                     REVISED AUGUST 16, 2010

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

                                                                  FILED
                                                                  July 30, 2010
                                 No. 09-41039
                                                                Lyle W. Cayce
                                                                     Clerk

KELVIN ANDRE SPOTTS; BILLY AGUERO; MARCUS T. ARNOLD;
BAENA JOSE MENDOZA; LLOYD BATTLES; ET AL

                                           Plaintiffs - Appellants
v.

UNITED STATES OF AMERICA

                                           Defendant - Appellee



                Appeal from the United States District Court
                     for the Eastern District of Texas


Before JONES, Chief Judge, and KING and HAYNES, Circuit Judges.
KING, Circuit Judge:
      The plaintiffs–appellants, 453 present and former inmates of the Federal
Correctional Complex, United States Penitentiary, in Beaumont, Texas, appeal
the district court’s dismissal of their claims under the Federal Tort Claims Act
(FTCA) against the United States in connection with the decision made by
Gerardo Maldonado, the Regional Director of the South Central Region of the
Federal Bureau of Prisons, not to evacuate the Penitentiary in the aftermath of
                                        No. 09-41039

Hurricane Rita.1 The plaintiffs also challenge the district court’s denial of leave
to amend their complaint to add Bivens claims against individual Penitentiary
officials. For the reasons discussed below, we affirm.
                                  I.    BACKGROUND
       Hurricane Rita, a Category 3 storm, came ashore on September 24, 2005,
shifting eastward in the final hours before landfall away from Houston, Texas,
and toward Beaumont, Texas, which sustained a direct hit.                        The Federal
Correctional Complex in Beaumont, Texas, has three units: a low-security
Federal Correctional Institution; a medium-security Federal Correctional
Institution; and a high-security United States Penitentiary. Inmates from the
low- and medium-security facilities were evacuated before or shortly after the
hurricane’s arrival. The plaintiffs in this suit, inmates from the high-security
Penitentiary, were not evacuated—a decision that Maldonado made the day
after the storm.
       Hurricane Rita left Beaumont without electricity, water, or gasoline, and
the city was declared to be part of a nine-county disaster area. The storm left
the Federal Correctional Complex with significant damage, rendering its
emergency generator inoperable, sweeping away large portions of its roof, and
leaving it without a supply of potable water. The plaintiffs’ evidence shows that
Penitentiary officials attempted early on to establish a temporary power grid but
that their efforts were frustrated by unexpected setbacks.                        Emergency
generators were delivered to the Penitentiary shortly after the storm, but
without sufficient heavy wire to establish a grid. This wire was not readily


       1
         The plaintiffs also initially challenged Maldonado’s decision not to evacuate before the
arrival of Hurricane Rita, but stated at oral argument that they are no longer pursuing this
claim.

                                               2
                                  No. 09-41039

available, requiring Penitentiary officials to place a special order that took
additional time to fill. According to the plaintiffs’ allegations, the Penitentiary
was without electrical power for 36 days.
      The significant discomfort caused by the lack of electricity was aggravated
by a heat wave that swept the region in the days after the storm.             The
temperature exceeded 100 degrees Fahrenheit on sixteen of the days that the
facility was without electricity and exceeded 90 degrees Fahrenheit on an
additional seven. Inside the Penitentiary, the temperature was sometimes much
higher. Floor wax melted; the cement and brick walls sweated; within a few
days after the storm, the moisture developed into a slimy black mold. Without
a working air conditioner, the air inside the prisoners’ cells was stagnant. The
inmates spent their nights in pitch black darkness, without the ability to access
electric emergency alarms.
      The inmates allege that during the first three days after the storm, they
remained locked in their cells. Inmates with chronic ailments did not have
access to medical care—asthmatics could not access inhaler refills, diabetics
could not get their insulin. During these first days, the inmates allege that they
“received no food at all from the guards.” The guards did distribute water, but
it was “colored brown with some type of matter flowing in it,” and smelled foul.
The plaintiffs contend that they drank this water in any case because they were
so dehydrated from the heat. On September 26, 2005, the prisoners received
written confirmation in a memorandum from Timothy Outlaw, the Warden of
the Beaumont complex, that the Penitentiary’s water source had been declared
non-potable and “should not be ingested under any circumstance.”
      The plaintiffs allege that when they first received a meal, four days after
the storm, the food provided was sandwiches made with moldy bread and spoiled

