        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206            2    Montez v. United States                    No. 02-6303
     ELECTRONIC CITATION: 2004 FED App. 0061P (6th Cir.)
                 File Name: 04a0061p.06                    Lexington, Kentucky, for Appellee. ON BRIEF: T. Bruce
                                                           Simpson, Jr., ANGGELIS & GORDON, Lexington,
                                                           Kentucky, for Appellant. Thomas Lee Gentry, Mason Moore
UNITED STATES COURT OF APPEALS                             Kessinger, ASSISTANT UNITED STATES ATTORNEYS,
                                                           Lexington, Kentucky, for Appellee.
               FOR THE SIXTH CIRCUIT
                 _________________                           GILMAN, J., delivered the opinion of the court, in which
                                                           NELSON, J., joined. ROGERS, J. (p. 13), delivered a
 MARION MONTEZ ,                  X                        separate concurring opinion.
 Administratrix of the Estate of   -
                                   -                                          _________________
 Tracy Hearlson,
                                   -   No. 02-6303
           Plaintiff-Appellant,    -                                              OPINION
                                    >                                         _________________
                                   ,
            v.                     -                         RONALD LEE GILMAN, Circuit Judge. A corrections
                                   -                       officer at the Federal Medical Center prison in Lexington,
 UNITED STATES OF AMERICA , -                              Kentucky (FMC Lexington), found inmate Tracy Hearlson
           Defendant-Appellee. -                           dead in a housing unit of the prison during the early morning
                                   -                       hours of September 14, 1998. Hearlson had been beaten to
                                  N                        death with a fire extinguisher. No alarm sounded, and prison
      Appeal from the United States District Court         officials were unaware of the assault until the corrections
    for the Eastern District of Kentucky at Lexington.     officer discovered Hearlson’s body. Two of Hearlson’s
     No. 99-00348—Joseph M. Hood, District Judge.          fellow inmates were subsequently convicted of his murder.
                                                           Marion Montez, who is both Hearlson’s mother and the
                Argued: February 5, 2004                   administratrix of his estate, brought suit against the United
                                                           States pursuant to the Federal Tort Claims Act (FTCA). Her
          Decided and Filed: February 26, 2004             complaint alleged that the government was responsible for
                                                           Hearlson’s death because prison officials had negligently
   Before: NELSON, GILMAN, and ROGERS, Circuit             failed to adequately protect him. The district court granted
                     Judges.                               the government’s motion to dismiss on the ground that the
                                                           prison officials’ decisions regarding Hearlson’s safety fell
                   _________________                       within the discretionary function exception to the FTCA. For
                                                           the reasons set forth below, we AFFIRM the judgment of the
                        COUNSEL                            district court.
ARGUED:      T. Bruce Simpson, Jr., ANGGELIS &
GORDON, Lexington, Kentucky, for Appellant. Thomas Lee
Gentry, ASSISTANT UNITED STATES ATTORNEY,

                             1
No. 02-6303                    Montez v. United States      3    4    Montez v. United States                      No. 02-6303

