                                                 [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                           FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                       AUG 28, 2006
                               No. 05-16607          THOMAS K. KAHN
                         Non-Argument Calendar           CLERK
                       ________________________
                D. C. Docket Nos. 04-00122-CV-OC-10-GRJ
                             04-00134-CV-OC

JOHN T. LAMBERT,

                                                      Plaintiff-Appellant,

                                 versus

UNITED STATES OF AMERICA,
FEDERAL BUREAU OF PRISONS,
LISA SUNDERMAN, Regional Counsel,
The Federal Bureau of Prisons,
individually and in her official capacity,
GARY CIMOCK, CARMEN SMALL,
M. CINTRON, M. SHAMIN, JAIME CACHO,
JANE DOES, individually and
in their official capacity,
JOHN I-X DOES, individually and
in their official capacity,


                                                   Defendants-Appellees,

CHARLES SANSUM,
B. NGUYEN,

                                                             Defendants.
                               ________________________

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

                                     (August 28, 2006)

Before DUBINA, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:

                                               I.

      John Lambert, a federal prisoner proceeding pro se, filed two complaints

against the United States, the Federal Bureau of Prisons (“BOP”), and federal

employees based on the same set of facts, and these complaints were consolidated

upon Lambert’s motion. Lambert’s first complaint alleged violations of the

Federal Tort Claims Act (“FTCA”) against, inter alia, the United States and the

BOP. Lambert’s second complaint alleged constitutional violations under Bivens1

against Federal Correctional Institute – Coleman (“Coleman”) employees Gary

Cimock, Carmen Small, M. Citron, M. Shamim, and Mr. Cacho.

      The complaints alleged the following facts: Lambert was incarcerated in

Coleman beginning in 1998 with a classification of medium security. Pursuant to

BOP policies, Lambert was supposed to receive a mandatory classification review



      1
          Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

                                               2
in August 2001. Prison officials failed to conduct the review, however, and as a

result, Lambert remained in medium security, where he was assaulted (for a second

time) in September 2001. The attack resulted in injuries to his nose, lip, and eye.

Thereafter, he was treated at an outside facility and later released to Coleman,

where he was placed in solitary confinement and denied follow-up medical care

with a specialist as prescribed by the treating physicians. The denial led to further

eye injuries. Lambert alleged that he would have been transferred to a low or

minimum security facility and thus would have avoided the September 2001

assault if the prison officials had conducted the required review.

      As part of the FTCA claim, Lambert submitted copies of the claim for injury

he filed with the BOP and the BOP’s responses. In these documents, Lambert

alleged violations for the failure to conduct the classification review and to provide

medical treatment. The BOP had determined that there was not an FTCA

violation.

      The defendants moved to dismiss, or in the alternative, for summary

judgment. As for the FTCA claims, the defendants argued that this court had

foreclosed a claim for negligent classification under the FTCA because

classification was a discretionary function. Addressing the claim for medical

negligence, the defendants asserted that the claim failed because Lambert did not



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submit expert testimony or show causation as required by Florida law. The

defendants contended that Lambert could not pursue the Bivens claims because he

failed to exhaust his administrative remedies as required under the Prison

Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e, but that in any event, there

was no liberty interest in classification or confinement at a specific institution.

Addressing the medical claim, the defendants asserted that Lambert lacked any

evidence that the eye infection was related to the assault. Moreover, the defendants

argued, they did not act with deliberate indifference to medical care because they

were not grossly negligent and the dispute between Lambert and the defendants

amounted to a difference in opinion.

      Lambert challenged the defendants’ factual assertions and argued that the

discretionary function exception did not bar his FTCA claim. He further disputed

that he had to provide testimony from a medical expert to support his claim for

medical negligence. Addressing the Bivens claims, Lambert argued that he

exhausted his administrative remedies by filing the FTCA forms with the BOP

because the two claims were based on the same facts and the cases had been

consolidated. He asserted that it would have been redundant and inefficient to

require him to raise the same claims in the administrative grievance process.

