                                                                           FILED
                             NOT FOR PUBLICATION                            JUN 26 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



ROBERT MERZ,                                     No. 11-56656

               Plaintiff - Appellant,            D.C. No. 5:11-cv-00019-PA-DTB

  v.
                                                 MEMORANDUM *
UNITED STATES OF AMERICA,

               Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                     Percy Anderson, District Judge, Presiding

                              Submitted June 18, 2013 **

Before:        TALLMAN, M. SMITH, and HURWITZ, Circuit Judges.

       Federal prisoner Robert Merz appeals pro se from the district court’s

judgment dismissing his Federal Tort Claims Act (“FTCA”) action alleging gross

negligence, medical negligence, wanton pain and suffering, and sexual harassment,

stemming from an alleged assault on him by his cellmate and the care and

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
treatment he received following the assault. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo dismissal for lack of subject matter jurisdiction and

for failure to state a claim upon which relief can be granted. Rivera v. United

States, 924 F.2d 948, 950 (9th Cir. 1991). We affirm.

      The district court properly dismissed for lack of subject matter jurisdiction

Merz’s claims based on the decision to place Merz in a cell with another inmate

who subsequently attacked him, the manner and timing of the provision of his

clothing, bedding, and toiletries, and the way he was transported back from a

regional medical center, because the United States is immune from liability under

the “discretionary function” exception to the FTCA. 28 U.S.C. § 2680(a); Alfrey v.

United States, 276 F.3d 557, 565 (9th Cir. 2002) (a prison official’s judgment

concerning what steps to take in response to a threat involves the kind of discretion

protected by the discretionary function exception); see also Bailey v. United States,

623 F.3d 855, 863 (9th Cir. 2010) (if a decision involves even two competing

interests, it is “susceptible” to policy analysis and is thus protected by the

discretionary function exception).

      The district court properly dismissed Merz’s remaining claims because Merz

did not allege physical injury with respect to these claims, and Merz may not

receive compensatory damages in tort for exclusively mental or emotional injuries.


                                            2                                    11-56656
See 28 U.S.C. § 1346(b)(2); 42 U.S.C. § 1997e(e).

      The district court did not abuse its discretion by dismissing without leave to

amend because amendment would have been futile. See McQuillion v.

Schwarzenegger, 369 F.3d 1091, 1099 (9th Cir. 2004) (dismissal without leave to

amend is not an abuse of discretion if amendment would be futile); see also Ivey v.

Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982) (liberal

interpretation of a pro se complaint may not supply essential elements of a claim

that were not pled).

      Merz’s allegations of judicial bias are unsupported by the record.

      AFFIRMED.




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