                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-7204


JOSHUA RICH,

                Plaintiff - Appellant,

           v.

UNITED STATES OF AMERICA,

                Defendant - Appellee.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg.     Gina M. Groh,
District Judge. (3:13-cv-00137-GMG-RWT)


Argued:   October 27, 2015                Decided:   December 29, 2015


Before KEENAN, WYNN, and DIAZ, Circuit Judges.


Affirmed in part, vacated in part, and remanded by published
opinion.   Judge Keenan wrote the opinion, in which Judge Wynn
and Judge Diaz joined.


ARGUED: Jay Thornton McCamic, MCCAMIC, SACCO & MCCOID, PLLC,
Wheeling, West Virginia, for Appellant.   Alan McGonigal, OFFICE
OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for
Appellee. ON BRIEF: William J. Ihlenfeld, II, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling,
West Virginia, for Appellee.
BARBARA MILANO KEENAN, Circuit Judge:

       While serving a fifty-seven year sentence at the United

States    Penitentiary       in     Bruceton            Mills,      West     Virginia      (USP

Hazelton), Joshua Rich was attacked in a recreation area, or

“cage,” by several other inmates.                        He was severely beaten and

stabbed    several     times.          A    nine-inch-long          homemade       knife   was

recovered      at   the    scene.            Rich       suffered      serious      injuries,

including      liver    laceration,          which       required     numerous      invasive

surgeries.

       Rich sued the United States under the Federal Tort Claims

Act (FTCA), 28 U.S.C. § 1346(b), alleging that prison officials

had been negligent in failing to protect him from the attack.

The district court granted the government’s motion to dismiss

for lack of subject matter jurisdiction, concluding that the

discretionary function exception to the FTCA applied both to the

prison    officials’       decision         not        to     separate      Rich   from    his

attackers,     as   well    as    to       the       manner    in   which    the   officials

searched other inmates prior to placing them with Rich in the

recreation cage.

       Upon our review, we affirm the district court’s holding

that     the   prison      officials’            discretionary        decision       not    to

separate Rich from his attackers is subject to the discretionary

function exception of the FTCA, depriving us of jurisdiction

over that claim.           However, with regard to Rich’s claim that

                                                 2
prison      officials   did    not     perform      the    searches     properly,    we

remand for additional discovery because jurisdictional facts are

intertwined with the merits of that claim.



                                            I.

      In 2008, the United States District Court for the District

of Utah sentenced Rich to fifty-seven years’ imprisonment for

armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d),

and for using and carrying a firearm in relation to a crime of

violence, in violation of 18 U.S.C. § 924(c).                      Rich entered the

custody of the Bureau of Prisons (BOP) in September 2008. 1

      According to Rich, he immediately was targeted in prison by

a   white    supremacist      group,    the      “Aryan    Brotherhood,”      for   his

refusal to follow that group’s rules and to participate in the

group’s criminal schemes.              Although transferred frequently to

different     penitentiaries,        Rich       contends    that   he   was   targeted

continually     by   the   Aryan     Brotherhood          and   required   separation

from the group. 2


      1Unless otherwise indicated, the facts in Section I are
undisputed.

      2The government disputes Rich’s account of his time at the
various penitentiaries and the reasons for his separation from
other inmates, arguing that Rich’s prior Special Housing Unit
placements were unrelated to the Aryan Brotherhood.       As we
explain in Section II.B., this dispute of fact is immaterial to
our conclusions.


                                            3
        In February 2011, Rich was transferred to USP Hazelton and,

on August 5, 2011, five inmates attacked him in a recreation

cage within the Special Housing Unit (SHU).                     The attackers beat

Rich and stabbed him repeatedly.                   A knife measuring about nine

inches in length was recovered from the scene. 3                       Rich suffered

serious injuries and underwent numerous surgeries, including a

bronchoscopy for respiratory failure, a laparotomy to repair a

laceration to his liver, and open-heart surgery to repair the

right atrium of his heart.

       Rich sued the United States under the FTCA, alleging one

count       of     negligence    asserting     that   the    prison    officials       had

failed        to    protect     him   from    harm.     Rich    alleged       that     the

officials should have kept him separated from his attackers, and

that        the    officials    failed   to   screen,    “wand,”      or    search     the

inmates properly prior to placing them in the recreation cage.