Finally, he argued that his deliberate indifference claim involved more than a



                                            4
disagreement with medical staff as the medical staff ignored orders that he be seen

by a specialist. Attached to the response were copies of administrative grievances

and responses related to Lambert’s classification claim.

      Lambert then filed his own motion for summary judgment and submitted his

affidavit, in which he reiterated his allegations. In response, the defendants

adopted their earlier arguments.

      The district court granted the defendants’ motion to dismiss and for

summary judgment. First, with regard to the FTCA claims, the court found that it

lacked subject matter jurisdiction over the negligent classification claim, as that

claim was foreclosed by Cohen v. United States, 151 F.3d 1338 (11th Cir. 1998).

The court further found that the medical negligence claim failed because Lambert

had not submitted any medical testimony or expert testimony to support his claims

and there was no evidence of causation. Addressing the constitutional claims

brought pursuant to Bivens, the court found that Lambert had not exhausted his

administrative remedies, and the exhaustion procedures under the FTCA and the

PLRA were separate and distinct. The court noted that Lambert would now be

procedurally barred from exhausting his remedies as the time to file a grievance

had run. Accordingly, the court dismissed the complaint.

                                          II.



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      This court reviews de novo a district court’s dismissal for failure to state a

claim under Federal Rule of Civil Procedure 12(b)(6). Behrens v. Regier, 422 F.3d

1255, 1259 (11th Cir. 2005). “When considering a motion to dismiss, all facts set

forth in the plaintiff’s complaint are to be accepted as true and the court limits its

consideration to the pleadings and exhibits attached thereto.” Thaeter v. Palm

Beach County Sheriff’s Office, 449 F.3d 1342, 1352 (11th Cir. 2006) (internal

quotation marks and citation omitted). A complaint may not be dismissed under

Rule 12(b)(6) “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.” Id. (internal

quotation marks and citation omitted). Unsupported conclusions of law or of

mixed law and fact are not sufficient to withstand a dismissal under Rule 12(b)(6).

Marsh v. Butler County, Ala., 268 F.3d 1014, 1036 n.16 (11th Cir. 2001) (en banc).

      “We review the district court’s grant of summary judgment de novo,

applying the same legal standards that bound the district court, and viewing all

facts and reasonable inferences in the light most favorable to the nonmoving

party.” Cruz v. Publix Super Mkts., Inc., 428 F.3d 1379, 1382 (11th Cir. 2005)

(internal quotation marks and citation omitted). Summary judgment is appropriate

when “there is no genuine issue as to any material fact and . . . the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).



                                            6
                                         III.

      A.     FTCA claims

      “The FTCA was designed to provide redress for ordinary torts recognized by

state law.” Ochran v. United States, 273 F.3d 1315, 1317 (11th Cir. 2001)

(internal quotation marks and citation omitted). In analyzing an FTCA claim, this

court applies the law of the state where the alleged tort occurred. Stone v. United

States, 373 F.3d 1129, 1130 (11th Cir. 2004). “To state a claim for negligence

under Florida law, a plaintiff must allege that the defendant owed the plaintiff a

duty of care, that the defendant breached that duty, and that the breach caused the

plaintiff to suffer damages.” Lewis v. City of St. Petersburg, 260 F.3d 1260, 1262

(11th Cir. 2001).

      1.     Negligent Classification

      Lambert first argues that the district court erred when it determined that his

FTCA classification claim was barred by the discretionary function exception

because the BOP had an obligation to conduct his custody classification review in

August 2001 and it failed to do so. The FTCA “waives the United States

government’s sovereign immunity from suit in federal courts for the negligent

actions of its employees.” Cohen, 151 F.3d at 1340. There is an exception,

however, for actions taken as part of the officer’s discretionary functions. The



                                          7
discretionary function exception precludes government liability 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.” 28 U.S.C.

§ 2680(a).

      Whether the United States is entitled to application of the discretionary

function exception to the FTCA is a question of law subject to de novo review.

