        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                Fifth Circuit

                                                                  FILED
                                                               August 23, 2010

                                 No. 09-41039                   Lyle W. Cayce
                                                                     Clerk

KELVIN ANDRE SPOTTS; BILLY AGUERO; MARCUS T. ARNOLD;
BAENA JOSE MENDOZA; LLOYD BATTLES; ET AL,

                                           Plaintiffs - Appellants
v.

UNITED STATES OF AMERICA,

                                           Defendant - Appellee



                Appeal from the United States District Court
                     for the Eastern District of Texas


                    ON PETITION FOR REHEARING
Before JONES, Chief Judge, and KING and HAYNES, Circuit Judges.
PER CURIAM:
      The plaintiffs–appellants petition under Federal Rule of Appellate
Procedure 40 for panel rehearing. In the challenged opinion, Spotts v. United
States, — F.3d —, 2010 WL 2991759, at *6 (5th Cir. 2010), we concluded, in
relevant part, that the plaintiffs had forfeited their argument that the alleged
Eighth Amendment violation precluded the operation of the discretionary
function exception of the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2680(a),
by failing to raise it before the district court. The plaintiffs contend that we
                                  No. 09-41039

erred in finding forfeiture. For the reasons discussed below, we reaffirm our
conclusion that forfeiture occurred and accordingly deny rehearing.
      The plaintiffs’ complaint alleged, as one of the predicate torts for its FTCA
claim, that the Government violated the Eighth Amendment—a “constitutional
tort.” There was no allegation that the alleged Eighth Amendment violation
precluded the operation of the discretionary function exception.
      The case was assigned to a magistrate judge for pretrial proceedings. The
Government filed a motion to dismiss before the magistrate judge, arguing, as
one basis for dismissal, that under the Supreme Court’s precedent in FDIC v.
Meyer, 510 U.S. 471 (1994), the alleged Eighth Amendment violation could not
function as a predicate tort under the FTCA because “the United States simply
has not rendered itself liable under [the FTCA] for constitutional tort claims.”
Id. at 478. The plaintiffs responded that their Eighth Amendment claim was in
fact a viable predicate tort because its elements overlapped exactly with the
elements of actionable state law torts. The plaintiffs went on to argue, without
explication, that “[t]his brings us full circle back to the discretionary judgment
exception,” and quoted Avery v. United States, 434 F. Supp. 937, 944 (D. Conn.
1977) (“If trespasses in violation of government regulations are not ‘discretionary
functions,’ then, a fortiori, trespasses in violation of constitutional guarantees
are not ‘discretionary functions.’”). This reference to the discretionary function
exception forms the basis for the plaintiffs’ motion for panel rehearing.
      In ruling on the motion to dismiss, the magistrate judge recommended
that, regardless of the merits of any of the predicate torts, the discretionary
function exception applied and required dismissal of the plaintiffs’ FTCA claims.
The plaintiffs filed objections to the magistrate judge’s report, raising two points
of error on this issue: that the operation of the discretionary function exception
was precluded by 1) the Safe Drinking Water Act, 42 U.S.C. §§ 300f et seq., and
2) the Bureau of Prisons Program Statements. They did not argue that the

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alleged Eighth Amendment violation precluded the operation of the
discretionary function exception.        The plaintiffs referenced the Eighth
Amendment only in a concluding paragraph, in which they argued that the
Government had, in fact, committed numerous tort violations, including a
violation of the Eighth Amendment. This emotional plea was not relevant to the
magistrate judge’s holding that, regardless of the merits of the predicate torts,
the discretionary function exception applied.
       To the extent that the plaintiffs’ response to the motion to dismiss before
the magistrate judge can be read as arguing that the alleged Eighth Amendment
violation should preclude the operation of the discretionary function exception,
they nevertheless forfeited this argument by failing subsequently to assert it in
their objections to the magistrate judge’s report. See Douglass v. United Servs.
Auto Ass’n, 79 F.3d 1415, 1420, 1428–29 (5th Cir. 1996) (“[A] party’s failure to
file   written   objections   to   the   proposed   findings,   conclusions,   and
recommendation in a magistrate judge’s report and recommendation . . . shall
bar that party . . . from attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the district court.” “Absent such a
rule . . . the court of appeals [would be forced] to consider claims that were never
reviewed by the district court.” (internal quotation marks omitted)). It was not
until their appeal to this court that the plaintiffs argued that the magistrate
judge erred in failing to conclude that the alleged Eighth Amendment violation
precluded the operation of the discretionary function exception. By that time,
the argument was forfeited.
       The plaintiffs did not timely raise their argument that the alleged Eighth
Amendment violation precluded the operation of the discretionary function
exception. Accordingly, we DENY the petition for panel rehearing.
       DENIED.



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