           Case: 12-13897   Date Filed: 05/29/2013   Page: 1 of 6


                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-13897
                         Non-Argument Calendar
                       ________________________

                    D.C. Docket No. 5:09-cv-00192-CAR



JEANNIE L. COSBY,

                                                     Plaintiff - Appellant,

                                  versus

UNITED STATES MARSHALS SERVICE,

                                                     Defendant,

UNITED STATES OF AMERICA,

                                                     Defendant - Appellee.

                       ________________________

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

                              (May 29, 2013)

Before HULL, JORDAN and KRAVITCH, Circuit Judges.

PER CURIAM:
              Case: 12-13897     Date Filed: 05/29/2013   Page: 2 of 6


      Jeannie Cosby, a prisoner proceeding pro se, appeals the district court’s

dismissal of her Federal Tort Claims Act (FTCA) suit for lack of subject matter

jurisdiction. After thorough review, we affirm.

      Cosby sued the United States under the FTCA, 28 U.S.C. § 1346(b)(1). As

relevant to this appeal, she alleged: (1) the United States Marshals Service

(USMS) negligently failed to provide appropriate medical care and did not follow

transfer procedures for inmates with severe medical conditions; and (2) the Bureau

of Prisons (BOP) negligently failed to follow a doctor’s recommended course of

treatment, causing the partial amputation of her right foot. The district court

ordered the parties to brief whether the discretionary function exception of the

FTCA divested the court of subject matter jurisdiction. Upon review, the court

found that the USMS’s and BOP’s decisions about Cosby’s medical care

“inherently involve[d] an element of choice and [were] grounded in several policy

considerations.” Accordingly, it concluded that the discretionary-function

exception applied and dismissed the case for lack of subject matter jurisdiction.

Cosby now appeals.

      We review de novo the district court’s dismissal for want of subject matter

jurisdiction. Ochran v. United States, 117 F.3d 495, 499 (11th Cir. 1997). “The

FTCA waives the United States government’s sovereign immunity from suit in

federal courts for the negligent actions of its employees.” Id. The discretionary



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function exception, however, exempts from this waiver claims “based upon the

exercise or performance or the failure to exercise or perform a discretionary

function or duty.” 28 U.S.C. § 2680(a).

      We apply a two-prong test to determine the applicability of the discretionary

function exception. Where both prongs are met, the exception applies and the

court lacks subject matter jurisdiction. See U.S. Aviation Underwriters, Inc. v.

United States, 562 F.3d 1297, 1299 (11th Cir. 2009). The first prong asks whether

the challenged acts are “discretionary in nature” – that is, if they “involve an

element of judgment or choice.” Gaubert v. United States, 499 U.S. 315, 322

(1991) (internal quotation marks omitted). “[T]he first prong of the exception is

satisfied unless ‘a federal statute, regulation or policy specifically prescribes a

course of action for an employee to follow.’” OSI, Inc. v. United States, 285 F.3d

947, 952 (11th Cir. 2002) (quoting Berkovitz v. United States, 486 U.S. 531, 534

(1988)). The second prong instructs that “the exception protects only

governmental actions and decisions based on considerations of public policy.”

Gaubert, 499 U.S. at 323 (internal quotation marks omitted). “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.” Id. at 325. If the decision could objectively be

made on policy grounds within the discretion afforded the decisionmaker, then “we



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presume that the act was grounded in policy whenever that discretion is

employed.” OSI, Inc., 285 F.3d at 951. And the agent need not actually have

weighed policy considerations to be protected by the exception. Id. at 950-51.

      Cosby argues that the USMS is liable under the FTCA for violating USMS

Directive for Prisoner Operations 9.4, which governs prisoner health. First, she

contends that the USMS negligently failed to provide adequate care for her foot

condition. Under that directive, “[t]he USMS will ensure that all USMS prisoners

receive medically necessary health care services,” including treatment for “limb-

threatening . . . conditions.” Directive 9.4, Prisoner Health Care, ¶ (C)(1).

Importantly, Cosby does not argue that she received no medical care, only that the

care she received was inadequate. Because Directive 9.4 does not “‘specifically

prescribe[] a course of action’” for USMS employees to follow when a prisoner

needs medical care, the decision about what specific type of care to provide is a

discretionary matter that satisfies the first prong of the exception. OSI, Inc., 285

F.3d at 952 (quoting Berkovitz, 486 U.S. at 534). The directive is also susceptible

to policy analysis because, in determining the precise course of medical treatment

to pursue, several policy considerations are relevant, including prison security, the

allocation of finite resources, and the logistics of prisoner transportation if transfer

to an off-site facility is an option. The second prong of the discretionary function




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exception is therefore satisfied, and the district court correctly concluded it lacked

subject matter jurisdiction to consider this issue. See Gaubert, 499 U.S. at 322-23.

       Next, Cosby asserts that the USMS was negligent in transferring her to

several facilities instead of allowing her to remain at one until her medical

treatment was complete. But again, the discretionary function exception bars her

claim. Directive 9.4 outlines “Medical Clearance Requirements for Prisoner

Movement or Transfer” and provides that “USM[S] district management will

ensure proper arrangements are made to provide continuity of medical care for

USMS prisoners.” Directive 9.4, Prisoner Health Care, ¶ 9(a)(4). Although the

Directive sets forth “Requirements” for the transfer of prisoners requiring medical

care, the “proper arrangements” to be made in each individual case are necessarily

left to the discretion of USMS employees. See id. And those decisions are

susceptible to policy analysis because USMS officials must consider which

facilities have space available and the placement of the prisoner in a facility that

provides an appropriate level of security. Thus, the discretionary function

exception applies and the district court correctly dismissed this claim. See

Gaubert, 499 U.S. at 322-23; cf. Cohen v. United States, 151 F.3d 1338, 1345

(11th Cir. 1998) (“[T]he BOP’s actions in classifying prisoners and placing them in

institutions involve conduct or decisions that fall within the discretionary function

exception . . . .”).



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      Finally, Cosby argues that the BOP is liable under the FTCA for violating 18

U.S.C. § 4042. That statute mandates that the BOP “provide for the safekeeping,

care and subsistence” of all persons in its custody. 18 U.S.C. § 4042(a)(2). We

have previously stated that “even if § 4042 imposes on the BOP a general duty of

care to safeguard prisoners, the BOP retains sufficient discretion in the means it

may use to fulfill that duty to trigger the discretionary function exception.” Cohen,

151 F.3d at 1342. Hence, the district court correctly dismissed this claim for lack

of subject matter jurisdiction.

      For the foregoing reasons, the district court’s dismissal of Cosby’s claims

for want of subject matter jurisdiction is

      AFFIRMED.




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