     Case: 09-31101 Document: 00511439655 Page: 1 Date Filed: 04/08/2011




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

                                                  FILED
                                                                             April 8, 2011

                                       No. 09-31101                         Lyle W. Cayce
                                                                                 Clerk

JOE LOUIS CHAMPION,

                                                   Plaintiff–Appellant,
v.

UNITED STATES OF AMERICA,

                                                   Defendant–Appellee.




                     Appeal from the United States District Court
                        for the Western District of Louisiana
                               USDC No. 1:08-CV-1514


Before SMITH, DeMOSS, and OWEN, Circuit Judges.
PER CURIAM:*
       Joe Louis Champion, federal prisoner #75103-079, filed a pro se tort claim
against the United States pursuant to the Federal Tort Claims Act (FTCA).1
His claims arise from injuries he purportedly sustained when prison guards
attempted to quell a disturbance in his unit. The district court dismissed some
of his claims, and granted summary judgment for the government on others. We
affirm.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
       1
           28 U.S.C. §§ 1346, 2671-2680.
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                                         I
      Champion, an inmate at the United States Penitentiary–Pollock, contends
that he was injured by prison guards attempting to respond to prison unrest.
His account of events is as follows. Champion worked as a prison orderly. Just
prior to the nightly lockdown, he was out of his cell attending to his orderly
duties when inmates in the tier above his began throwing their foot lockers down
to his tier. He and others became locked out of their cells, and the inmates were
told to line up in front of their doors so that an officer could enter the unit and
open their cells for them. After time passed, guards instead entered the unit to
restore order. At least two incendiary devices were thrown in Champion’s
direction, one of which landed close enough to him to cause burns to his legs.
      While the officers were securing the unit, Champion told them that he was
injured. They took him to see the nurse. The nurse took notes on his condition
and officers photographed his injuries. Later, he made requests to be taken back
to the nurse. He estimates that approximately thirteen hours after he had been
initially seen, a nurse came to him. The nurse cleaned the burns and provided
a painkiller. The next day he was provided a variety of medications, which he
identifies as “Neomncin/Poly B/Bacitracin [sic] 15 GM [sic] Oint[ment] and
Ibuprofen 600 [mg] [t]ab.” The government identifies his medications as an
antibiotic and an anesthetic.     Though Champion disputes the accuracy of
elements of his government medical records, he has not contested the nature of
the drugs he received.
      When he informed prison authorities that his medication was not
alleviating his pain and that his burns were beginning to peel, additional
medication was prescribed.     Champion identifies that medication as “more
Ibuprofen 600 [mg] [t]ab[s] and Silver Sulfadiazine Cream 50 GM 1% GM [sic].”
The government identifies this as an antibiotic cream. Champion asserts that
his medication was confiscated during a search of his cell on a later date. He

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was given a form to complete to have it replaced. Champion also asserts that his
sister-in-law, Julia Webb, sent him a letter telling him “how to keep my burns
clean because the nurse didn’t tell me how to clean my burns.”           However,
Champion also complained that in one of these initial consultations with the
prison nurse “all she did was instruct the Plaintiff to wash his legs with soap
and water and go to sick call.”
      Champion pursued administrative remedies, requesting that he be
“compensate[d] for his hurt, pain, and suffering.” He complained of the guards’
actions leading to his leg burns and his medical care.         He pursued these
administrative grievances to exhaustion. When filing his complaint in court, he
included a retaliation claim, arguing that prison officials retaliated against him
for filing his administrative grievances.      The district court dismissed his
wrongful injury or assault claim under the FTCA on the basis of sovereign
immunity and his medical malpractice claim for failure to state a claim. The
district court granted summary judgment in favor of the government with
respect to the plaintiff’s claim for delayed medical care.         It also denied
Champion’s motion for summary judgment. The court dismissed his retaliation
claim because he failed to exhaust his administrative remedies with respect to
that claim prior to filing suit. Champion now appeals elements of the district
court’s rulings to this court. Our jurisdiction over this appeal is properly vested
pursuant to 28 U.S.C. § 1291.
                                        II
      As an initial matter, Champion has filed with this court a motion for
appointment of counsel. That motion is denied.
                                        III
      Champion appeals the district court’s dismissal of his FTCA claim for the
burns he asserts he suffered as a result of the incendiary devices guards threw
near his person. We will interpret Champion’s pleadings liberally in light of his

