                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                    F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                                                                                   December 20, 2005
                                 FOR THE FIFTH CIRCUIT                          Charles R. Fulbruge III
                                                                                        Clerk


                                         No. 04-41672




       LUIS ALEJANDRO GARZA,

                                                           Plaintiff-Appellant,

                                             versus

       UNITED STATES OF AMERICA,

                                                           Defendant- Appellee.


                    Appeal from the United States District Court for
                             the Southern District of Texas
                              (USDC No. 102-CV-00154)
           _________________________________________________________


Before REAVLEY, DAVIS and WIENER, Circuit Judges.

REAVLEY, Circuit Judge:*

       Federal prisoner Luis Alejandro Garza appeals the district court’s dismissal of his

action brought under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. (“FTCA”) for

injuries sustained during a clash between rival gangs in a penitentiary recreation yard.



       *
        Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Garza alleged that the assault on him resulted from the guard’s failure to patrol the yard

and disperse congregated inmates during the open recreation period as required by her

post orders. The district court dismissed for lack of subject matter jurisdiction, holding

that the discretionary function exception to the FTCA, found in 28 U.S.C. § 2680(a),

shielded the Government from liability. Reviewing the record de novo,1 we reverse and

remand, for the following reasons:

       1.       The Supreme Court has set forth a two-part test to determine whether the

                discretionary function exception applies, thereby barring the claim. See

                Berkovitz v. United States, 486 U.S. 531, 536-37, 108 S.Ct. 1954, 1958-59

                (1988). For the exception to apply, the first prong requires that the

                challenged governmental action be the product of “judgment or choice.”

                United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 1273 (1991).

                Under this prong, we determine whether a statute, regulation, or policy

                mandates a specific course of action. Id. 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 discretionary and the first prong is satisfied.

                       The second prong requires that the judgment or choice be based on

                “considerations of public policy.” Id. at 323, 111 S.Ct. at 1274 (quoting



       1
            Buchanan v. United States, 915 F.2d 969, 970 (5th Cir. 1990).

                                               2
     Berkovitz, 486 U.S. at 537, 108 S.Ct. at 1959). Under this prong, we

     determine whether the judgment is “grounded in social, economic, or

     political policy.” Gaubert, 499 U.S. at 323, 111 S.Ct. at 1273 (quoting

     United States v. Varig Airlines, 467 U.S. 797, 813, 104 S.Ct. 2755, 2765).

     If the judgment of the governmental official is based on any of these policy

     considerations, then the discretionary function exemption applies and the

     claim is barred.

2.   There are two sets of governmental conduct challenged in this case. Garza

     generally alleges that the Government was obligated to keep him safe and

     free from harm while he remained incarcerated pursuant to 18 U.S.C. §

     4042 and the Eighth Amendment to the United States Constitution and that

     the Government breached this duty by failing to protect him from assault.

     We join our sister circuits in recognizing that neither section 4042's

     mandate to protect prisoners nor the Eighth Amendment’s prohibition

     against cruel and unusual punishment define a non-discretionary course of

     action specific enough to render the discretionary function exception

     inapplicable. See Montez v. United States, 359 F.3d 392, 396 (6th Cir.

     2004); Cohen v. United States, 151 F.3d 1338, 1342-43 (11th Cir. 1998);

     Calderon v. United States, 123 F.3d 947, 950 (7th Cir. 1997). Thus,

     because the Bureau of Prisons retains sufficient discretion in the means it

     may use to fulfill any duties imposed under these federal laws, the

                                    3
     exception is triggered and this claim was properly dismissed.

3.   Garza levels more specific claims against the conduct of the guard on duty,

     Deborah Romero, alleging that her failure to follow the Post Orders

     pertaining to patrolling, supervising, and prohibiting large groups of

     inmates to gather was a proximate cause of his injuries. The question,

     therefore, is whether the Post Orders specifically prescribe a course of

     action that Romero was bound to follow.

            Two instructions contained in the Post Orders are specifically at

     issue here:

            During closed movement, you will patrol the recreation
            yard. You will monitor and inspect all security devices
            and be alert for any physical security concerns or
            weakness. Report all discrepancies and signs of
            abnormal inmate activities immediately to the operations
            lieutenant and/or the special investigation supervisor.

                                    * * *

            As the Recreation Patrol Officer you are responsible for
            the supervision of inmates on the compound. Inmates
            should not be allowed to gather in large groups.

     The Post Orders also include the following language at the end of the

     detailed morning and evening shift instructions:

            NOTE: These post orders are issued as a guideline for
            the officers assigned to this post, and are not intended to
            describe in detail all of the officers [sic] responsibilities.
            Good judgement [sic] and initiative are expected in all
            situations.


                                      4
4.   With respect to the Post Order instruction to patrol the recreation yard, we find

     that the instruction prescribes a set course of action for the post guard on duty

     to follow to maintain order and safety during her shift. The instruction is

     straightforward and unambiguous. During the closed movement period (when

     inmates are restricted from moving about the institution), the post guard “will

     patrol the recreational yard.” The only period the guard may refrain from this

     action is during the brief open movement period (when inmates are allowed

     movement about the institution, including entering and leaving the recreation

     yard), during which other duties are prescribed. Romero had no discretion to

     avoid patrolling the recreation yard during closed movement. To do so would

     violate a specific directive of the penitentiary. Thus, the failure to adhere to

     this provision is not protected by the discretionary function exception.

            This conclusion is not in conflict with our holding in Buchanan v.