                                        3
                                         No. 09-41039

meat and cheese or peanut butter, and that from that point they received no
more than two sandwiches daily until power was restored. Around the same
time that the plaintiffs first received food, they began receiving one liter of
sanitary water per day, though they contend that this was not sufficient to
replenish fluids lost from the heat.
       The inmates allege that they were not given the opportunity to shower
until October 8, 2005, fourteen days after the storm. They allege that the
shower water had a brownish color and offensive smell, and that the water
immediately caused skin problems, such as open wound sores; peeling skin with
pus; itching, burning rashes; and boils. The inmates did not receive medicine for
these issues. No clean clothes were available, so the inmates were required to
put their dirty clothes back on after showering.
       The plaintiffs allege that they could not flush their toilets during the
entire 36-day period, and that the odor of urine and feces in their cells was
overpowering. There was little toilet paper and no way to wash their hands.
When the toilets became too full, the guards passed out plastic bags in which the
prisoners could relieve themselves. Filled bags were collected only at irregular
intervals.2

       2
          Although in this procedural posture we do not make any findings as to the credibility
of the plaintiffs’ allegations, we note that certain exhibits attached to the plaintiffs’ own filings
in the district court contradict some of the allegations raised in this case. For example,
Outlaw’s September 26, 2005, memorandum to prisoners regarding non-potable water added
that although the water should not be ingested, it could otherwise “be utilized for routine daily
usage,” including bathing, washing clothing, and “drain[ing] washbasins of bodily waste.” The
implication of this memorandum is that the prisoners in fact had access to water in their cells
for at least the limited purpose of flushing toilets. The plaintiffs have not attempted to explain
why this memorandum, to which they have cited heavily for other purposes, does not
controvert certain of their allegations. The plaintiffs also attached Penitentiary logs indicating
that by September 27, 2005, three days after the storm, inmates “were given one floor fan and
one disinfectant per cell”; inmates were released “out into the pod for 1 1/2 hours”; a Mrs.

                                                 4
                                       No. 09-41039

       The plaintiffs allege that they suffered physical injuries as the result of
these events, including episodes of high stress; high blood pressure and heart
disease; respiratory and lung disorders (from alleged exposure to ammonia from
urine and feces and to mold); heat exhaustion and heat stroke; dehydration and
malnutrition; Heliobactor Pylori (H. Pylori) infection (due to alleged exposure to
human waste); diarrhea (due to alleged e-coli and salmonella exposure); blood
stream infections; sleep deprivation; muscle atrophy (due to inactivity during
lockdown); worsening of existing medical conditions; constipation; and pain from
hunger. They also allege mental injuries, including post-traumatic stress
disorder; suicidal tendencies; depression; insomnia; and delusions. The plaintiffs
also allege, without elaboration, that two inmates died as a result of these
conditions.
       The plaintiffs sued under the FTCA alleging that the decision not to
evacuate the inmates after the storm gave rise to the state-law torts of
negligence, recklessness, deliberate indifference, intentional infliction of
emotional distress, malice, and wrongful death.3                 When the district court
dismissed those claims under Federal Rule of Civil Procedure 12(b)(1) for lack
of subject matter jurisdiction, the plaintiffs sought leave to file a Fourth


Baird’s bread truck had arrived at the facility; the Penitentiary anticipated delivery of 93,000
half-pint bottles of water every four days starting on September 30, 2005, and every three days
after October 7, 2005; and 11 medical relief staff had arrived with nurses and mid-level
providers. The plaintiffs have not addressed the apparent inconsistencies between their
allegations and the actions documented in the logs they attach.
       3
           The plaintiffs also brought a claim under the FTCA for an Eighth Amendment
violation as a “constitutional tort.” Constitutional torts, of course, do not provide a proper
predicate for an FTCA claim. See FDIC v. Meyer, 510 U.S. 471, 478 (1994) (holding that a
plaintiff’‘s FTCA claim must be based on a state-law tort claim and cannot be based on a
federal constitutional or statutory claim against the Government). They do not reurge the
Eighth Amendment as an FTCA predicate on appeal.

                                               5
                                        No. 09-41039

Amended Complaint that raised substantially the same claims in an action
against individual Penitentiary officers under Bivens v. Six Unknown Agents of
the Federal Bureau of Narcotics, 403 U.S. 388 (1971). The district court adopted
the magistrate judge’s recommendation that leave to file the amended complaint
under Federal Rule of Civil Procedure 15 be denied. The magistrate judge
reasoned that leave would be futile because the Bivens claims were time-barred.
The plaintiffs appeal both the dismissal of their FTCA claims and the denial of
leave to amend.
                           II.    STANDARD OF REVIEW
       We review de novo the district court’s order granting the Government’s
motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of
subject matter jurisdiction.          St. Tammany Parish, ex rel. Davis v. Fed.
Emergency Mgmt. Agency, 556 F.3d 307, 315 (5th Cir. 2009). “In our de novo
review . . . , we apply the same standard as does the district court.” Wagstaff v.
U.S. Dep’t of Educ., 509 F.3d 661, 663 (5th Cir. 2007) (internal quotation marks
omitted). In applying Rule 12(b)(1), the district court “has the power to dismiss
for lack of subject matter jurisdiction on any one of three separate bases: (1) the
complaint alone; (2) the complaint supplemented by undisputed facts evidenced
in the record; or (3) the complaint supplemented by undisputed facts plus the
court’s resolution of disputed facts.” St. Tammany Parish, 556 F.3d at 315
(internal quotation marks omitted). “Here, the district court did not resolve any
disputed facts,[4] so we, as did the district court, consider the allegations in the