       The government moved to dismiss Rich’s complaint on the

basis that the discretionary function exception to the FTCA,

which limits the government’s waiver of sovereign immunity for

certain       kinds     of    discretionary       conduct,   applied       both   to   the


        3
       The government does not dispute the size of the knife
recovered from the scene of the attack, though its exact size is
nowhere in the record.    Although the government refers to the
investigative report for Rich’s attack as in the record on page
169 of the joint appendix, we are unable to locate page 169.
Nor is the investigative report included in any other part of
the record.


                                              4
prison officials’ decision whether to separate Rich from his

attackers      and   to   the    manner    in       which    the    prison    officials

searched the attacking inmates.                 To support its position, the

government included several exhibits with its motion to dismiss.

These attachments included portions of Rich’s prison file and

declarations from the prison officials, who stated that they

performed patdowns and searches properly on all inmates before

the attack.        The attachments also included various “Post Orders”

in effect at USP Hazelton on August 5, 2011. 4

       The    Post   Orders     relating       to    the     SHU    require   that    an

inmate’s hands be restrained behind his body whenever leaving

his cell for recreation.            Additionally, the Post Orders state

that “inmates will be pat searched and screened with the hand-

held       metal   detector     before    entering          and    upon   exiting    the

recreation cages.”            The Post Orders do not otherwise describe

how a patdown should be performed.                    However, the BOP “Program

Statement” applicable to all prisons, including USP Hazelton,

provides that “[a]ny pat search shall be conducted as outlined




       4
       “Post Orders” are specific to each institution, based on
BOP policy, and state each post’s duty hours as well as any
special instructions unique to that post. See U.S. Dep’t of
Justice Program Statement No. 5500.14, section 103 (2012),
http://www.bop.gov/policy/progstat/5500_014.pdf (describing post
orders).


                                           5
in the Correctional Services Manual.” 5                     Moreover, according to

the Post Orders, when an inmate has a prior history of weapons

possession, prison officials must perform a “visual search” of

the inmate, including a search of the inmate’s body cavities,

prior to his entry into a recreation cage.

        After      reviewing     these      attachments,       the     district    court

agreed      with     the     government      that    the    discretionary       function

exception applied to the prison officials’ decisions regarding

inmate separation and the manner in which the prison officials

performed the patdowns and searches. 6                     The court found that the

Post Orders “do not mandate a specific course of conduct” for

the officers to follow in performing the required searches.                           The

court       also     concluded       that    the     discretion      afforded     prison

officials       is    consistent      with    the     public   policy     of    granting

prison officials deference in implementing and executing their

security measures.

     The      district       court    further      concluded    that    Rich    was   not

entitled        to     any     discovery          regarding    whether      additional

directives mandated a particular method for performing patdowns

        5
       The Correctional Services Manual is not a part of the
record before this Court.

        6
       The district court noted that Rich only objected to the
report and recommendation of the magistrate judge with respect
to whether the prison officials performed their searches
properly.   Accordingly, the court simply adopted the magistrate
judge’s conclusion regarding separation.


                                              6
and   searches.      Accordingly,    the    district    court   granted   the

government’s      motion   to   dismiss    for   lack   of   subject   matter

jurisdiction.     This appeal followed.



                                     II.

      On appeal, Rich challenges the district court’s conclusion

that the discretionary function exception applies to the prison

officials’ conduct.        He argues that the officials had a non-

discretionary duty to maintain and monitor both his prison files

and the files of other inmates.              Rich contends that if the

officials had taken these security measures, they would have

known about Rich’s history with the Aryan Brotherhood and the

need to keep him separated from the group’s members.              Rich also

argues that the Post Orders and other policies imposed mandatory

directives that the prison officials search and patdown inmates

prior to placing them in the recreation cage, thereby precluding

application     of   the   discretionary     function    exception.       Rich

contends that, at a minimum, he should have been allowed the

opportunity for discovery before the district court determined

that the discretionary function exception applied.

      In response, the government contends that the officials’

decision not to separate Rich from his attackers, as well as the

manner in which the searches were performed, are matters within

the discretionary function exception.             The government asserts

                                      7
that    there       are    no   directives       governing       the    separation      of

prisoners or the proper procedure for performing patdowns and

searches.       The government argues that, therefore, the prison

officials’ discretion in these areas implicates public policy

considerations         that     justify    application      of    the    discretionary

function exception.              The government further asserts that the

district court did not abuse its discretion when it refused to

grant Rich discovery, because no additional information could be

uncovered           that    would        establish     the        district        court’s

jurisdiction.