                   I. BACKGROUND                                 specific, imminent threat to Hearlson. In fact, Hearlson had
                                                                 concurred in the decision by prison officials to release him
  Montez’s complaint alleges in pertinent part that              back into Commonwealth South, a housing unit at FMC
                                                                 Lexington designed for inmates with mental health problems
  (1) Hearlson was an inmate at FMC Lexington who was            or other special needs, approximately one month before the
killed on or about September 14, 1999;                           fatal assault.
  (2) The prison warden, other officials, and employees of         After Montez filed the complaint, the United States filed a
FMC Lexington were acting within the scope of their              motion to dismiss or, in the alternative, for summary
employment at all relevant times;                                judgment. The district court granted the motion, reasoning
                                                                 that “the decision as to what level of protection within the
  (3) Hearlson’s murder was the “direct and proximate result     institution to be afforded Hearlson was a discretionary act by
of the negligence” of these persons;                             Bureau of Prisons officials not subject to the FTCA.” This
                                                                 timely appeal followed.
  (4) Because Hearlson was “in protective lock-up prior to
the attack, employees and officials of the Defendant knew or                            II. ANALYSIS
should have known that Tracy Hearlson was in imminent
danger of likely injury of substantial certainty and               The only issue in this case is a purely legal one: Did the
consciously and knowingly failed to afford him reasonable        district court properly grant the motion to dismiss on the basis
protection.”                                                     that the decisions of prison officials regarding Tracy
                                                                 Hearlson’s safety fall within the discretionary function
  (5) Prison officials placed Hearlson in a facility that they   exception to the FTCA, thereby depriving the district court of
“knew or reasonably should have known was so inadequate          subject matter jurisdiction? “This court reviews de novo a
that Tracy Hearlson could not be adequately protected from       district court's grant of a motion to dismiss on the basis of
the risk of assaults by fellow prisoners.”                       subject-matter jurisdiction.” Pieper v. Am. Arbitration Ass’n,
                                                                 Inc., 336 F.3d 458, 460 (6th Cir. 2003).
  (6) The officials “were required to use ordinary care in
determining whether a federal prisoner should be kept in a         Analysis of this issue starts with the fundamental principle
particular facility and in determining where within that         that the United States government may not be sued without its
particular facility the prisoner should be kept, and the         consent. United States v. Orleans, 425 U.S. 807, 814 (1976)
Governmental functions performed in these areas are not          (observing that “the United States can be sued only to the
‘discretionary functions’ with[] respect to which the United     extent that it has waived its immunity”). Pursuant to the
States is immune from Tort Liability.”                           FTCA, the United States has consented, subject to certain
                                                                 exceptions, to suit for damages for personal injuries caused by
   Hearlson was beaten to death with a fire extinguisher in an   the negligence of government employees acting within the
unsupervised area of FMC Lexington where inmates watch           course and scope of their employment. See 28 U.S.C.
television. No prison official was aware of the assault. But     §§ 1346(b), 2671-2680.
the prison was aware of Hearlson’s prior altercations with
other inmates, and had previously put Hearlson in protective
lock-up. No official, however, had knowledge of any
No. 02-6303                     Montez v. United States       5    6      Montez v. United States                    No. 02-6303

  A significant limitation on the scope of the FTCA’s waiver       contends that both a statute (18 U.S.C. § 4042(a)) and a
of sovereign immunity is the discretionary function exception,     federal regulation (28 C.F.R. § 541.10) mandated a course of
28 U.S.C. § 2680(a), which provides that the United States         conduct for prison officials to follow in making decisions
has not consented to suit where the claim is “based upon the       regarding Hearlson’s safety.
exercise or performance or the failure to exercise or perform
a discretionary function or duty on the part of a federal              The statute provides in pertinent part as follows:
agency or an employee of the Government, whether or not the
discretion involved be abused.” Because the United States                The Bureau of Prisons, under the direction of the
has not waived its sovereign immunity with respect to                    Attorney General, shall—
discretionary functions, courts lack subject matter jurisdiction           (1) have charge of the management and
over acts falling within the discretionary function exception.             regulation of all Federal penal and correctional
Rosebush v. United States, 119 F.3d 438, 440 (6th Cir. 1997).              institutions;
                                                                           (2) provide suitable quarters and provide for the
  The United States Supreme Court has formulated a two-part                safekeeping, care, and subsistence of all persons
test to determine whether a governmental act falls within the              charged with or convicted of offenses against
exception. First, a court must ask whether the act involves                the United States, or held as witnesses or
“an element of judgment or choice.” United States v.                       otherwise;
Gaubert, 499 U.S. 315, 322 (1991) (quotation marks omitted)                (3) provide for the protection, instruction, and
(holding that federal regulators’ supervision of a savings and             discipline of all persons charged with or
loan association’s day-to-day operations was within the                    convicted of offenses against the United States.
discretionary function exception). If the answer to that
question is “yes,” then the court must ask “whether that           18 U.S.C. § 4042(a) (emphasis added).
judgment is of the kind that the discretionary function
exception was designed to shield.” Id. at 322-23 (quotation           The statute imposes a mandatory duty upon the Bureau of
marks omitted). Each of these elements is discussed in turn        Prisons (BOP) through the use of the word “shall.” Calderon
below.                                                             v. United States, 123 F.3d 947, 950 (7th Cir. 1997) (holding
                                                                   that § 4042(a) “sets forth a mandatory duty of care”). But the
  A. Did the prison officials’ decisions regarding                 duty imposed by § 4042(a) is of a general nature, broadly
     Hearlson’s safety involve an element of                       requiring that the BOP “provide for the safekeeping” and
     judgment or choice?                                           “provide for the protection” of federal inmates. BOP officials
                                                                   are given no guidance, and thus have discretion, in deciding
  The Supreme Court has stated that “the discretionary             how to accomplish these objectives.
function exception will not apply when a federal statute,
regulation, or policy specifically prescribes a course of action      The two other circuits that have previously considered this
for an employee to follow.” Berkovitz v. United States, 486        issue have both decided that § 4042(a) does not specifically
U.S. 531, 536 (1988) (holding that the discretionary function      prescribe a course of action for prison officials to follow. See
exception did not apply where the complaint alleged that the       Cohen v. United States, 151 F.3d 1338, 1342 (11th Cir. 1998)
FDA failed to follow a prescribed course of conduct when           (“[E]ven if § 4042 imposes on the BOP a general duty of care
approving a polio vaccine). In the present case, Montez            to safeguard prisoners, the BOP retains sufficient discretion
No. 02-6303                     Montez v. United States        7   8      Montez v. United States                    No. 02-6303