       4
         The plaintiffs contend that the district court and magistrate judge did resolve disputed
facts by citing certain disputed statements from a declaration by Maldonado that the
Government submitted as an exhibit to its motion to dismiss. But there is no evidence that
the district court or magistrate judge relied upon Maldonado’s declaration in reaching their

                                               6
                                       No. 09-41039

plaintiff’s complaint as true.” Id. (internal quotation marks omitted). “[O]ur
review is limited to determining whether the district court’s application of the
law is correct and, to the extent its decision [was] based on undisputed facts,
whether those facts are indeed undisputed.” Id. (internal quotation marks
omitted). We then ask if dismissal was appropriate. Id.
       Although we generally review a district court’s denial of leave to amend
for abuse of discretion, where, as here, the district court’s sole reason for denying
such an amendment is futility, “we must scrutinize that decision somewhat more
closely, applying a de novo standard of review similar to that under which we
review a dismissal under Rule 12(b)(6).” Wilson v. Bruks–Klockner, Inc., 602
F.3d 363, 368 (5th Cir. 2010); see also Stripling v. Jordan Prod. Co., LLC, 234
F.3d 863, 872–73 (5th Cir. 2000).
                             III.    THE FTCA CLAIMS
       The FTCA waives sovereign immunity and permits suit against the United
States for claims sounding in state tort law for money damages. 28 U.S.C.
§ 2674 (waiving sovereign immunity to make the Government liable “in the same
manner and to the same extent as a private individual under like
circumstances”). It provides district courts with jurisdiction over monetary
claims against the Government for the negligent or wrongful acts of its
employees “where the United States, if a private person, would be liable to the
claimant in accordance with the law of the place where the act or omission
occurred.” 28 U.S.C. § 1346(b)(1).


determinations, or that the declaration was relevant or necessary to their determinations. See
Spotts v. United States, 1:08-cv-376, 2009 WL 3150872, at *3 (E.D. Tex. Sept. 26, 2009). In
any event, we do not rely upon Maldonado’s declaration in our de novo review, instead taking
the plaintiffs’ allegations as true.

                                              7
                                      No. 09-41039

      The liability of the United States under the FTCA, however, is subject to
various exceptions contained in 28 U.S.C. § 2680, including the “discretionary
function” exception. See United States v. Gaubert, 499 U.S. 315, 322 (1991). The
discretionary function exception withdraws the FTCA’s waiver of sovereign
immunity in situations in which, although a government employee’s actions may
have been actionable under state tort law, those actions were required by, or
were within the discretion committed to, that employee under federal statute,
regulation, or policy:
      The provisions of this chapter and section 1346(b) of this title shall
      not apply to[ a]ny claim based upon an act or omission of an
      employee of the Government, exercising due care, in the execution
      of a statute or regulation, whether or not such statute or regulation
      be valid, or 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). The Government contends that the discretionary function
exception applies to the challenged decision in this case because in deciding not
to evacuate after the storm, Maldonado was operating within the bounds of the
discretion committed to him under 18 U.S.C. § 4042(a), which requires the
Federal Bureau of Prisons to provide for the safekeeping, care, and subsistence
of all federal prisoners, but does not indicate the manner in which the duty must
be fulfilled.5     The district court concluded that the discretionary function


      5
          Section 4042(a) provides:

      (a) In general.—The Bureau of Prisons, under the direction of the Attorney
      General, shall—
             (1) have charge of the management and regulation of all Federal penal
             and correctional institutions;
             (2) provide suitable quarters and provide for the safekeeping, care, and

                                            8
                                       No. 09-41039

exception deprived it of subject matter jurisdiction and granted the
Government’s motion to dismiss under Rule 12(b)(1) on that basis. The plaintiffs
appealed, arguing that the discretionary function exception should not apply
because Maldonado violated nondiscretionary duties imposed by other statutes,
regulations, and policies in deciding not to evacuate after the storm.
       To properly evaluate the plaintiffs’ contentions, some exegesis of the
operation of the discretionary function exception is necessary. The Supreme
Court has developed a two-part test for determining whether agency conduct
qualifies as a discretionary function or duty. See Gaubert, 499 U.S. at 322–23.
Under the first prong, the conduct must be a “matter of choice for the acting
employee.” Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531, 536 (1988).
“The exception covers only acts that are discretionary in nature, acts that
‘involv[e] an element of judgment or choice.’” Gaubert, 499 U.S. at 322 (quoting
Berkovitz, 486 U.S. at 536). Thus, “‘it is the nature of the conduct, rather than
the status of the actor’ that governs whether the exception applies.” Id. (quoting
United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines),
467 U.S. 797, 813 (1984)). If a statute, regulation, or policy leaves it to a federal
agency to determine when and how to take action, the agency is not bound to act



