                      United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                               _____________

                                No. 97-3410
                               _____________

Kristopher Dykstra,                    *
                                       *
             Appellant,                *
                                       *
      v.                               *
                                       *
United States Bureau of Prisons;       *
Richard Rison, Former Warden, MCFP; * Appeal from the United States
Robin Durbin, Case Manager, MCFP; * District Court for the
Max Pulley, Senior Officer             * Western District of Missouri.
Specialist, MCFP; Kevin Houck,         *
Correction Supervisor, MCFP; William *
Bennett, Counselor, MCFP Springfield; *
Unknown Guard, on Unit 10-F, MCFP, *
Springfield,                           *
                                       *
             Appellees.                *
                                 _____________

                             Submitted: January 22, 1998
                                 Filed: April 6, 1998
                              _____________

Before McMILLIAN, FLOYD R. GIBSON, and BOWMAN, Circuit Judges.
                          _____________

BOWMAN, Circuit Judge.
        Kristopher Dykstra brought a Bivens1 action against the United States Bureau
of Prisons alleging that prison officials violated his rights under the Eighth Amendment.
He also sued under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b) (1994),
claiming that prison officials 1) were negligent in failing to protect him from an assault,
and 2) were negligent in treating his post-traumatic stress disorder (PTSD). The
District Court dismissed Dykstra's Eighth Amendment claim. Next, the court dismissed
Dykstra's claim that prison officials were negligent in failing to protect him from an
assault, concluding that the discretionary function exception to the FTCA, 28 U.S.C.
§ 2680(a) (1994), barred the claim. The case proceeded to a bench trial on the
remaining claim that officials at six correctional facilities to which Dykstra had been
sent were negligent in treating his PTSD. The District Court found that officials in one
facility were negligent, but that Dykstra was contributorily negligent, thus precluding
any recovery. The court found that none of the other correctional facilities was
negligent.

        Dykstra appeals, arguing that the District Court erred in dismissing under the
discretionary function exception his FTCA claim that prison officials were negligent in
failing to protect him from an assault. He also asserts that the District Court's findings
regarding his PTSD treatment are clearly erroneous.2 We affirm.

                                            I.

      Dykstra pleaded guilty to bank robbery. Prior to his sentencing, Dykstra was
sent to the United States Medical Center for Federal Prisoners (USMCFP) in
Springfield, Missouri, for a mental evaluation. William Bennett, a counselor,


         1
       Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388 (1971).
         2
         Dykstra does not appeal the District Court's dismissal of his Eighth Amendment
claim.

                                           -2-
performed Dykstra's intake interview. Dykstra was twenty-one at the time but
purportedly looked somewhat younger. Dykstra claims that Bennett never mentioned
that Dykstra's youthful appearance might make him vulnerable to attack if he were not
placed in protective custody.3 Bennett informed Dykstra that, because Dykstra had not
yet been sentenced, he could request protective custody. Bennett, however, told
Dykstra that he could instead work, which would help pass the time. To be eligible for
work, Dykstra signed a waiver, wherein he waived his option to be placed in protective
custody. The waiver indicated that it was revocable at any time. Several days after he
was admitted to his housing unit, Dykstra claims he told a correctional officer that
another inmate had been staring at him.4 Dykstra did not identify the other inmate to
the correctional officer. The officer told Dykstra to let him know if there was any
problem. Later, inmate Robert Jackson sexually assaulted Dykstra. As a result of the
sexual assault, Dykstra developed PTSD.

        After the assault, Dykstra was transferred several times. From USMCFP,
officials transferred Dykstra to a correctional facility in Talladega, Alabama. Upon his
arrival, Dykstra met once with a psychologist. Despite their knowledge of the assault
that had taken place at USMCFP, Talladega prison officials did not follow up with
Dykstra after the initial psychologist's meeting to inquire whether Dykstra wanted to
continue therapy. On the other hand, Dykstra exhibited no PTSD symptoms and did
not ask for therapy. Dykstra began suffering from severe kidney problems and was
transferred to a correctional facility in Carville, Louisiana.




      3
       The District Court noted that Dykstra's file indicated Bennett did explain to
Dykstra that other inmates might try to take advantage of his youthful appearance and
that he should consider being housed in protective custody. See District Ct. Order
Nov. 1, 1996 at 3. For purposes of this appeal, we assume Bennett did not provide
Dykstra with this information.
      4
          Dykstra has yet to identify the correctional officer to whom he spoke.
                                           -3-
      At Carville, Dykstra saw a psychologist at intake and indicated that he wanted
treatment. Carville officials encouraged Dykstra to return to psychology services as
needed for counseling, but Dykstra never sought counseling at that facility. Dykstra
continued to experience kidney problems. From Carville, Dykstra was sent to a
medical center for federal prisoners in Rochester, Minnesota.

      At Rochester, Dykstra exhibited symptoms of PTSD and asked to see a
psychologist. His request was honored within two days. Dykstra began psychotherapy
sessions with a psychologist and was seen twice by a psychiatrist. After his kidney
condition improved, he was transferred to a prison camp in Marion, Illinois.