in the means it may use to fulfill that duty to trigger the          In addition to the regulation cited by Montez, the United
discretionary function exception.”); Calderon, 123 F.3d at         States cites two additional regulations that govern the actions
950 (“While it is true that this statute sets forth a mandatory    of prison officials. One states that an inmate “may” be
duty of care, it does not, however, direct the manner by which     removed from the general population for safety reasons.
the BOP must fulfill this duty. The statute sets forth no          28 C.F.R. § 541.22(a). Another provides that BOP staff “may
particular conduct the BOP personnel should engage in or           consider . . . as protection cases” inmates who are in danger.
avoid while attempting to fulfill their duty to protect            28 C.F.R. § 541.23(a). The use of the word “may” in these
inmates.”). We believe that Cohen and Calderon are                 regulations, rather than “shall,” demonstrates that their
persuasive on this point, and we therefore adopt their             implementation is left to the discretion of BOP officials. See
conclusion.                                                        Dykstra v. U.S. Bureau of Prisons, 140 F.3d 791, 796 (8th
                                                                   Cir. 1998) (holding that “the use of the term ‘may’ in the
  But Montez also contends that BOP officials lack discretion      regulations imports discretion”); see also Dorris v. Absher,
because of federal regulation 28 C.F.R. § 541.10, which            179 F.3d 420, 429 (6th Cir. 1999) (“The use of the term
provides in pertinent part as follows:                             ‘may’ in a statute is generally construed as permissive rather
                                                                   than as mandatory.”). Because these regulations contain no
  (b) The following general principles shall apply in every        mandatory language, we agree with Dykstra’s conclusion that
  disciplinary action taken:                                       they do not impose a mandatory, nondiscretionary duty upon
  ...                                                              BOP officials.
  (2) Staff shall take disciplinary action at such times and
  to the degree necessary to regulate an inmate's behavior           In sum, the relevant statute and regulations allowed BOP
  within Bureau rules and institution guidelines and to            officials to exercise judgment when making decisions
  promote a safe and orderly institution environment.              regarding Hearlson’s safety. Under the Supreme Court’s two-
                                                                   factor approach, we must next consider “whether that
(Emphasis added.)                                                  judgment is of the kind that the discretionary function
                                                                   exception was designed to shield.” Gaubert, 499 U.S. at 322-
  This regulation, much like 18 U.S.C. § 4042(a), sets forth       23 (quotation marks omitted).
the general objectives of “regulat[ing] inmate behavior” and
“promot[ing] a safe and orderly institution environment,” but          B. Were the prison officials’ decisions regarding
does not mandate any specific course of action on the part of             Hearlson’s safety of the kind that the
BOP officials. Moreover, the phrases “at such times” and “to              discretionary function exception was meant to
the degree necessary” clearly allow prison officials discretion           shield?
to decide when disciplinary action is necessary.
                                                                     Where the relevant governmental policy allows discretion,
   In Calderon, the Seventh Circuit held that § 541.10 creates     the Supreme Court has explicitly stated what a plaintiff must
no mandatory, nondiscretionary duty on the part of BOP             do to survive a motion to dismiss:
officials. 123 F.3d at 949. Calderon’s conclusion is
consistent with the language of the regulation, and we                 When established governmental policy, as expressed or
likewise conclude that § 541.10 does not prescribe a specific          implied by statute, regulation, or agency guidelines,
course of action that BOP officials must follow.                       allows a Government agent to exercise discretion, it must
No. 02-6303                      Montez v. United States       9    10   Montez v. United States                      No. 02-6303