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                                           No. 09-31101

pro se status.2 The district court dismissed this claim on the basis of F ED. R. C IV.
P. 12(b)(1), lack of subject-matter jurisdiction, because of sovereign immunity.
Pursuant to F ED. R. C IV. P. 59(e), after Champion filed his notice of appeal the
district court amended its order to clarify that it had relied upon the so-called
“discretionary function exception” to the FTCA.3                    Champion subsequently
corresponded with the district court regarding his planned appeal within the
time provided by F ED. R. A PP. P. 4(a), and contests this dismissal in his brief to
this court. We construe Champion as having appealed the amended judgment.4
          We review a F ED. R. C IV. P. 12(b)(1) dismissal de novo, applying the same
standards as the district court.5              As the district court did not resolve any
disputed facts, we consider the facts as alleged by the plaintiff to be true and ask
if dismissal is appropriate.6 We have recognized that “‘[t]he basic rule of federal
sovereign immunity is that the United States cannot be sued at all without the
consent of Congress’”7 and a plaintiff has “‘the burden of showing Congress’s
unequivocal waiver of sovereign immunity.’”8 The FTCA serves as a waiver of
sovereign immunity with respect to tort suits actionable under the relevant




          2
        Tex. Comptroller of Pub. Accounts v. Liuzza (In re Tex. Pig Stands, Inc.), 610 F.3d 937,
941 n.4 (5th Cir. 2010).
          3
              28 U.S.C. § 2680(a).
          4
              See Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987) (per curiam).
          5
              Freeman v. United States, 556 F.3d 326, 334 (5th Cir.), cert. denied, 130 S. Ct. 154
(2009).
          6
              Id.
          7
        Id. at 334-35 (quoting Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461
U.S. 273, 287 (1983)).
          8
        Id. at 334 (quoting St. Tammany Parish, ex rel. Davis v. Fed. Emergency Mgmt.
Agency, 556 F.3d 307, 315 (5th Cir. 2009)).

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state’s law.9 However, we “‘must strictly construe all waivers of the federal
government’s sovereign immunity, resolving all ambiguities in favor of the
sovereign.’” 10
       In the instant case the district court held that the FTCA did not waive
sovereign immunity for Champion’s tort claim. There is a statutory exception
to the FTCA’s waiver of sovereign immunity for “[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 an employee of the
Government, whether or not the discretion involved be abused.”11 The district
court held that this exception to the United States’ waiver of sovereign immunity
rendered the government immune from suit on this claim.
       In United States v. Gaubert, the Supreme Court developed a two-part test
to determine the discretionary function exception’s applicability to a claim.12
First, we consider if the act involves governmental judgment or choice.13 If it
does, we then consider whether the governmental judgment or choice is of the
type that the exception was designed to protect.14 The Court identified the
purpose of the exception as “prevent[ing] judicial ‘second-guessing’ of legislative
and administrative decisions grounded in social, economic, and political policy
through the medium of an action in tort, [and] when properly construed, the




       9
            Id. at 335.
       10
        Chapa v. U.S. Dep’t of Justice, 339 F.3d 388, 390 (5th Cir. 2003) (per curiam) (quoting
Linkous v. United States, 142 F.3d 271, 275 (5th Cir. 1998)) (brackets omitted).
       11
            28 U.S.C. § 2680(a).
       12
            499 U.S. 315, 322-23 (1991).
       13
            Id. at 322.
       14
            Id. at 322-23.

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exception protects only governmental actions and decisions based on
considerations of public policy.” 15
          Here the Gaubert test is satisfied. Taking Champion’s factual account to
be true, inmates were throwing lockers from the upper tier. Guards sought to
quell the unrest. As a result, the guards determined the most effective way to
restore order to the prison unit. As we have previously stated, “‘[a] prison’s
internal security is peculiarly a matter normally left to the discretion of prison
administrators.’”16 Moreover, we have recognized that discretionary responses
to such prison unrest are the type of decisions the exception is designed to
protect, as permitting such suits “would place an even greater burden on prison
officials during dangerous uprisings and . . . would increase the complexity of
what is already ‘an extraordinarily difficult undertaking.’” 17
          Construing Champion’s pro se brief liberally, he appears to argue,
alternatively, that the prison’s regulations on inmate unrest granted him a due
process liberty interest. He argues that this liberty interest was violated, and
that this violation precludes the application of sovereign immunity. His claim
fails. Champion has filed a suit against the United States seeking monetary
damages. Our recent en banc decision in Castro v. United States held that the
discretionary function exception applied to preclude an FTCA suit18 and that we
“agree[d] with the district court’s explanation that the constitutional claims are
moot.”19 The district court in Castro had held the constitutional claims moot


          15
               Id. at 323 (internal citations and quotation marks omitted).
          16
       Buchanan v. United States, 915 F.2d 969, 971 (5th Cir. 1990) (quoting Rhodes v.
Chapman, 452 U.S. 337, 349 n.14 (1981)).
          17
               Id. at 972 (quoting Hewitt v. Helms, 459 U.S. 460, 467 (1983)).
          18
               608 F.3d 266, 268 (5th Cir. 2010) (en banc) (per curiam), cert. denied, 131 S. Ct. 902
(2011).
          19
               Id.