                                            A.

       We review a district court’s decision dismissing a case for

lack of subject matter jurisdiction de novo.                      Taylor v. Kellogg

Brown & Root Servs., Inc., 658 F.3d 402, 408 (4th Cir. 2011).

We   review     a    denial     of   jurisdictional       discovery      for    abuse   of

discretion.          Durden v. United States, 736 F.3d 296, 307 (4th

Cir. 2013).

       Although the United States typically is immune from suit,

the FTCA provides a waiver of this sovereign immunity when the

federal     government          “would     be    liable    to     the        claimant   in

accordance with the law of the place where the act or omission

occurred” for certain torts, such as negligence, committed by

federal employees acting within the scope of their employment.

28     U.S.C.       § 1346(b)(1).           However,      under        the    FTCA,     the

                                             8
discretionary function exception limits that waiver of immunity

in    situations     involving    “the    exercise      or    performance         or   the

failure to exercise or perform a discretionary function or duty

. . . whether or not the discretion involved be abused.”                               28

U.S.C. § 2680(a).

       To     determine        whether       conduct      qualifies          for       the

discretionary        function    exception,     courts       apply    a    two-pronged

test.        First,      a   court     considers       whether       the     challenged

governmental conduct involves an element of judgment or choice.

United States v. Gaubert, 499 U.S. 315, 322 (1991).                               When a

statute, regulation, or policy prescribes a specific course of

action, there is no discretion and the exception does not apply.

Id.     Second, if the challenged conduct does involve an element

of judgment, the court must then determine whether the judgment

was one that the exception was designed to protect, namely, a

judgment based on considerations of public policy.                         Id. at 322-

23.

       A    defendant’s      assertion   that    the    discretionary          function

exception applies is an assertion that the court lacks subject

matter jurisdiction.            See Indem. Ins. Co. of N. Am. v. United

States,     569   F.3d    175,   180   (4th    Cir.    2009).        In    challenging

subject     matter    jurisdiction,      a    defendant      may     raise    a    facial

challenge that, even if all the alleged facts are true, the



                                          9
complaint       nonetheless        fails    to   establish    jurisdiction.            See

Durden, 736 F.3d at 300.

     Alternatively, a defendant may dispute the allegations in a

complaint       that    could      establish     subject     matter     jurisdiction.

Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009).                              In

that situation, the court may go beyond the allegations in the

complaint and “in an evidentiary hearing determine if there are

facts to support the jurisdictional allegations.”                          Id.        Under

such circumstances, the complaint’s allegations ordinarily are

not afforded a presumption of truthfulness.                       Id.     If, however,

the jurisdictional facts are intertwined with the facts central

to the merits of the complaint, “a presumption of truthfulness

should       attach    to    the   plaintiff’s     allegations.”          Id.    at    193.

And, most relevant here, the court “should resolve the relevant

factual disputes only after appropriate discovery.”                        In re KBR,

Inc.,    Burn     Pit       Litig.,   744   F.3d    326,    334    (4th    Cir.       2014)

(citation omitted).

                                            B.

        We    first     address       whether      the     discretionary        function

exception applies to the prison officials’ placement of Rich in

the recreation cage with his attackers, and whether Rich was

entitled to discovery on this claim.                       To do so, we consider

whether the challenged governmental conduct involves an element

of judgment or choice and, if so, whether that judgment was

                                            10
based on considerations of public policy.                          Gaubert, 499 U.S. at

322–23.

       The       BOP    is      required    to    provide     for     the    “protection,”

“safekeeping,”            and     “care”    of    “all     persons       charged    with       or

convicted of offenses against the United States.”                               18 U.S.C. §

4042(a)(2), (3).              Under the statute’s broad directives, the BOP

retains          discretion        regarding       the     implementation          of        those

mandates.             Cohen v. United States, 151 F.3d 1338, 1342 (11th

Cir.    1998).            This    discretion      is     evident    in    the   regulations

regarding the proper handling and review of the Central Inmate

Monitoring (CIM) files.

       The CIM system is the mechanism by which the Bureau of

Prisons monitors and controls the transfer, temporary release,

and community activities of certain inmates who present special

needs for management, including the need to separate certain

inmates from others based on their past behavior.                            See 28 C.F.R.