              subsistence of all persons charged with or convicted of offenses against
              the United States, or held as witnesses or otherwise;
              (3) provide for the protection, instruction, and discipline of all persons
              charged with or convicted of offenses against the United States;
              (4) provide technical assistance to State and local government in the
              improvement of their correctional systems; and
              (5) provide notice of release of prisoners in accordance with subsections
              (b) and (c).

18 U.S.C. § 4042(a).

                                              9
                                   No. 09-41039

in a particular manner and the exercise of its authority is discretionary. See id.
at 329.
      “The requirement of judgment or choice is not satisfied” and the
discretionary function exception does not apply, however, “if a ‘federal statute,
regulation, or policy specifically prescribes a course of action for an employee to
follow,’ because ‘the employee has no rightful option but to adhere to the
directive.’” Id. at 322 (quoting Berkovitz, 486 U.S. at 536). In other words, the
discretionary function exception does not apply if the challenged actions in fact
violated a federal statute, regulation, or policy. See id. at 324 (“If the employee
violates [a] mandatory regulation, there will be no shelter from liability because
there is no room for choice and the action will be contrary to policy.”); Berkovitz,
486 U.S. at 547 (“[I]f the [agency]’s policy did not allow the official who took the
challenged action to [act] on the basis of policy considerations[,] the discretionary
function exception does not bar the claim.”). As the circuits have concluded, the
reason for this rule is obvious—a federal employee cannot be operating within
his discretion if he is in fact violating a nondiscretionary policy. Our court has
explained:
      Just because the discretionary function exception would generally
      shield the government from FTCA liability otherwise arising from
      [a] policy decision, it does not follow that the government is
      automatically shielded from such liability when the acts of the
      particular agents seeking to implement that policy violate another
      federal law, regulation, or express policy. Actions taken to carry out
      a discretionary policy must be taken with sufficient caution to
      ensure that, at a minimum, some other federal law is not violated
      in the process.
Johnson v. Sawyer, 980 F.2d 1490, 1503 (5th Cir. 1992), vacated on other
grounds, 47 F.3d 716 (5th Cir. 1995).


                                         10
                                  No. 09-41039

      Under the second prong of the test, “even ‘assuming the challenged
conduct involves an element of judgment,’” and does not violate a
nondiscretionary duty, we must still decide whether the “‘judgment is of the kind
that the discretionary function exception was designed to shield.’” Gaubert, 499
U.S. at 322–23 (quoting Berkovitz, 486 U.S. at 536); see also Varig Airlines, 467
U.S. at 813. “Because the purpose of the exception is to ‘prevent judicial “second-
guessing” of legislative and administrative decisions grounded in social,
economic, and political policy through the medium of an action in tort,’ when
properly construed, the exception ‘protects only governmental actions and
decisions based on considerations of public policy.’” Gaubert, 499 U.S. at 323
(quoting Berkovitz, 486 U.S. at 537; Varig Airlines, 467 U.S. at 814 (internal
citation omitted)). In this regard, “if a regulation allows the employee discretion,
the very existence of the regulation creates a strong presumption that a
discretionary act authorized by the regulation involves consideration of the same
policies which led to the promulgation of the regulations.” Id. at 324.
      The plaintiffs contend that neither prong of the Berkovitz test is satisfied
in this case. They contend that prong one is not satisfied because Maldonado’s
decision not to evacuate violated certain nondiscretionary statutory and policy
duties. They contend that prong two is not satisfied because the decision not to
evacuate was not a policy judgment or susceptible to policy analysis. Each of
these contentions is discussed in turn. We note that the plaintiffs bear the
burden of showing Congress’s unequivocal waiver of sovereign immunity. See
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). At the
motion to dismiss stage, this includes pleading facts that facially allege matters