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because the ends sought by the injunctive relief requested had been achieved
and that court had “already ruled that Plaintiffs cannot seek monetary damages
for their constitutional claims, as such claims for monetary relief are barred by
the doctrine of sovereign immunity.” 20
       We also note that Champion has not asserted a cognizable liberty interest.
He argues that the applicable prison regulations were not precisely followed in
responding to the unrest. For instance, he argues that the “most not[e] worthy
[sic]” regulation is that which directs that “Staff ordinarily shall first attempt to
gain the inmate’s voluntary cooperation before using force.” Of course, that
which is to be done “ordinarily” is, by the very terms of the regulation, not
universally required. Moreover, Champion must demonstrate more than a mere
violation of a prison regulation, since “a violation of prison regulations in itself
is not a constitutional violation.”21 We have previously observed the importance
of the Supreme Court’s decision in Sandin v. Conner22 in this sphere. We have
held that “prisoners may no longer peruse state statutes and prison regulations
searching for the grail of limited discretion.”23 Subsequently, the Supreme Court
has reaffirmed “that the touchstone of the inquiry into the existence of a
protected, state-created liberty interest in avoiding restrictive conditions of
confinement is not the language of regulations regarding those conditions but
the nature of those conditions themselves ‘in relation to the ordinary incidents
of prison life.’”24 More recently, we have cautioned again that “[m]andatory



       20
            Castro v. United States, No. C-06-61, 2007 WL 471095, at *9 (S.D. Tex. Feb. 9, 2007).
       21
            Edwards v. Johnson, 209 F.3d 772, 779 (5th Cir. 2000).
       22
            515 U.S. 472 (1995).
       23
            Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995) (per curiam) (citing Sandin, 515 U.S.
at 484).
       24
            Wilkinson v. Austin, 545 U.S. 209, 223 (2005) (quoting Sandin, 515 U.S. at 484).

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language does not necessarily create a protected liberty interest.”25                     Here,
Champion has failed to identify a constitutional liberty interest violated by the
guards’ conduct.
       Champion also argues on appeal that the attempt to quell the prison
unrest amounted to cruel and unusual punishment prohibited by the Eighth
Amendment to the United States Constitution.                     He did not advance this
argument in the proceedings below. Arguments not made to the district court
are waived.26
                                               IV
       Champion challenges the district court’s dismissal of his claim for medical
malpractice with respect to the prison nurse’s actions. That claim was dismissed
pursuant to F ED. R. C IV. P. 12(b)(6) for failure to state a claim. We review this
ruling de novo, and “construe the complaint in the light most favorable to the
plaintiff and draw all reasonable inferences in the plaintiff’s favor.” 27 Though
“pro se complaints are held to less stringent standards than formal pleadings
drafted by lawyers,” we have recognized that such complaints must “plead
enough facts to state a claim to relief that is plausible on its face” 28 in light of the
Supreme Court’s decision in Ashcroft v. Iqbal.29 “[D]ocuments attached to or




       25
            Richardson v. Joslin, 501 F.3d 415, 419 n.3 (5th Cir. 2007) (citing Sandin, 515 U.S.
at 483).
       26
            Kirschbaum v. Reliant Energy, Inc., 526 F.3d 243, 257 n.15 (5th Cir. 2008).
       27
         Elsensohn v. St. Tammany Parish Sheriff’s Office, 530 F.3d 368, 371-72 (5th Cir.
2008) (per curiam).
       28
        Bustos v. Martini Club Inc., 599 F.3d 458, 461-62 (5th Cir. 2010) (internal citations
and quotation marks omitted).
       29
            —U.S.—, 129 S. Ct. 1937, 1949 (2009).