     United States, 915 F.2d 969 (5th Cir. 1990). In Buchanan, we held that the

     discretionary function exception shielded prison officials’ minute-to-minute

     decision making during a riot because such a situation clearly called for

     discretionary action that should not later be second-guessed by the courts. Id.

     at 972. We did not believe that Congress meant for judges, through hindsight,

     to second-guess the difficult decisions made by prison staff in the chaotic

     circumstances of a prisoner uprising. Id. In this case, Garza’s complaints do

     not rise from spontaneous decisions made during the emergent circumstances

                                     5
     of the gang assault but from Romero’s pre-assault deviation from a policy-

     making decision that had already been made and set forth in the Post Orders.

     That policy-making decision established a non-discretionary duty to patrol and

     supervise the rec yard.

5.   We do not find that the “Note” appended to the Post Orders infuses the “will

     patrol” instruction with the element of discretion necessary to invoke the

     discretionary function exception. The Post Orders are quite specific, providing

     an hour-by-hour and, in some cases, minute-by-minute “to do” list covering

     the post guard’s shift.    There are numerous specific and unambiguous

     directives in addition to the “will patrol” instruction. We interpret the Note’s

     admonition to use good judgment and initiative in following the Post Orders

     as enlarging the guards’ responsibility to do more than just check off the list

     when more may be required to achieve the penitentiary’s overall objectives of

     safety and order. When the Government sets forth extraordinarily detailed

     instructions (which it presumably expects employees to follow to the letter)

     that would otherwise clearly fall outside of the discretionary function

     exception, it should not be allowed to sweep these directives back under the

     shield by inserting a general “disclaimer.”         Permitting this kind of

     immunization clearly sidesteps the remedial objective of the FTCA by

     allowing the exception to swallow the rule.

6.   With respect to the Post Order instruction that inmates “should not be allowed

                                     6
to gather in large groups,” we find that the permissive wording and lack of

specific directive as to what constitutes a large group permits discretionary

choice sufficient to satisfy the first prong of the Berkovitz-Gaubert test. While

Garza claims that the guards normally broke up groups of five or more

inmates, this alleged “custom” does not negate the guard’s prerogative to

decide whether fewer or more inmates may constitute a “large group” in a

given circumstance.

       While the anti-congregating instruction permitted the post guard

discretion, this directive must still satisfy the second prong inquiry to be

afforded protection under the discretionary function exception. We conclude

that it does. The intent of the second-prong is clear: 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 courts would otherwise defer to such policy-making. Gaubert, 499 U.S.

at 323, 111 S.Ct. at 1273. The case-by-case decision to permit inmates to

congregate or not depends on the balance of public and prisoner safety with

the need to permit prisoner interaction and socialization in the furtherance of

fair treatment and rehabilitation. We are satisfied that this discretionary

decision-making involves the weighing of competing policy considerations that

the discretionary function exception protects from judicial scrutiny.

Baldassaro v. United States, 64 F.3d 206, 211 (5th Cir. 1995).

                                7
                    We note that our conclusion as to the anti-congregating directive does

             not relieve the Government of all potential responsibility with respect to

             permitting a large group of inmates to get out of control. To the extent that

             Garza is able to prove his allegations that Romero failed to patrol the yard as

             required, her failure to even notice the group, rather than her alleged failure to

             properly assess its size and potential danger, is the issue. That failure, along

             with the failure to immediately report any “abnormal inmate activities,” is

             actionable under the “will patrol” directive, which we have concluded falls

             outside of the discretionary function exception.

      7.     Garza also asserts that the district court improperly found that Romero had not

             failed to patrol the recreational yard as required. We agree. The district court

             granted the Government’s motion to dismiss for lack of subject matter

             jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) but denied

             the Government’s alternative Rule 12(b)(6) and summary judgment motions.

             The only issue raised in the three alternative motions was whether the

             discretionary function exception applied.

                    While the court was not limited to the complaints in making a 12(b)(1)

             jurisdictional determination as to the discretionary function exception and was

             free to review factual evidence,2 a finding on whether or not Romero patrolled


      2
         MDPhysicians & Assocs., Inc. v. State Bd. of Ins., 957 F.2d 178, 180-81 (5th
Cir. 1992).

                                             8
     the yard was not necessary to make this determination. The Government did

     not make a proper Rule 56 motion and the attempted summary judgment

     motion it did make was denied. Garza has not yet proved his factual

     allegations, but he is not required to do so on a motion to dismiss. To the

     extent that the district court’s analysis of the evidence constitutes a factual

     finding on whether or not Romero patrolled the yard, it was improper at this

     stage.

8.   We agree with the district court’s dismissal of Garza’s claims that the

     Government breached the duty to keep him safe and free from harm while he

     remained incarcerated pursuant to 18 U.S.C. § 4042 and the Eighth

     Amendment to the United States Constitution by failing to protect him from

     assault. We also agree with the district court’s determination that the anti-

     congregating directive falls within the discretionary function exception and

     therefore affirm the dismissal of any claim based solely on the failure to

     properly assess and break up the inmate group. Because the “will patrol”

     instruction prescribes a set course of action for the post guard, the

     discretionary function exception does not bar a cause of action based on

     Garza’s allegation that Romero failed to patrol the recreational yard and that

     such failure was a proximate cause of his injuries. Accordingly, we reverse

     the district court’s dismissal and remand to the district court for full factual

     determination on the merits.

                                     9
REVERSED AND REMANDED.




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