Cohen, 151 F.3d at 1340. If the discretionary function exception applies, the

FTCA claim must be dismissed for lack of subject matter jurisdiction. Id.

      In Cohen, this court rejected a claim almost identical to the one Lambert

makes, holding that even if the BOP has a duty of care to safeguard prisoners, it

“retains sufficient discretion in the means it may use to fulfill that duty to trigger

the discretionary function exception.” Id. at 1341, 1344. Additionally, this court

noted that, under statute, the BOP had discretion in the manner in which it

classified prisoners. Id. at 1343.

      Moreover, although this court recognized that the BOP’s failure to follow its

own procedures renders the discretionary function exception inapplicable, id. at

1344-45, in this case Lambert offers nothing more than his own statements to show

that the defendants failed to conduct a review of his custody classification or even



                                            8
that such a review was required at that time. The district court, therefore, correctly

determined that the discretionary function exception applied and that it lacked

subject matter jurisdiction over Lambert’s classification claim.

      2.     Medical Negligence

      Lambert argues that the district court erred in determining that he had to

present expert medical testimony prior to trial in response to the government’s

motion. In Florida, in order to prove medical malpractice, “the claimant shall have

the burden of proving by the greater weight of the evidence that the alleged actions

of the health care provider represented a breach of the prevailing professional

standard of care for that health care provider.” Fla. Stat. Ann. § 766.102(1).

Generally, the standard of care in medical malpractice cases is determined through

expert testimony. Pate v. Threlkel, 661 So. 2d 278, 281 (Fla. 1995); Torres v.

Sullivan, 903 So. 2d 1064, 1068 (Fla. Dist. Ct. App. 2005). Therefore, Lambert

could not rely on his own conclusory allegations to survive summary judgment,

and it is undisputed that he did not submit any medical evidence to support his

claim. Accordingly, the district court properly dismissed this claim.

      B.     Bivens Claims

      Finally, Lambert argues that the district court erred when it determined that

he did not properly exhaust his Bivens claims. This court reviews de novo a



                                           9
district court’s interpretation and application of 42 U.S.C. § 1997e(a)’s exhaustion

requirement. Johnson v. Meadows, 418 F.3d 1152, 1155 (11th Cir. 2005), cert.

denied, 126 S. Ct. 2978 (2006).

      Under § 1997e(a), “[n]o action shall be brought with respect to prison

conditions under section 1983 of this title, or any other Federal law, by a prisoner

confined in any jail, prison, or other correctional facility until such administrative

remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This 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,” and mandates strict exhaustion, “irrespective of the

forms of relief sought and offered through administrative avenues.” Johnson, 418

F.3d at 1155 (internal quotation marks and citations omitted); see also Alexander v.

Hawk, 159 F.3d 1321, 1325-28 (11th Cir. 1998) (holding that prisoner asserting

Bivens claim must exhaust available administrative remedies, even when those

remedies are futile or inadequate). Moreover, exhaustion means proper

exhaustion, i.e., under the terms of and according to the time set by BOP

regulations. See Woodford v. Ngo, 126 S. Ct. 2378, 2387-88 (2006).

      Although Lambert contends that his notification under the FTCA was

sufficient to exhaust his Bivens claims, there are separate procedures for exhausting



                                           10
tort claims and claims involving the conditions of confinement. Compare 28

C.F.R. § 542.10 et seq., with 28 C.F.R. § 543.30 et seq. Lambert concedes that he

failed to file any grievances on his constitutional claims, and exhaustion under the

PLRA required Lambert to file grievances through the BOP’s administrative

remedies procedure. Cf. Alexander, 159 F.3d at 1325 (explaining that the

congressional mandate of exhaustion in the PLRA divested the courts of discretion

to waive the exhaustion requirement). Therefore, because Lambert failed to

exhaust under the PLRA, the district court properly dismissed Lambert’s Bivens

claims.

      Accordingly, we AFFIRM the district court’s dismissal of this action.

AFFIRMED.




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