  be presumed that the agent’s acts are grounded in policy          affirmed the district court’s decision to grant the BOP’s
  when exercising that discretion. For a complaint to               motion to dismiss.
  survive a motion to dismiss, it must allege facts which
  would support a finding that the challenged actions are              As a general principle, a complaint that alleges the
  not the kind of conduct that can be said to be grounded in        existence of a specific and immediate threat against an inmate
  the policy of the regulatory regime. The focus of the             is more likely to survive a motion to dismiss than a complaint
  inquiry is not on the agent’s subjective intent in                that either alleges a nonspecific threat or provides only
  exercising the discretion conferred by statute or                 conclusory statements regarding the existence of a threat.
  regulation, but on the nature of the actions taken and on         This follows from the fact that decisions by prison officials to
  whether they are susceptible to policy analysis.                  ignore specific and immediate threats against inmates are less
                                                                    likely to be the type of decision that can be said to be
Id. at 324-25. In the present case, therefore, we must decide       grounded in the underlying policy of the BOP, which requires
whether Montez’s complaint alleges facts sufficient to rebut        prison officials to provide for the safekeeping and protection
the presumption that the decisions by the prison officials          of inmates. See 18 U.S.C. § 4042(a). In light of this general
regarding Hearlson’s safety were “of the kind that the              principle, we regard Dykstra as a close case because the
discretionary function exception was designed to shield.”           prison officials apparently knew that Dykstra was at a higher
Gaubert, 499 U.S. at 322-23 (quotation marks omitted) (the          risk of sexual assault and that the inmate who eventually
Gaubert presumption).                                               attacked Dykstra had been staring at him. 140 F.3d at 795.
   Two other circuits have acknowledged the Gaubert                    We have been unable to find any post-Gaubert case that
presumption in affirming the grant of motions to dismiss in         illustrates a situation where an injured prisoner’s complaint is
cases brought by injured prisoners. In Calderon, the Seventh        unquestionably adequate to survive a motion to dismiss, but
Circuit affirmed the grant of a motion to dismiss because the       one useful factual situation comes from the Supreme Court’s
plaintiff inmate had failed to allege in his complaint facts that   decision in United States v. Muniz, 374 U.S. 150, 152 (1963),
“would support a finding that the BOP’s [decision] not to take      where a prison guard stood by while an inmate was chased
disciplinary action against [the inmate who later attacked the      and severely beaten by 12 other inmates. Although the Muniz
plaintiff] was based on grounds other than considerations of        Court did not decide whether the discretionary function
public policy.” 123 F.3d at 950. Similarly, the Eighth Circuit      exception applied, a complaint alleging the facts set forth in
in Dykstra held that the discretionary function exception           Muniz would be adequate, in our opinion, to survive a motion
barred a suit against the BOP by an inmate who was sexually         to dismiss because a guard’s conscious decision not to protect
assaulted by another inmate. Dykstra claimed that certain           an inmate from a specific and immediate attack cannot “be
prison officials were negligent in not informing him that his       said to be grounded in the policy of the regulatory regime.”
youthful appearance placed him at a higher risk of sexual           Gaubert, 499 U.S. at 325.
assault and for not taking action after Dykstra informed a
guard that another inmate had been staring at him. 140 F.3d            In the present case, only three allegations in the complaint
at 795. But Dykstra’s complaint was found deficient because         directly focus on the basis for prison officials’ decisions
it failed to allege facts establishing that prison officials’       regarding Hearlson’s safety. The complaint first alleges that
decisions regarding these issues were not based on policy           because Hearlson was “in protective lock-up prior to the
considerations. Id. at 796. The Eighth Circuit therefore            attack, employees and officials of the Defendant knew or
No. 02-6303                      Montez v. United States      11    12   Montez v. United States                      No. 02-6303

