                                                                                   United States Court of Appeals
                                                                                            Fifth Circuit
                                                                                          F I L E D
                                                   In the                                  April 21, 2006
                          United States Court of Appeals                              Charles R. Fulbruge III
                                        for the Fifth Circuit                                 Clerk
                                             _______________

                                               m 05-60237
                                             Summary Calendar
                                             _______________



                                            REYDEL SANTOS,

                                                                Plaintiff-Appellant,

                                                  VERSUS

                                    UNITED STATES OF AMERICA,

                                                                Defendant-Appellee.


                              ____________________________________

                             Appeal From the United States District Court
                                for the Southern District of Mississippi
                                           m 5:03-CV-507
                             _____________________________________



Before SMITH, GARZA, and PRADO,                         and intentional infliction of emotional distress
  Circuit Judges.                                       (“i.i.e.d.”) brought under the Federal Tort
                                                        Claims Act (“FTCA”), 28 U.S.C. § 2671 et
PER CURIAM:*                                            seq. We affirm.

  Reydel Santos appeals the dismissal, for                                       I.
want of jurisdiction, of his suit for negligence           Santos was an inmate at the Federal Cor-
                                                        rectional Institution in Yazoo City, Mississippi
                                                        (“FCI Yazoo City”). During the time period
   *
     Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
relevant to this action,1 Bureau of Prisons                 placed and from where the officers could see
(“BOP”) regulations stated that “[a]ll areas of             whether inmates were smoking; and (6) keep-
Bureau of Prisons facilities and vehicles are no            ing windows in the dormitories sealed and in-
smoking areas unless specifically designated as             capable of being opened to admit fresh air.
a smoking area by the Warden as set forth in §              Santos contends that as a result of his expo-
551.163.” 28 C.F.R. § 551.162 (2002). The                   sure to ETS, he has experienced headaches,
regulations further provided that “[t]o the                 respiratoryproblems, sinus irritation, asthmatic
maximum extent practicable nonsmoking                       episodes, bronchitis, conjunctivitis, ear aches,
inmates shall be housed in nonsmoking living                increased stress, and sleeplessness. He asserts
quarters.” 28 C.F.R. § 551.163(c) (2002).                   that prison officials intentionally inflicted
Pursuant to these regulations, all buildings at             emotional distress by allowing him to be ex-
FCI Yazoo City, including inmate dormitories,               posed to ETS even though he had informed
were designated as smoke-free areas.                        them that his father was terminally ill with
                                                            emphysema and that he was scared of
   After exhausting available administrative                becoming similarly ill because of ETS. Santos
remedies with the Bureau of Prisons, Santos                 seeks $600,000 in damages on his negligence
sued, alleging that despite these anti-smoking              claims and $100,000 in damages for i.i.e.d.
regulations, he was exposed to environmental
tobacco smoke (“ETS”) in his housing unit at                   The government moved to dismiss for want
FCI Yazoo City as a result of prison officials’             of subject matter jurisdiction pursuant to FED.
negligence in (1) failing to enforce the no-                R. CIV. P. 12(b)(1), and in the alternative for
smoking regulations; (2) failing adequately to              summary judgment pursuant to FED. R. CIV. P.
staff the prison dormitories so there would be              56, arguing that the discretionary function ex-
enough supervision to enforce the smoking                   ception to the FTCA’s waiver of sovereign im-
ban; (3) failing appropriately to discipline                munity bars Santos’s claims. The district court
inmates caught smoking; (4) failing to provide              granted the motion and dismissed with preju-
a separate dormitory for nonsmoking inmates;                dice.
(5) removing the platforms on which correc-
tional officers’ desks had previously been                                        II.
                                                               In this circuit,

   1
      Santos began serving his term in June 2002                We review de novo a dismissal for want of
and filed his administrative complaint with the                subject matter jurisdiction. Lack of subject
Bureau of Prisons in November 2002. Because of                 matter jurisdiction may be found on any
the jurisdictional administrative exhaustion require-          one of the following bases: (1) the com-
ment, June-November 2002 is thus the only time                 plaint alone; (2) the complaint supple-
period covered by Santos’s suit. See 28 U.S.C. §               mented by undisputed facts evidenced in
2675(a) (stating that an action cannot be instituted           the record; or (3) the complaint supple-
upon a claim against the United States for money               mented by undisputed facts plus the court’s
damages for an injury caused by a negligent or                 resolution of disputed facts. In examining
wrongful act or omission of a government
                                                               a Rule 12(b)(1) motion, the district court is
employee “unless the claimant shall have first
                                                               empowered to consider matters of fact
presented the claim to the appropriate Federal
agency and his claim shall have been finally denied
                                                               which may be in dispute. Ultimately, a mo-
by the agency . . . .”).                                       tion to dismiss for lack of subject matter

