12-20762
Futility of amendment is a permissible basis for denial of a motion to amend.
Wright v. Allstate Ins. Co., 415 F.3d 384, 391 (5th Cir. 2005). Because the court
lacks subject matter jurisdiction over Huff’s FTCA claims, amendment to his
complaint would have been futile. Likewise, Huff argues that the district court
erred when it denied an opportunity for discovery on the jurisdictional issues
that were intertwined with his FTCA claims. A district court’s decision to
delay summary judgment for further discovery is reviewed for an abuse of
discretion. Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010). Huff has not
indicated how any fact he hopes to discover would show that the district court’s
determination on the jurisdiction issue was erroneous. We have stated that a
nonmovant “may not simply rely on vague assertions that additional discovery
will produce needed, but unspecified, facts.” Id. Therefore, the district court’s
denial of Huff’s motion for an evidentiary hearing was not erroneous.
      In addition, Huff argues that his due process rights were violated when
the district court denied his motion to reconsider the dismissal of his FTCA
claims and his motion to amend. “We review the district court’s denial of a
motion for reconsideration under an abuse of discretion standard.” Ramon v.
Casellas, 165 F.3d 23, *1 (5th Cir. 1998) (unpublished). Huff has not provided
grounds for relief from the judgment. The district court therefore did not abuse
its discretion.
      Finally, Huff argues that he district court abused its discretion when it
denied his motion for the appointment of counsel without an analysis of the
relevant factors. Huff had no automatic right to counsel and the district court
was required to appoint counsel only if the case presented exceptional
circumstances.    Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
Although there is no comprehensive definition of exceptional circumstances is
practical, we have stated that a number of factors should be considered in
ruling on requests for appointed counsel. These include: (1) the type and
                                       16
   Case: 12-20762     Document: 00512512507      Page: 17   Date Filed: 01/27/2014



                                  No. 12-20762
complexity of the case; (2) whether the indigent is capable of adequately
presenting his case; (3) whether the indigent is in a position to investigate
adequately the case; and (4) whether the evidence will consist in large part of
conflicting testimony so as to require skill in the presentation of evidence and
in cross-examination. Id. at 213. Huff filed thorough pleadings and responses
to the defendants’ motions that adequately addressed the complexities of the
case. Therefore, the district court did not abuse its discretion in denying Huff’s
motion for the appointment of counsel.
      We AFFIRM.




                                       17