                                        11
                                      No. 09-41039

outside of the discretionary function exception. St. Tammany Parish, 556 F.3d
at 315 n.3.
A.     Prong One: Whether the Decision Not to Evacuate Violated
       Nondiscretionary Duties
       The plaintiffs do not dispute that Maldonado’s decision not to evacuate fell
within the bounds of discretion committed to him for the administration of
prisons under 18 U.S.C. § 4042(a). They contend, however, that the Eighth
Amendment, the Safe Drinking Water Act, and various policies of the Federal
Bureau of Prisons imposed nondiscretionary duties that were violated by the
decision not to evacuate.6 In evaluating these arguments, we accept arguendo
the plaintiffs’ contention that to constrain Maldonado’s discretion in this case,
the statute, regulation, or policy at issue need not specifically require
evacuation, but instead might simply impose other nondiscretionary
duties—such as duties to provide certain living standards to inmates—that
Maldonado would have violated in deciding not to evacuate.
       1.     The Eighth Amendment
       The plaintiffs argue on appeal that Maldonado’s decision not to evacuate
violated the Eighth Amendment’s ban on cruel and unusual punishment, and
that this constitutional violation precludes the application of the discretionary
function exception. This court has not yet determined whether a constitutional
violation, as opposed to a statutory, regulatory, or policy violation, precludes the
application of the discretionary function exception. See Castro v. United States,
608 F.3d 266 (5th Cir. 2010). We need not decide the issue here, however,


       6
         An “Adverse Weather Contingency Plan” for the Beaumont facility imposed certain
nonmandatory duties on the Penitentiary officials, but the plaintiffs do not allege on appeal
that the officials’ decision not to evacuate violated any of these duties.

                                             12
                                      No. 09-41039

because we conclude that the plaintiffs waived this argument by failing to raise
it in the district court.
       We observe, as the Government emphasized at oral argument, that
although the plaintiffs’ pleadings asserted that the officials’ conduct of the
Penitentiary in the aftermath of the storm was “cruel and unusual” and
therefore a “constitutional tort” actionable under the FTCA,7 the plaintiffs did
not plead, and never argued to the district court, that the Eighth Amendment
precluded the application of the discretionary function exception. Even in their
objections to the magistrate judge’s report and recommendations, in which the
plaintiffs cited numerous federal statutory and regulatory requirements that
they contended precluded the application of the discretionary function exception,
they nowhere cited the Eighth Amendment for the same.                     The plaintiffs’
argument that the Eighth Amendment precluded the operation of the
discretionary function exception appeared for the first time in their appellate
briefing, where it became virtually the centerpiece of the appeal. The plaintiffs
have not explained why they did not raise this argument earlier.
       To state a claim under the FTCA, a plaintiff has the burden of stating a
claim for a state-law tort and establishing that the discretionary function
exception does not apply. St. Tammany Parish, 556 F.3d at 315 n.3. The
plaintiffs never raised their present Eighth Amendment argument when the
district court was evaluating the merits of their FTCA claim. By failing to plead
or otherwise argue to the district court that the alleged Eighth Amendment


       7
         Such claims are not actionable under the FTCA. As noted above, a constitutional
violation does not provide a proper predicate for an FTCA claim. See FDIC v. Meyer, 510 U.S.
at 478 (holding that a plaintiff’s FTCA claim must be based on a state-law tort claim and
cannot be based on a federal constitutional or statutory claim against the Government).

                                            13
                                  No. 09-41039

violation precluded the application of the discretionary function exception, the
plaintiffs have waived this contention on appeal. See, e.g., Lemaire v. La. Dep’t
of Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007) (“[A]rguments not raised
before the district court are waived and cannot be raised for the first time on
appeal.”); Tex. Comm. Energy v. TXU Energy, Inc., 413 F.3d 503, 510 (5th Cir.
2005).
       2.    The Safe Drinking Water Act
       The plaintiffs also contend that the decision not to evacuate after the
storm violated nondiscretionary duties imposed by the Safe Drinking Water Act,
42 U.S.C. §§ 300f et seq., which sets out national drinking water regulations for
public water systems in each state. Among other requirements, the Act imposes
maximum permissible levels for certain drinking water contaminants. As a
matter of Bureau of Prisons policy, under Program Statement 1600.08, federal
prison officials are required to follow the provisions of the Safe Drinking Water
Act.
       We first note that the plaintiffs have not, in the district court or in this
court, specified which requirements of the Safe Drinking Water Act the
conditions at the Penitentiary failed to meet. The plaintiffs’ pleadings and
briefing only allege, conclusorily, that Maldonado’s decision as to whether or not
to evacuate was constrained by nondiscretionary duties imposed by the Safe
Drinking Water Act.       They do not state which provisions of the Act, or
regulations promulgated under the Act, were violated by that decision. These
vague allegations, without more, arguably do not satisfy the plaintiffs’ burden