should have known that Tracy Hearlson was in imminent               were of the type that can be said to be grounded in BOP
danger of likely injury of substantial certainty and                policy.
consciously and knowingly failed to afford him reasonable
protection.” But the sentence provides insufficient support           In conclusion, the relevant statute and regulations do not
for its conclusory allegations. The sole fact Hearlson was “in      prescribe a mandatory course of conduct for prison officials
protective lock-up prior to the attack” does not demonstrate        to follow when making decisions regarding inmates’ safety.
the existence of a specific and immediate threat against            Montez’s complaint, moreover, fails to rebut the Gaubert
Hearlson that was still present after he was released from          presumption that the decisions by prison officials regarding
protective lock-up a month earlier. That Hearlson had               his safety were based upon BOP policy. We therefore
previously been in protective lock-up is simply insufficient to     conclude that the discretionary function exception shields the
rebut the presumption that the prison officials’ decisions          United States from liability in this case, and that the district
regarding Hearlson’s safety at the time of his death were of        court properly granted the government’s motion to dismiss for
the type that can be said to be grounded in BOP policy.             lack of subject matter jurisdiction.

  The complaint next alleges that the prison officials placed                           III. CONCLUSION
Hearlson in a facility that they “knew or reasonably should
have known was so inadequate that Tracy Hearlson could not            For all of the reasons set forth above, we AFFIRM the
be adequately protected from the risk of assaults by fellow         judgment of the district court.
prisoners.” This allegation, however, simply alleges that the
BOP officials were negligent in making a decision—to place
Hearlson in the Commonwealth South housing area—without
addressing the nature of that decision, and therefore does not
satisfy Gaubert’s requirement that a complaint “must allege
facts which would support a finding that the challenged
actions are not the kind of conduct that can be said to be
grounded in the policy of the regulatory regime.” Gaubert,
499 U.S. at 324-25.
   Finally, the complaint alleges that the prison officials “were
required to use ordinary care in determining whether a federal
prisoner should be kept in a particular facility and in
determining where within that particular facility the prisoner
should be kept, and the Governmental functions performed in
these areas are not ‘discretionary functions’ with[] respect to
which the United States is immune from Tort Liability.” This
is nothing more than a bare assertion that the discretionary
function exception does not apply, and it clearly does not
satisfy Gaubert’s requirement of a factual assertion sufficient
to rebut the presumption that the prison officials’ decisions
No. 02-6303                     Montez v. United States      13

                  ____________________

                    CONCURRENCE
                  ____________________

   ROGERS, Circuit Judge, concurring. I concur in the
majority’s judgment and almost totally in its reasoning. My
one reservation concerns the first complaint allegation
discussed by the majority: that because of Hearlson's previous
stint in protective custody, BOP officials knew or should have
known that Hearlson was in danger and failed to provide him
reasonable protection.         With respect, the issue for
discretionary function exception purposes is not whether there
is sufficient support for the allegation, nor is the issue the
specificity or immediacy of the threat. Instead, the relevant
question is whether the ongoing determination of where
Hearlson would be placed was the type of agency decision-
making that takes broad agency policies into account. In
short, the relevant inquiry is the nature of the decision-making
process, not the nature of the threat. I agree, however, that
there is nothing about this allegation that rebuts the
presumption that the prison officials’ decisions regarding
Hearlson’s safety were the type of decision that is grounded
in policy.
