     Case: 10-51106       Document: 00511703576          Page: 1    Date Filed: 12/21/2011




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

                                                                               FILED
                                                                           December 21, 2011
                                         No. 10-51106
                                                                              Lyle W. Cayce
                                                                                   Clerk
TOMAS RIVAS LOPEZ, Individually and as Representative of the Estate of
Julio Adalberto Rivas Parada, Also Known As Juan Carlos Montano-Parada;
MARIA ISABEL PARADA DE RIVAS, Individually and as Representative of
the Estate of Julio Adalberto Rivas Parada, Also Known As Juan Carlos
Montano-Parada,

                                                            Plaintiffs - Appellants

v.

UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT;
ASSISTANT SECRETARY JULIE MEYERS; DIVISION OF IMMIGRATION
HEALTH SERVICES; GENE MIGLIACCIO, Director of the Division of
Immigration Health Services,

                                                            Defendants - Appellees




                      Appeal from the United States District Court
                           for the Western District of Texas
                                 USDC No. 2:08-CV-38


Before JONES, Chief Judge, HAYNES, Circuit Judge and ENGELHARDT,
District Judge.* **
EDITH H. JONES, Chief Judge:

        *
            District Judge, Eastern District of Louisiana, sitting by designation.
       **
           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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                   No. 10-51106

      Appellants sued the United States under the Federal Tort Claims Act
(“FTCA”) alleging theories of negligence and constitutional violations in
connection with Julio Adalberto Rivas Parada’s death in federal custody. The
district court dismissed Appellants’ claims for lack of subject-matter jurisdiction
pursuant to the FTCA’s discretionary function exception. We AFFIRM.
                               I. BACKGROUND
      Parada’s Detention
      The material facts are undisputed. In May 2006, thirty-two-year-old Julio
Adalberto Rivas-Parada and his brother illegally entered the United States by
wading across the Rio Grande. Parada had already been hospitalized in Mexico
during their journey. Near Carrizo Springs, Texas, Parada grew too weak to
continue and the two stopped at a ranch to turn themselves in. Border Patrol
agents took them into custody. On intake, the Val Verde Correctional Facility
medically screened Parada. The facility found no medical problems aside from
a positive initial tuberculosis test.
      Parada pled guilty to misdemeanor illegal entry and was sentenced to 90
days in prison. The court remanded Parada and his brother to the United States
Marshal Service’s (“USMS”) custody. The USMS transferred them to the Crystal
City Correctional Center (“CCCC”). CCCC initially segregated Parada pending
follow-up tuberculosis testing, which came back negative. Three days later,
Parada sought treatment in the CCCC medical clinic for diarrhea, vomiting,
muscle aches, and general weakness. He was given Pepto Bismol for his
symptoms.
      Parada’s symptoms continued, and he was unable to eat or retain fluids.
When Parada complained again of his symptoms a week later, a nurse, in


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consultation with a doctor, treated Parada with an antiemetic and antibiotics.
Parada returned the next day with persistent vomiting and diarrhea. Medical
staff assured him that he had only begun a treatment regimen. They instructed
him to drink plenty of fluids and to return in two days if his symptoms did not
abate.
      Parada’s condition worsened. Parada suffered a seizure the next day and
developed borderline low blood pressure. A medical technician treated both on
consultation with a nurse, who instructed Parada to drink more fluids and make
an appointment during sick-call hours the next day. Near 3:30 A.M. on June 8,
a correctional officer found Parada in his cell, too weak to move and complaining
of shortness of breath. On-duty medical staff brought an oxygen tank and
requested authorization to send Parada to the emergency room. CCCC doctors
authorized Parada’s departure at about 4:20 A.M.
      CCCC personnel transported Parada to the hospital. On arrival an hour
later, emergency room staff noted Parada’s ongoing vomiting and his inability
to eat, his borderline low blood pressure, and signs of severe malnutrition.
Emergency medical personnel treated Parada to no avail. He died at 7:15 A.M.
of a heart attack precipitated by a fatal electrolyte imbalance from his
malnutrition, diarrhea, and vomiting.
      Prison Regulations At Issue
      The USMS housed Parada at CCCC pursuant to an Intergovernmental
Service Agreement (“IGA”) with Crystal City, Texas, executed in 2003. The
USMS had housed prisoners at CCCC for some time before the IGA. An IGA is
a formal written agreement between the USMS and a local or state government
for the housing, care, and safekeeping of federal prisoners in exchange for a fixed


