            Case: 15-13548   Date Filed: 08/29/2016   Page: 1 of 9


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-13548
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 5:14-cv-00421-WTH-PRL



NOLAN NATHANIEL EDWARDS,

                                                            Plaintiff-Appellant,

                                   versus

UNITED STATES OF AMERICA,

                                                           Defendant-Appellee.

                       ________________________

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

                             (August 29, 2016)

Before HULL, MARCUS and FAY, Circuit Judges.

PER CURIAM:
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      Nolan Nathaniel Edwards appeals from the dismissal of his pro se complaint

raising claims under the Federal Tort Claims Act (“FTCA”), 28 U.S.C.

§ 1346(b)(1). We affirm.

                               I. BACKGROUND

      On April 14, 2012, Edwards, a federal prisoner confined at FCI Coleman-

Medium, was sleeping on the lower bed of a triple-occupancy bunk, when he

awaked from a muscle spasm in his foot. Edwards sat up in an attempt to relieve

his foot pain; in doing so, he got his neck “wedged or trapped in between the

narrow space of the upper top ledge between the triple lower bunk bed.” R. at 8.

On April 16, 2012, Edwards filed an administrative grievance with the prison. He

complained the triple bunks did not allow enough space for him to sit up in bed

without injuring his neck and requested to be moved to a double bunk. The Bureau

of Prisons (“BOP”) denied Edwards’s grievance and subsequent appeal. In

denying his appeal, the BOP explained triple bunks had been incorporated at

Coleman to accommodate a significant increase in the inmate population.

      Edwards complained to prison medical staff about his neck pain; several

MRIs ultimately were taken. An MRI taken on June 5, 2012, showed negative

findings except for mild degenerative-disc disease. Another MRI on October 6,

2012, showed Edwards had (1) a diffuse disc bulge and mild bilateral-neural-




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foraminal stenosis 1 at C4-5; (2) a posterior-annular tear, diffuse disc bulge, and

mild right and moderate left foraminal stenosis at C5-6; and (3) a posterior annular

tear, diffuse-disc bulge, and mild right and moderate left foraminal stenosis at C6-

7.

       Edwards was examined by both prison and outside medical staff regarding

his neck pain on several occasions. On November 9, 2012, Dr. Robert Carver saw

Edwards at the prison. Dr. Carver’s notes from that visit summarized the findings

from Edwards’s October 2012 MRI, diagnosed mild right and mild-to-moderate

left neural-foraminal stenosis, and recommended pain management. On February

6, 2013, Edwards saw Dr. Stephen Pyles at the Florida Pain Clinic. Dr. Pyles

noted Edwards’s history of neck pain, reviewed the October 2012 MRI results, and

diagnosed Edwards with cervical-degenerative-disc disease with disc herniation at

C4-5, C5-6, and C6-7. Dr. Pyles recommended a series of epidural-steroid

injections.

       Dr. Carver saw Edwards on February 21, 2013, and noted Edwards’s x-rays

and CT scans showed mild cervical-degenerative-joint disease, mild arthritis, and

mild-to-moderate stenosis. Dr. Carver found Edwards did not meet the criteria for

the orthopedic-chronic-care clinic. On March 7, 2013, Dr. Carver again saw

Edwards. Dr. Carver’s notes show Edwards complained of neck pain and stiffness

       1
        Neural-foraminal stenosis refers to the narrowing of the neural foramen (nerve
passageways) in the spine, resulting in compression of the nerves that may cause neck pain.
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because of cramped conditions in his bunk bed. Dr. Carver noted he was unable to

give Edwards sleeping accommodations in the absence of objective MRI findings

and referenced his previous treatment notes. In addition, Dr. Carver recommended

Edwards get out of bed to stretch as needed, take warm showers, and use over-the-

counter pain relievers from the commissary as needed. He also provided Edwards

a handout on joint injections and noted Edwards needed to decide whether he

wished to proceed with the approved pain-management consultation. Edwards

ultimately did elect to proceed with Dr. Pyle’s proposed treatment and received a

series of steroid injections in his neck in April and May 2013.

      Subsequently, in July 2013, Edwards filed an administrative tort claim with

the prison and alleged Dr. Carver had failed to provide him ordinary care by

refusing to grant him a more suitable bunk assignment, which resulted in

aggravation of his neck injury. The BOP issued a final denial of Edwards’s

administrative claim in January 2014. Meanwhile, on December 14, 2013, a third

MRI on Edwards’s neck was taken; it showed similar findings to the October 2012

MRI and no significant interval changes in disc bulge, central canal, and neural-

foraminal stenosis.

      In July 2014, Edwards filed an FTCA complaint in federal district court. He

alleged the government, through its employees, was negligent in failing to provide

him with a suitable sleeping accommodation in view of his neck injury, which


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caused him additional harm. Specifically, he contended Dr. Carver had

misdiagnosed him based on an incorrect reading of his initial MRI, as

demonstrated by Dr. Pyles’s subsequent treatment. Edwards alleged that

misdiagnosis and subsequent failure of the prison to assign him to a more suitable

bunk aggravated his injuries. Edwards further alleged he suffered nerve damage

and permanent injury as a result of the government’s negligence and requested

damages in the amount of $500,000.