§   524.70–76.             Although    28    C.F.R.       § 524.72(d)       provides         that

inmates “may require separation from a specific disruptive group

[such    as       a    prison     gang]”    (emphasis       added),      nothing    in       this

regulation requires that any specific action be taken by the

various          prison      officials.          Instead,     prison       officials          must

consider several factors and exercise independent judgment in

determining           whether     inmates    may       require     separation.          See     28

C.F.R.       §     524.72(f).         Given       this     general       language       in    the

                                                 11
regulations, we conclude that prison officials exercise broad

discretion in this regard and, thus, that the first prong of the

discretionary function exception is satisfied.

      We turn to consider the second element of the discretionary

function     exception,     namely,       whether       considerations       of    public

policy     are    implicated      in     the     discretion        given     to    prison

officials in their decisions about the separation of prisoners.

See Gaubert, 499 U.S. at 322–23.                  Although this is an issue of

first impression in this Court, other federal appellate courts

have held that prisoner placement and the handling of threats

posed by inmates against one another are “part and parcel of the

inherently       policy-laden         endeavor     of     maintaining        order    and

preserving security within our nation’s prisons.”                            Cohen, 151

F.3d at 1344; see also Alfrey v. United States, 276 F.3d 557,

563-65 (9th Cir. 2002); Calderon v. United States, 123 F.3d 947,

951   (7th   Cir.    1997).       Factors        such    as     available    resources,

proper     classification        of     inmates,        and   appropriate         security

levels     are   “inherently          grounded     in     social,    political,        and

economic policy.”          Dykstra v. U.S. Bureau of Prisons, 140 F.3d

791, 796 (8th Cir. 1998); cf. Bell v. Wolfish, 441 U.S. 520,

547-48 (1979) (“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



                                           12
internal     order     and    discipline       and    to     maintain       institutional

security.”).

       We agree with the reasoning of our sister circuits.                            Prison

officials are afforded discretion in determining where to place

inmates      and    whether     to    keep        certain     individuals       or        gangs

separated     from    one    another.         Because        these    decisions       invoke

several    policy     considerations         for     prison    administrators,             they

are precisely the kind of determinations that the discretionary

function exception is intended to protect.                           We therefore hold

that   the    discretionary      function          exception     shields      the     prison

officials from liability with respect to whether they should

have separated Rich from his attackers.

       We also conclude that Rich is not entitled to discovery on

this issue.         Even accepting all of Rich’s allegations regarding

his    history       with     the     Aryan         Brotherhood        as     true,         the

discretionary        function       exception        still     would    apply        to     the

decisions      of     the     officials       regarding         prisoner       placement,

ultimately depriving us of jurisdiction.                       And because no facts

that    Rich        could     uncover     in        discovery        would      establish

jurisdiction, we hold that the district court did not abuse its

discretion in refusing Rich discovery regarding the officials’

decision to not separate Rich from his attackers.                            See Durden,

736 F.3d at 307-08.



                                             13
                                       C.

      We reach a different conclusion regarding the availability

of discovery with respect to Rich’s allegations that the prison

officials did not search his attackers properly before placing

them in the recreation cage.           Unlike the allegations underlying

Rich’s claim regarding the prison officials’ duty to separate

Rich from his attackers, which failed on their face to establish

subject matter jurisdiction, disputed jurisdictional facts are

intertwined    with    the   merits    of    Rich’s    claim   regarding    the

execution of the patdowns.       See Kerns, 585 F.3d at 193.

      For   example,    in   support    of   the   government’s    motion    to

dismiss, the prison officials provided declarations that they

did in fact perform patdowns of the inmates involved on the date

of the incident.       Those declarations stand in direct contrast to

Rich’s allegation that the officials “failed to properly screen,

‘wand,’ or search inmates entering the SHU and/or SHU recreation

cages.”     That allegation is relevant not only to whether the

discretionary function exception applies and, thus, whether we

have subject matter jurisdiction over this claim, but also to

the merits of Rich’s negligence allegation.

      We find no merit in the government’s argument that Rich did

not   allege   that    the   prison    officials      completely   failed    to

patdown or “wand” his attackers, but alleged only that these

searches were not done properly.             Rich’s complaint can be read

                                       14
fairly to allege both that the officials did not perform the

searches properly, and that the officials failed to perform the

searches     in       any   manner.         Rich   maintained    this     position

throughout the litigation.             A period of discovery would afford

Rich the opportunity to challenge these officials’ assertions

concerning their performance of the searches.