                                        14
                                       No. 09-41039

of pleading facts that allege conduct outside the discretionary function exception.
See St. Tammany Parish, 556 F.3d at 315 n.3.8
       In any event, the plaintiffs’ contention that the Safe Drinking Water Act
imposed nondiscretionary duties that were contravened by the decision not to
evacuate lacks merit.          The Safe Drinking Water Act delegates primary
enforcement responsibility to the individual states, provided that the
Environmental Protection Agency’s Administrator has certified the state as
meeting the conditions prescribed by 42 U.S.C. § 300g–2 and the regulations
promulgated under that statute. Texas has obtained such certification.9 Texas
law provides a defense against water quality enforcement actions in
circumstances of natural disasters. TEX. WATER CODE ANN. § 7.251 (West 2008)
(“If a person can establish that an event that would otherwise be a violation of
a statute within the commission’s jurisdiction . . . was caused solely by an act of
God, war, strike, riot, or other catastrophe, the event is not a violation of that
statute, rule, order, or permit.”).         In the aftermath of Hurricane Rita, on
September 27, 2005, the Texas Commission on Environmental Quality invoked
§ 7.251 and issued a Regulatory Guidance document, which provided that “all
rules and regulations that may inhibit or prevent prompt response to this threat


       8
          The plaintiffs contend that they filed evidence supporting a finding that the Safe
Drinking Water Act was violated as exhibits to a motion for summary judgment filed in the
district court. But that motion was never resolved, resolution having been stayed pending the
district court’s decision on the motion to dismiss. Furthermore, although some of these exhibits
describe problems with water quality at the Penitentiary in the immediate aftermath of the
storm, the plaintiffs again do not explain which provisions of the Safe Drinking Water Act are
implicated by these problems.
       9
        See Tex. Comm’n on Envt’l Quality, Public Water Supply Supervision Program, at
http://www.tceq.state.tx.us/permitting/water_supply/pdw/pwss.html (last visited June 22,
2010).

                                              15
                                  No. 09-41039

are suspended for the duration of the incident.” Because the nondiscretionary
duties otherwise imposed by the Safe Water Drinking Act were suspended in the
aftermath of the hurricane, the plaintiffs cannot rely on these duties as bases for
constraining Maldonado’s discretion.
      3.       Program Statement 1290.04
      Finally, the plaintiffs contend that the decision not to evacuate after
Hurricane Rita violated nondiscretionary policy duties imposed by Bureau of
Prisons Program Statement 1290.04, titled “Correctional Statements and
Accreditation.”    Program Statement 1290.04 requires federal correctional
institutions to obtain accreditation from the American Correctional Association
(ACA), a private, nonprofit organization. The ACA will grant accreditation if the
correctional institution meets a certain number of mandatory and nonmandatory
standards promulgated by the ACA.         Full compliance with nonmandatory
standards is not necessary to obtaining accreditation. See AM. CORRECTIONAL
ASS’N, STANDARDS FOR ADULT CORRECTIONAL INSTITUTIONS xviii (4th ed. 2003).
Throughout their briefing, the plaintiffs cite to a superseded version of this
publication.    The current, 2003 version sets out the standards that were
applicable when Hurricane Rita made landfall in September 2005. In the
current edition, the standards have been renamed “Expected Practices” and have
been renumbered. In discussing the standards the plaintiffs have cited, we refer
to both the superseded and renumbered versions.
      Program Statement 1290.04 sets out the requirement of ACA
accreditation; the time frame for obtaining accreditation; the circumstances
under which the time for accreditation may be extended or waived; procedures
for annual recertification; and the methods through which compliance will be
monitored and audited. It does not set out the particular mandatory and

                                        16
                                       No. 09-41039

nonmandatory standards that the ACA considers in granting accreditation, nor
does it incorporate them by reference.               The plaintiffs do not allege that
Maldonado’s decision not to evacuate after Hurricane Rita resulted in a failure
to obtain accreditation or recertification for the Penitentiary. They therefore
have not alleged that Maldonado’s decision violated nondiscretionary duties
imposed by Program Statement 1290.04.
       In any event, the majority of the ACA standards that the plaintiffs allege
to have been violated are nonmandatory.10 And as to the mandatory statements
that the plaintiffs allege were violated, none imposes duties that were violated
by the decision not to evacuate. The plaintiffs cite Expected Practice 4-4332
(formerly Standard 3-4313), which requires institutions to “provide[ ] for the
control of vermin and pests,” as evidence that the Penitentiary officials were
required to remediate the mold that grew on the Penitentiary walls in the damp
aftermath of the storm. But the plaintiffs do not cite a dictionary definition or
otherwise explain how mold qualifies as a “vermin” or “pest.” The plaintiffs next
cite Expected Practice 4-4330 (formerly Standard 3-4311), which requires an
institution’s potable water to be “in compliance with jurisdictional laws and