      The government filed a motion to dismiss or for summary judgment. The

government first argued the district judge lacked subject matter jurisdiction to

entertain Edwards’s claim, because it fell within the discretionary-function

exception to the FTCA. The government argued there was no directive requiring

the BOP to assign inmates to a specific bed type, and bed-assignment decisions are

grounded in considerations of public policy, such as inmate safety and medical

needs, security, and available resources of the facility. Alternatively, the

government argued it was entitled to summary judgment on the merits of

Edwards’s claim. In support of its motion, the government attached a copy of the

BOP-program statement regarding rated capacities for BOP facilities; it states the

inmate population will be managed and distributed based on capacity computation

formulas, security considerations, and institutional needs.




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      In response, Edwards asserted the government was not entitled to summary

judgment on the merits of his claim. He also argued the government’s assertion

his claim was barred by the discretionary-function exception lacked merit, because

his claim was a medical-negligence claim based on Dr. Carver’s misdiagnosis of

his neck injury; the duty of the prison to provide him suitable quarters was

inextricably intertwined with the medical standard of care.

      The district judge granted the government’s motion and dismissed

Edwards’s complaint. The judge agreed Edwards’s claim was a negligent-bunk-

bed assignment, which was barred by the discretionary-function exception, because

bunk-bed assignments involve policy choices regarding the allocation of prison

resources. Consequently, the judge concluded he lacked jurisdiction to entertain

Edwards’s claim.

      On appeal, Edwards contends the district judge erred in dismissing his

complaint, because the discretionary-function exception does not apply in his case.

He asserts the issue in this case is Dr. Carver’s misdiagnosis of his neck injury,

which prevented him from being moved to a different bunk and ultimately led to

the aggravation of his injury. Because a physician’s negligence does not fall

within the discretionary-function exception, Edwards argues the judge should not

have dismissed his complaint.




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                                  II. DISCUSSION

      We review de novo the dismissal of a complaint for lack of subject matter

jurisdiction. Motta ex rel. A.M. v. United States, 717 F.3d 840, 843 (11th Cir.

2013). The FTCA waives government sovereign immunity in tort suits for

negligent or wrongful acts or omissions of government employees, acting within

the scope of their employment. See 28 U.S.C. § 1346(b)(1); Monzon v. United

States, 253 F.3d 567, 570 (11th Cir. 2001). This waiver is limited by various

statutory exceptions, including the discretionary-function exception. 28 U.S.C.

§ 2680(a). Under that exception, the government does not waive immunity for

claims “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.” Id. If the discretionary-function exception applies,

the district judge lacks subject matter jurisdiction over the plaintiff’s FTCA claim.

U.S. Aviation Underwriters, Inc. v. United States, 562 F.3d 1297, 1299 (11th Cir.

2009).

      We apply a two-part test to determine whether the discretionary-function

exception applies. Id. First, we determine whether the challenged conduct is

discretionary in nature or involves an element of judgment or choice. Id. If a

federal statute, regulation, or policy dictates a particular course of action for an

employee to follow, the discretionary-function exception does not apply, because


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the employee has no choice but to follow the directive. Id. Second, if the

challenged conduct does involve the exercise of judgment, then we determine

whether it is the kind of judgment the discretionary-function exception was

designed to shield, one grounded in policy concerns. See id. “If the decision is

inherently one allowing discretion, we presume that the act was grounded in policy

whenever that discretion is employed.” Id. (citation and internal quotation marks

omitted). Additionally, our inquiry focuses on whether the challenged act is

“susceptible to policy analysis,” not whether the government employee actually

weighed policy considerations before taking a particular course of action. Cohen

v. United States, 151 F.3d 1338, 1341 (11th Cir. 1998) (citation and internal

quotation marks omitted).

      Although Edwards characterizes his claim as a negligent-misdiagnosis claim

based on Dr. Carver’s alleged misreading of his MRI results, the crux of his claim,

and the primary action of which he complains, is failure of the BOP to assign him

to a different bunk. Edwards provides no federal statute, regulation, or policy that

prohibits the use of triple bunks or requires prisoners with neck injuries be

assigned only to single or double bunks. The BOP retains discretion over how bed

space is assigned among inmates in its facilities. See U.S. Aviation Underwriters,

562 F.3d at 1299. Furthermore, the assignment of bed space is susceptible to

policy considerations, such as the facility’s available resources, the safety and


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medical needs of inmates, and the security of inmates and staff. Id.; Cohen, 151

F.3d at 1341.

      It does not matter whether the discretionary decision of the BOP not to move

Edwards out of a triple bunk may have been based on Dr. Carver’s alleged

misreading of Edwards’s MRI results, because the subjective motive for the

decision not to move Edwards is irrelevant to the discretionary-function analysis.

Cohen, 151 F.3d at 1341. Consequently, the decision of the BOP not to reassign

Edwards to a single or double bunk falls within the FTCA discretionary-function

exception. The district judge correctly determined he lacked subject matter

jurisdiction over Edwards’s claim. 28 U.S.C. § 2680(a); U.S. Aviation

Underwriters, 562 F.3d at 1299.

      AFFIRMED.




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