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incorporated in the complaint and matters of which judicial notice may be taken”
may be considered in this inquiry.30
         Liability under the FTCA exists when a claim sounds under existing state
law.31         Louisiana subjects nurses to the same malpractice liability as
physicians.32          In such an action, a plaintiff must prove (1) the degree of
knowledge or skill or the degree of care ordinarily exercised by such medical
professionals in a similar community and under similar circumstances; (2) that
the defendant either lacked this knowledge or skill or failed to use reasonable
care and diligence, along with his best judgment; and (3) that the proximate
result thereof was injuries to the plaintiff that would not have otherwise been
incurred.33
         Here, even holding Champion to a less stringent pleading standard, he has
failed to plead facts sufficient to state a plausible claim for relief. The facts, as
pled by Champion, indicate that he met with a nurse multiple times, including
immediately after he sustained his injuries when his injuries were documented.
He was given multiple medications: antibiotics—which treat the underlying
threat of infection—and anesthetics—which serve a palliative function. When
the medical staff learned he believed his condition was not improving, he was
provided additional medication. He has pled no facts indicating that these
actions did not conform to the relevant standard of care. The closest Champion
comes to pleading such facts is his invocation of his sister-in-law’s letter
regarding the manner in which she recommended cleaning his burns.



         30
          United States ex rel. Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 375, 379
(5th Cir. 2003).
         31
              28 U.S.C. § 1346(b).
         32
              Pommier v. ABC Ins. Co., 97-1342 (La. App. 3 Cir. 7/15/98); 715 So. 2d 1270, 1277.
         33
              LA . REV . STAT . ANN . § 9:2794(A).

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Champion, however, has pled no facts to suggest that his sister-in-law possesses
any medical expertise. Moreover, elsewhere Champion admits that the nurse
directed him to wash his burns with soap and water. Alternatively, Champion
has also failed to plead any facts indicating that his medical treatment
proximately caused him injuries he would not have otherwise incurred. As
Louisiana requires all three statutory elements to be present to grant relief,34
the district court properly dismissed his claim.
                                                    V
          The district court granted summary judgment in favor of the government
on Champion’s claims asserting his medical care was impermissibly delayed.
We review a grant of summary judgment de novo, applying the same standards
as the district court.35 “The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” 36
          Liberally construing his medical claims, Champion asserted that he has
a constitutional liberty interest in a timely medical exam and a report thereof.
Under Champion’s recitation of the facts of the case, he was seen twice by a
nurse within twenty-four hours of his injury, he received medication for his
injuries, and received additional medication when he informed officials that he
believed his condition required further medical attention. Moreover, assuming
arguendo, that such applicable regulations exist and were violated, they would
not give rise to a constitutional liberty interest.                   The Supreme Court has
reaffirmed that “that the touchstone of the inquiry into the existence of a



          34
               Id.
          35
               DePree v. Saunders, 588 F.3d 282, 286 (5th Cir. 2009), cert. dismissed, 130 S. Ct. 3450
(2010).
          36
               FED . R. CIV . P. 56(a).

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protected, state-created liberty interest in avoiding restrictive conditions of
confinement is not the language of regulations regarding those conditions but
the nature of those conditions themselves ‘in relation to the ordinary incidents
of prison life.’”37 For the reasons noted above,38 Champion’s claims fail.
      Champion has also asserted that the delay in his medical care constituted
deliberate indifference to his serious medical needs, and thus violated the Eighth
Amendment to the United States Constitution. We have held that “[a] prison
official acts with deliberate indifference ‘only if he knows that inmates face a
substantial risk of serious harm and disregards that risk by failing to take
reasonable measures to abate it.’”39 Here there is no indication that anyone at
the prison was aware of such a substantial risk of serious harm to Champion.
Further, by Champion’s own factual account he received prompt and repeated
medical attention. In short, his arguments are unavailing.
                                                  VI
      The district court also dismissed Champion’s retaliation claim because he
failed to exhaust his administrative remedies with respect to that claim. On
appeal      Champion       has   offered     no       argument   regarding   exhaustion   of
administrative remedies, and instead has briefed the merits of his retaliation
claim. As we have previously held, a pro se appellant abandons an argument
that he does not include in the body of his brief.40 Thus Champion has waived
his appeal with respect to this issue.
                                       *          *       *


      37
         Wilkinson v. Austin, 545 U.S. 209, 223 (2005) (quoting Sandin v. Conner, 515 U.S.
472, 484 (1995)).
      38
           See supra at III.
      39
        Hernandez v. Velasquez, 522 F.3d 556, 561 (5th Cir. 2008) (per curiam) (quoting
Farmer v. Brennan, 511 U.S. 825, 847 (1994)).
      40
           Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

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 We AFFIRM.




                                12