       10
         See, e.g., Expected Practice 4-4216 (formerly Standard 3-4204) (prison should possess
“equipment necessary to maintain essential lights, power, and communications in an
emergency”); Expected Practice 4-4328 (formerly Standard 3-4309) (prison should serve at
least three meals per day, two of them hot); Expected Practice 4-4340 (formerly Standard 3-
4321) (prison should provide freshly-laundered sheets, pillows, pillowcases, and towels at least
weekly); Expected Practice 4-4342 (formerly Standard 3-4324) (prison should provide personal
hygiene items such as toilet paper); Expected Practice 4-4137 (formerly Standard 3-4132)
(prison should provide 24-hour access to toilets and hand-washing); Expected Practice 4-4138
(formerly Standard 3-4133) (prison should provide operable wash basins with hot and cold
running water); Expected Practice 4-4139 (formerly Standard 3-4134) (prison should provide
operable showers with hot and cold running water); Expected Practice 4-4152 (formerly
Standard 3-4145) (prison should maintain indoor air circulation of 10 cubic feet of fresh or
recirculated filtered air per occupant); Expected Practice 4-4153 (formerly Standard 3-4146)
(prison should maintain indoor living temperatures appropriate for the season).

                                              17
                                  No. 09-41039

regulations,” and contend that under this Expected Practice, the Penitentiary
officials were required to comply with the provisions of the Safe Drinking Water
Act. But, as discussed above, the requirements of the Safe Drinking Water Act
were suspended by law in the aftermath of the storm. Finally, the plaintiffs cite
Expected Practice 4-4344 (formerly Standard 3-4331), which requires that
“[u]pon arrival at the facility, all offenders [be] informed about how to access
health services and the grievance system.” There is no allegation that the
Penitentiary officials failed to inform inmates about health system access. In
sum, Maldonado’s decision not to evacuate did not violate any nondiscretionary
duties imposed by the standards that the plaintiffs cite.
      The parties agree that in deciding not to evacuate after the storm,
Maldonado was acting within the discretion accorded by 18 U.S.C. § 4042(a).
The plaintiffs have not pointed to any nondiscretionary duties that were violated
by the exercise of this discretion. Accordingly, the decision meets the first prong
of the Berkovitz test.
B.    Prong Two: Whether the Decision Not to Evacuate Was “Based on
      Considerations of Public Policy”
      Under the second prong of the Berkovitz test, we agree with the district
court that Maldonado’s decision not to evacuate the Penitentiary in the
aftermath of Hurricane Rita was the type of public policy consideration that the
discretionary function exception shields from judicial scrutiny. See Freeman v.
United States, 556 F.3d 326, 340 (5th Cir. 2009). As we observed in Freeman,
which involved a challenge to federal officials’ management of relief operations
and evacuation efforts in the aftermath of Hurricane Katrina, “the government’s
decisions about when, where, and how to allocate limited resources within the
exigencies of an emergency are the types of decisions that the discretionary

                                        18
                                       No. 09-41039

function exception was designed to shelter from suit.”                   Id.   We noted in
particular that “decisions regarding the feasibility, safety, and benefit of
mobilizing federal resources in the aftermath of a national disaster are grounded
in social, economic, and public policy.” Id. at 341. All of these concerns were
present here. Particularly in light of the “strong presumption” that, where
permitted by the relevant statute or regulation, the exercise of choice or
judgment implicates relevant policy, see Gaubert, 499 U.S. at 324, we conclude
that the official’s decision was the type of policy decision protected by the
discretionary function exception and therefore meets the second prong of the
Berkovitz test.
       In reaching this conclusion, we observe, as we did in Freeman, 556 F.3d
at 341, that the proper inquiry under prong two is not whether Maldonado in
fact engaged in a policy analysis when reaching his decision but instead whether
his decision was “susceptible to policy analysis.” Gaubert, 499 U.S. at 325 (“The
focus of the inquiry is not on the agent’s subjective intent in exercising the
discretion conferred by statute or regulation, but on the nature of the actions
taken and on whether they are susceptible to policy analysis.”); see also Shansky
v. United States, 164 F.3d 688, 692 (1st Cir. 1999) (“The critical question is
whether the acts or omissions that form the basis of the suit are susceptible to
a policy-driven analysis, not whether they were the end product of a policy-
driven analysis.”). Whatever Maldonado’s actual decisionmaking process, it is
clear that the health, safety, financial, and other feasibility concerns implicated
by the evacuation decision render that decision susceptible to policy analysis.11

       11
         The plaintiffs cite Whisnant v. United States, 400 F.3d 1177 (9th Cir. 2005), and In
re Katrina Canal Breaches Consolidated Litigation, 471 F. Supp. 2d 684 (E.D. La. 2007), for
the proposition that the decision not to evacuate is not susceptible to policy analysis, but, as

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                                        No. 09-41039