        At Marion, Dykstra was provided the opportunity to meet regularly with a
counseling intern. Dykstra met with the intern on a weekly basis, but discontinued the
sessions because he claims he found them unhelpful. Dykstra testified that he recalled
requesting medication from the prison psychologist, but that the doctor never responded
to his request. While at Marion, Dykstra left the prison camp for a rendezvous with his
girlfriend. They met in a motel room located in a nearby town, and Dykstra returned
to camp a few hours later. Because of this misconduct, Dykstra was housed at the
Williamson County Jail for a brief period and then transferred to a correctional facility
in Sandstone, Minnesota.

        At Sandstone, Dykstra was seen multiple times, both by psychiatrists and
psychologists. The doctors monitored Dykstra's medication and consulted with him
periodically. During this time, Dykstra was getting into disciplinary trouble and, as a
result, was again transferred, this time to a correctional facility in Pekin, Illinois.

      Upon Dykstra's arrival at Pekin, the psychology department did an initial
screening and discontinued his medication. The medication was restarted several
weeks later. Thereafter, Dykstra complained about his medications. Each request for
a change in medication was honored by the prison psychologist.

                                          -4-
                                           II.

       Dykstra first contends that the District Court erred in dismissing his claim that
prison officials at USMCFP were negligent in failing to protect Dykstra from a sexual
assault. We review de novo a district court's grant of a motion to dismiss under the
discretionary function exception to the FTCA. See Tracor/MBA, Inc. v. United States,
933 F.2d 663, 665 (8th Cir. 1991).

       We begin with the fundamental rule that the United States cannot be sued
without a waiver of its sovereign immunity. See United States v. Orleans, 425 U.S.
807, 814 (1976). The FTCA waives sovereign immunity and allows suits against the
United States for personal injuries caused by governmental employees acting within the
scope of their employment. See 28 U.S.C. § 1346(b). The FTCA does not waive
immunity, however, when a claim is "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." Id. § 2680(a). This discretionary function exception to the FTCA "marks the
boundary between Congress' willingness to impose tort liability upon the United States
and its desire to protect certain governmental activities from exposure to suit by private
individuals." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig
Airlines), 467 U.S. 797, 808 (1984). To the extent an alleged act falls within the
discretionary function exception, a court lacks subject matter jurisdiction. See Jurzec
v. American Motors Corp., 856 F.2d 1116, 1118 (8th Cir. 1988).

       The Supreme Court has developed a two-step test to determine whether the
discretionary function exception applies, thereby barring the claim. See Berkovitz v.
United States, 486 U.S. 531, 536-37 (1988). For the exception to apply, the first step
requires that the challenged governmental action be the product of "judgment or
choice." United States v. Gaubert, 499 U.S. 315, 322 (1991) (quoting Berkovitz, 486
U.S. at 536). Under this step, we must determine whether a statute, regulation, or

                                           -5-
policy mandates a specific course of action. If such a mandate exists, the discretionary
function exception does not apply and the claim may move forward. When no mandate
exists, however, the governmental action is considered the product of judgment or
choice (i.e., discretionary), and the first step is satisfied. The second step requires that
the judgment or choice be based on "considerations of public policy." Id. at 323
(quoting Berkovitz, 486 U.S. at 537). Under this step, we determine whether the
judgment is grounded in social, economic, or political policy. If the judgment of the
governmental official is based on any of these policy considerations, then the
discretionary function exception applies and the claim is barred.

      Dykstra bases his negligence claim on two decisions made by prison officials.
The first was counselor Bennett's decision not to inform Dykstra that his youthful
appearance placed him at risk if he were not placed in protective custody. The second
was the correctional officer's decision not to place Dykstra in protective custody or to
take any other action when Dykstra told the officer a fellow inmate had been staring
at him. We examine each in turn.

       With respect to counselor Bennett's decision, Dykstra claims that prison
regulations require prison personnel to obtain an informed waiver of protective custody.
Dykstra argues that, because a specific course of action was mandated, Bennett was
in violation when he failed to warn Dykstra that his youthful appearance made him
vulnerable to attack. Significantly, however, Dykstra points to no regulation that
required a warning by Bennett in this situation. No regulatory mandate exists, so we
move to the second step.

       When established policy allows governmental agents to exercise discretion, "it
must be presumed that the agent's acts are grounded in policy when exercising that
discretion." Gaubert, 499 U.S. at 324. Dykstra must rebut this presumption. Dykstra
has failed, however, to allege any facts establishing that Bennett's decision was not
grounded in policy considerations. We therefore presume the decision was based on

                                            -6-
public policy considerations. The discretionary function exception to the FTCA applies
to Bennett's decision to not warn Dykstra.