                                                        2
   jurisdiction should be granted only if it ap-        bar a given suit, the alleged negligent acts or
   pears certain that the plaintiff cannot prove        omissions must involve “an element of judg-
   any set of facts in support of his claim that        ment or choice,” Gaubert v. United States,
   would entitle plaintiff to relief.                   499 U.S. 315, 322 (1991), and they must con-
                                                        stitute acts or decisions based on considera-
Johnson v. Aramco Servs. Co., 2006 WL                   tions of public policy, id. at 323. Utilizing the
45849, at *1 (5th Cir. Jan. 10, 2006) (unpub-           Gaubert guidelines, the district court deter-
lished) (internal citations and quotations              mined that each of Santos’s claims of negli-
omitted).                                               gence is barred by the discretionary function
                                                        exception.
   The United States is immune from suit un-
less it consents to be sued. United States v.               The court noted that no law or regulation
Testan, 424 U.S. 392, 399 (1976). “[T]he                mandates that separate housing be provided
terms of [the government’s] consent to be               for nonsmoking inmates. Indeed, the relevant
sued in any court define that court’s jurisdic-         regulation called for separate housing only “to
tion to entertain the suit.” Id. (internal cita-        the extent practicable,” 28 C.F.R. § 551.-
tions and quotations omitted). The Supreme              163(c) (2002), language that makes plain that
Court “has long decided that limitations and            the decision as to whether to provide separate
conditions upon which the Government con-               housing is left to the sound discretion of the
sents to be sued must be strictly observed and          prison administrators. Furthermore, the dis-
exceptions thereto are not to be implied.”              trict court stated that the decision whether to
Lehman v. Nakshian, 453 U.S. 156, 161                   provide separate housing for nonsmokers in-
(1981) (internal citations and quotations omit-         volves policy considerations such as economic
ted).                                                   feasibility and efficient resource allocation.

   Under the FTCA, the government has                       With regard to Santos’s claim about the
waived sovereign immunity with regard to                lack of enforcement of the no-smoking rules,
suits based on the alleged negligent acts and           the district court stated that BOP regulations
omissions of its employees. That waiver, how-           and FCI Yazoo City’s supplemental rules out-
ever, is limited. The United States has ar-             line disciplinary actions to be taken for viola-
ticulated certain exceptions to its consent to be       tions of the smoking ban, but noted that based
sued in this area. Particularly relevant to this        on United States v. Varig Airlines, 467 U.S.
action, the waiver of immunity does not extend          797, 809 (1984), “the extent to which the BOP
to “[a]ny claim based upon . . . [a government          chooses to apply its resources to enforce the
employee’s] failure to exercise or perform a            regulation against smoking . . . and the extent
discretionary function . . . .” 28 U.S.C. §             to which the BOP chooses to apply its
2680(a). If the government’s conduct falls              resources elsewhere . . . are discretionary
within the discretionary function exception to          choices made among many alternatives.” The
the FTCA, a suit complaining of that action             court further asserted that when an inmate is
must be dismissed for lack of subject matter            caught smoking, the “decision to implement
jurisdiction. See Buchanan v. United States,            disciplinary action is discretionary and gives
915 F.2d 969, 970 (5th Cir. 1990).                      the BOP room for judgment.” Id. (citing Cal-
                                                        deron v. United States, 123 F.3d 947, 949-50
   For the discretionary function exception to          (7th Cir. 1997)).

                                                    3
    Citing several cases that establish that in-         violate another’s constitutional rights.” The
ternal security is a matter normally left to the         court explained that the Eighth Amendment
discretion of prison officials, the district court       offers no help to Santos in this action because
asserted that Santos’s claim of negligence with          the government has not waived its immunity
regard to the removal of the raised platforms            with regard to constitutional torts. See FDIC
for correctional officers’ desks similarly fails         v. Meyer, 510 U.S. 471, 486 (1994). As we
under the discretionary function exception to            stated in Gibson v. Federal Bureau of Prisons,
the FTCA. Furthermore, the court noted that              121 Fed. Appx. 549, 551 (5th Cir. 2004) (per
the associate warden at FCI Yazoo City or-               curiam) (citing Correctional Servs. Corp. v.
dered the windows of the facility sealed be-             Malesko, 534 U.S. 61, 71-72 (2001)), an in-
cause doing so allowed the heating, ventila-             mate “may bring a[n] . . . action [under Bivens
tion, and air conditioning systems to function           v. Six Unknown Agents of the Federal Bureau
more efficiently. Because no law or regulation           of Narcotics, 40 U.S. 388 (1971),] against in-
mandates that inmates be capable of opening              dividual officers for a[n] alleged constitutional
their windows, the court concluded that                  violation, but he may not bring an action
whether to keep them permanently shut is a               against the United States, the BOP, or BOP
matter committed to the prison officials’ dis-           officers in their official capacities as such
cretion and that the officials were free to make         claims are barred by the doctrine of sovereign
the choice they did in consideration of the ef-          immunity.”
ficient operation of the facility.
                                                            We agree with the district court in all re-
    Finally, the district court stated that San-         spects. For the reasons stated in its thorough
tos’s claim for i.i.e.d. is barred by the discre-        Memorandum Opinion and Order entered on
tionary function exception because “[i]f a de-           March 7, 2005, the judgment is AFFIRMED.
fendant can show that the tortious conduct in-
volves a ‘discretionary function,’ a plaintiff
cannot maintain an FTCA claim, even if the
discretionary act constitutes an intentional tort
under § 2680(h).” Gasho v. United States, 39
F.3d 1420, 1435 (9th Cir. 1994) (internal cita-
tions omitted). Because Santos’s claim for
i.i.e.d. is predicated on the same acts and
omissions that formed the basis of his negli-
gence claims, the court determined that the
discretionary function exception to the FTCA
is likewise applicable to that claim.

   In an attempt to save his claims from the
discretionary function exception, Santos re-
news on appeal his argument that the acts of
which he complains not only constitute negli-
gence, but also violate the Eighth Amendment,
rendering the discretionary function exception
inapplicable because “no one has discretion to

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