       Because both prongs of the Berkovitz test are met, we conclude that the
discretionary function exception precludes subject matter jurisdiction over the
plaintiffs’ FTCA claims. In reaching this conclusion, we do not minimize or
discount the severe hardships that the plaintiffs endured in the aftermath of the
storm. We simply lack jurisdiction to provide relief under the statute through
which the plaintiffs have chosen to pursue their claims.
                             IV.    THE BIVENS CLAIMS
       The plaintiffs also appeal the district court’s denial of leave to file a
proposed Fourth Amended Complaint, which would have raised substantially
the same claims against the individual Penitentiary officials as a Bivens action
in the event that the district court accepted the magistrate judge’s
recommendation to dismiss the plaintiffs’ FTCA claims. The magistrate judge
recommended that leave to amend under Federal Rule of Civil Procedure 15
should be denied as futile because the plaintiffs’ Bivens claims were time-barred.
The district court entered final judgment dismissing the FTCA claims for lack
of subject matter jurisdiction and denied “[a]ll motions not previously ruled on,”
which included the motion to amend.
       The magistrate judge reasoned that the Bivens claims were time-barred
because the applicable statute of limitations had run. As the magistrate judge
correctly observed, a Bivens action is controlled by the applicable state statute
of limitations. This circuit, applying Texas law, has held that the statute of


the district court explained, these cases are not binding precedent and are readily
distinguishable. See Spotts v. United States, No. 1:08-cv-376, 2009 WL 3150872, at *3 (E.D.
Tex. Sept. 26, 2009). The plaintiffs also contend that prong two is not satisfied if the decision
at issue violated nonmandatory duties. But this inquiry properly falls under prong one.
Moreover, we have already addressed and rejected the plaintiffs’ contention that the decision
at issue violated the various nonmandatory duties that they cite.

                                              20
                                   No. 09-41039

limitations period on a Bivens claim is two years, the statute of limitations
governing personal injuries in Texas. See Brown v. Nationsbank Corp., 188 F.3d
579, 590 (5th Cir. 1999); Pena v. United States, 157 F.3d 984, 987 (5th Cir. 1998).
The magistrate judge concluded that the Bivens claims were time-barred
because they accrued on September 24, 2005, when Hurricane Rita made
landfall, but the plaintiffs did not move for leave to file a Fourth Amended
Complaint until September 2, 2009, almost four years later. The magistrate
judge further concluded that the Bivens claims did not relate back to the original
complaint and that even if they did, they would be time-barred because the
original complaint was filed on January 9, 2008, more than two years after the
Bivens claims would have accrued.
      On appeal, the plaintiffs contend that the magistrate judge should have
applied Texas’s residual, four-year limitations period to the Bivens claim,
arguing that this is not a “personal injury lawsuit,” but a “civil rights complaint.”
This characterization of the claim does not help the plaintiffs because we have
previously held that federal civil rights claims filed in Texas are subject to
Texas’s two-year statute of limitations for personal injury. Jones v. Alcoa, 339
F.3d 359, 364 (5th Cir. 2003) (addressing § 1981 claims and stating: “Federal
civil rights actions . . . lack[ing] an express statute of limitations[ ] are governed
by the most closely analogous limitations period provided under state law. . . .
[I]n Texas, the two-year statute of limitations for personal injury actions in
Texas controls.”).
      The plaintiffs also challenge the magistrate judge’s conclusion that all of
their claims began to accrue on September 24, 2005, when the hurricane made
landfall. The plaintiffs contend that some inmates were not diagnosed with H.


                                         21
                                  No. 09-41039

Pylori infection until October 29, 2008, and argue that the statute of limitations
did not begin to run until that point. But the time of the actual diagnosis is not
dispositive. The plaintiffs contend that they began experiencing H. Pylori
symptoms almost immediately after the storm, and the record shows that they
began filing administrative claims regarding these symptoms as early as
February 2006. Under federal law, a claim accrues and “the limitations period
begins to run the moment the plaintiff becomes aware that he has suffered an
injury or has sufficient information to know that he has been injured.”
Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001) (modifications
and internal quotation marks omitted). The plaintiffs also complain that they
continue to be sickened by unremediated toxic mold and algae resulting from the
storm, and that the Penitentiary officials’ decision not to take remedial steps
constitutes a continuing tort. But, as the plaintiffs have conceded at numerous
points in this litigation, their only challenge is to the decision not to evacuate
after the storm. The plaintiffs do not attempt to draw any causal connection
between this evacuation decision and the continuing presence of mold on the
Penitentiary walls (which presumably would have grown whether or not the
prisoners were evacuated in the immediate aftermath of the storm), and this
court is aware of none. The amendment that the plaintiffs sought would have
been futile because the Bivens claims were time-barred. Accordingly, we affirm
the district court’s denial of leave to amend.
                             V.    CONCLUSION
      For the above reasons, we conclude that the United States has not waived
sovereign immunity for the discretionary functions alleged in this case and
therefore AFFIRM the district court’s dismissal for lack of subject matter


                                       22
                                 No. 09-41039

jurisdiction of the plaintiffs’ FTCA claims. We also AFFIRM the district court’s
denial of plaintiffs’ motion for leave to amend to add Bivens claims.




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