     Even        if    we   accept    the    prison      officials’   uncontested

declarations, the fact that they performed patdowns does not

resolve     the       question   whether     the   officials    performed      those

patdowns properly.           The BOP’s Program Statement provides that

“[a]ny     pat    search     shall    be     conducted    as   outlined   in     the

Correctional Services Manual,” suggesting the existence of more

specific directives.             Rich should be permitted the opportunity

for discovery of that Correctional Services Manual to determine

whether      more        specific     directives      exist     concerning       the

performance of patdowns. 7




     7 We do not decide whether, even in the absence of more
specific mandates, the manner in which a patdown is performed
qualifies for the discretionary function exception.     We note,
however, that the government offers no limiting principle to its
rationale as to when the exception should apply.        There is
always some level of discretion regarding the performance of
even the most specific of mandates, which under the government’s
argument would mean that the discretionary function exception
would always apply. Moreover, the government could only suggest
reasons of “security” generally as the policy consideration
involved in the manner of performing patdowns.


                                            15
       Additionally, when inmates have a prior history of weapons

possession, the Post Orders require a “visual search” of those

inmates, involving a search of the body cavity, prior to their

entry into a recreation cage.                    Discovery could uncover whether

any of Rich’s attackers had a history of weapons possession that

would have triggered this visual search requirement.                                    Such an

additional mandate would affect any analysis concerning whether

the prison officials properly performed searches as required. 8

       Finally,        we     observe    that    Rich    may    be    able       to    establish

jurisdiction            even     if,     under        typical        circumstances,         the

discretionary function exception applies to the manner in which

prison       officials        perform    patdowns.         The       Second       Circuit    has

acknowledged that discretionary conduct cannot be grounded in a

policy       decision         when   that    conduct     is     marked       by       individual

carelessness or laziness.                See Coulthurst v. United States, 214

F.3d       106   (2d    Cir.     2000)      (concluding       that    the     discretionary

function         exception       would    not    apply    to     a    prison          official’s

inspection of faulty weight equipment that caused plaintiff’s

injuries         if    that    inspection       was    performed       in    a    “carelessly

       8
       At oral argument, the government contended that providing
certain types of information to inmates, such as camera
placements and security methods employed by prison officials,
would present serious safety risks by allowing inmates to
uncover any potential holes in prison safety procedures. We are
confident that the district court can implement appropriate
measures during the course of discovery to prevent any
unnecessary disclosure of critical security information.


                                                16
inattentive” manner).         The fact that a nine-inch-long knife was

recovered at the scene of Rich’s attack, in spite of the prison

officials’ averments that each performed the required searches

properly,    at     least     suggests          the   possibility        of   careless

inattention.       In that case, the prison officials would not be

shielded    by    the    discretionary       function       exception     because    no

policy considerations would be implicated.

     Discovery          provides     a     procedural         safeguard       when    a

jurisdictional      inquiry        would    require         the   consideration      of

merits-based      evidence.        See     Kerns,     585    F.3d   at   193.     This

safeguard does not disappear simply because the plaintiff is a

prisoner.    Of course, courts frequently apply the discretionary

function exception to prison officials’ efforts to ensure the

safety of prisoners under difficult circumstances, e.g., Cohen,

151 F.3d at 1344; Alfrey, 276 F.3d at 564-67; Calderon, 123 F.3d

at 949-51, and that may be the ultimate outcome here as well.

Nevertheless, we conclude that Rich is entitled to the safeguard

of discovery before his complaint is dismissed.

     Because the jurisdictional facts regarding the propriety of

the prison officials’ patdowns are intertwined with the merits

of Rich’s allegations, the district court “should resolve the

relevant factual disputes only after appropriate discovery.”                         In

re KBR, Inc., 744 F.3d at 334 (citation omitted).                        Accordingly,

we vacate in part, and remand, to allow Rich to proceed to

                                           17
discovery    on   the   issue   whether     and    how     the    prison   officials

performed the patdowns and searches, and whether more specific

directives    existed     regarding    the        manner     of    performing    the

patdowns and searches.



                                      III.

     For these reasons, we affirm the district court’s decision

that the discretionary function exception applies to the prison

officials’ decision not to separate Rich from his attackers.

However, we vacate the district court’s judgment with respect to

the issue of the prison officials’ performance of the patdowns

and searches, and remand for additional proceedings consistent

with this opinion.

                                                                  AFFIRMED IN PART,
                                                                   VACATED IN PART,
                                                                       AND REMANDED




                                       18