       With respect to the correctional officer's decision to take no action on the basis
of Dykstra's statement that another inmate had been staring at him, there is no
regulation that mandates a specific course of action in such circumstances. Dykstra did
not specifically name an inmate, nor did he mention any threats, so there was nothing
to cause the officer to take any particular action, and the applicable regulations grant
to the prison officials broad discretion in determining whether to place an inmate in
protective custody:

      The Warden may . . . place an inmate in [protective custody] when the
      inmate's continued presence in the general population poses a serious
      threat to life, property, self, staff, other inmates or to the security or
      orderly running of the institution and when the inmate . . . [r]equests
      admission to [protective custody] for the inmate's own protection, or staff
      determines that admission to . . . [protective custody] is necessary for the
      inmate's own protection (see § 541.23).

28 C.F.R. § 541.22(a) (1997). Section 541.23 provides that "[s]taff may consider . . .
as protection cases . . . [i]nmates about whom staff has good reason to believe the
inmate is in serious danger of bodily harm." Id. § 541.23(a). There is no mandatory
language in the regulations. To the contrary, the use of the term "may" in the
regulations imports discretion. See Calderon v. United States, 123 F.3d 947, 949-50
(7th Cir. 1997) (holding that discretionary function exception applied where prisoner
had told at least four officers about another inmate's overt threats).

        Because the regulations expressly grant discretion, we presume the prison
officials' actions are grounded in public policy. See Gaubert, 499 U.S. at 324. Dykstra
asserts, "There is no claim by the United States that a policy decision was made not to
respond to a threat." Appellant's Brief at 20. But it is Dykstra, not the United States,


                                          -7-
who must assert facts that show the decision was not based on policy considerations;
he has not done so, and probably could not succeed in doing so in any event. Prison
officials supervise inmates based upon security levels, available resources,
classification of inmates, and other factors. These factors upon which prison officials
base such decisions are inherently grounded in social, political, and economic policy.
We have no difficulty in concluding that the discretionary function exception applies
to the correctional officer's decision not to place Dykstra in protective custody or to
take other protective action.

       We now turn to Dykstra's final issue on appeal. The District Court entered
judgment in favor of the government on Dykstra's claim that prison officials negligently
treated his PTSD. The court found that the Talladega facility was negligent in treating
Dykstra's PTSD, but that Dykstra was contributorily negligent, thus barring recovery
under Alabama law.5 The court found none of the other facilities was negligent. We
review a district court's findings of negligence vel non under the clearly erroneous
standard. See Davis v. Liberty Mut. Ins. Co., 55 F.3d 1365, 1367 (8th Cir. 1995). A
finding is clearly erroneous if it is not supported by substantial evidence. See Norwest
Capital Management & Trust Co. v. United States, 828 F.2d 1330, 1335 (8th Cir.
1987).

        There was substantial evidence for the District Court to find as it did.
Regarding Dykstra's treatment at Talladega, the court found both parties to be
negligent. Despite being aware of the assault Dykstra had suffered, prison officials did
not follow up with him or otherwise advise him of the availability of psychiatric

      5
        Under the FTCA, the applicable law is that of the state where the injury
occurred. See 28 U.S.C. § 1346(b) (1994). Because the Talladega facility is located
in Alabama, we apply Alabama contributory negligence rules. Alabama adheres to the
traditional rule of contributory negligence whereby any negligence on the part of the
plaintiff bars recovery. See Brooks v. Winn-Dixie, Inc., No. 2961117, 1997 WL
707088, at *4-5 (Ala. Civ. App. Nov. 14, 1997).

                                          -8-
services. On the other hand, Dykstra did not request treatment or even complain to
prison officials about his PTSD. Neither of the District Court's findings is clearly
erroneous.

       The court's finding that none of the other correctional facilities was negligent in
treating Dykstra's PTSD was also supported by substantial evidence. At Carville,
Dykstra did not complain about any PTSD symptoms, nor did he receive any treatment.
But unlike officials at the Talladega facility, prison officials at Carville encouraged
Dykstra to seek psychological help. At Rochester, Dykstra requested psychological
services for the first time. Within two days, Dykstra met with a psychologist and
continued therapy sessions until his departure from Rochester. At Marion, Dykstra
received counseling from a psychological intern until Dykstra himself terminated the
sessions. At Sandstone, an intake evaluation noted that Dykstra's symptoms were not
acute and that there was no reason to treat him on an emergency basis. Dykstra was
seen at least seven times while at Sandstone and his medications were adjusted there.
At Pekin, officials discontinued Dykstra's medications but restarted them at his request
without delay. Pekin officials gave Dykstra a variety of medications, but Dykstra
decided they were unhelpful and discontinued their use. The District Court's finding
that none of these correctional facilities was negligent is not clearly erroneous.

                                           III.

       We hold that the discretionary function exception to the FTCA bars Dykstra's
claim that prison officials were negligent in failing to protect him from the assault and
therefore affirm the District Court's dismissal of that claim. We also affirm the District
Court's judgment in favor of the United States on Dykstra's claim that prison officials
were negligent in treating his PTSD.




                                           -9-
A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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