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per diem payment by the USMS for each prisoner held. The City in turn
contracted with BRG Security Services, Inc. (“BRG”) for CCCC’s day-to-day
operational management.
      USMS policies at the commencement of the contract required an initial
facility inspection upon an IGA award, supplemented by annual facility
inspections. U.S. MARSHALS SERV., POLICY DIRECTIVES § 9.26(A)(3)(a) (2006)
(listing “Detention Facility Contracting Policy and Procedures” including facility
inspections). These policies — labeled “Directives” — required “an initial on-site
inspection of detention facilities to determine the facility’s level of compliance
with USMS inspection guidelines.”       Id. at § 9.26(A)(3)(a)(5).   The USMS
supplemented these inspection requirements with a Jail Inspection Pilot
Program, which, for the 21 states whose jail standards met or exceeded USMS
minimum standards, accepted annual copies of local regulatory inspections in
lieu of an IGA facility inspection. Memorandum from Eduardo Gonzalez, Dir.,
U.S. Marshals Serv., to U.S. Marshals Serv., Jail Inspection Pilot Program
(Aug. 4, 1994). Nonetheless, the pilot program noted the continuing necessity
of an initial inspection following an IGA award. Id.
      The USMS pilot inspection program accepted Texas jail standards. The
Texas Commission on Jail Standards (“TCJS”) regularly inspected CCCC and
calculated its maximum capacity at 515 prisoners. The USMS accepted TCJS
inspection reports in monitoring CCCC’s compliance with both USMS and IGA
standards. TCJS certified CCCC’s compliance with state jail standards for 2004
and 2005, but CCCC failed minimum standards in November 2006, after
Parada’s death.




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      The USMS has established custodial healthcare standards. USMS policy
is to “ensure that all USMS prisoners receive medically necessary health care
services while ensuring that federal funds are not expended for unnecessary or
unauthorized health care services.” U.S. MARSHALS SERV., POLICY DIRECTIVES
§ 9.15(C)(1) (2006). USMS policy authorizes the acquisition of, and payment for,
“reasonable and medically necessary care (including emergency medical care)”
“upon recommendation of a competent medical authority or physician,” and
requires immediate provision of emergency medical care. Id. at § 9.15(C)(2).
USMS policy defines “emergency medical care” as “[m]edical care immediately
necessary to preserve the life, health, limb, sight[,] or hearing of the prisoner.”
Id. at § 9.15(C)(17)(c). Deputy marshals generally must pre-approve outside
general medical care to USMS prisoners, but when prisoners are transported for
emergency medical care, the USMS must only be notified “as soon as possible.”
Id. § 9.15(C)(7). The IGA requires the City to provide federal prisoners with the
same level of medical care as local prisoners. The City must also provide 24-
hour emergency medical care for prisoners.
      Proceedings
      Appellants sued BRG and its affiliates, and federal entities and officials.
Appellants settled their BRG-related claims. The United States was substituted
for the federal defendants. Appellants’ second amended complaint asserted
numerous theories of negligence, including failures to provide or to ensure the
provision of medical care, to oversee operation of the CCCC in accordance with
USMS standards, to comply with TCJS capacity standards, to investigate
Parada’s death, and to provide constitutionally sufficient policies governing
prisoner medical care.


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       Following some discovery, the United States moved for summary
judgment, asserting that the FTCA barred each of Appellants’ claims under
either the independent contractor or discretionary function exemptions. The
district court considered the motion as a Rule 12(b)(1) motion to dismiss for want
of subject-matter jurisdiction and concluded the Appellants could not state a
facially plausible negligence claim that arose from a non-discretionary function.
The court accordingly dismissed Appellants’ FTCA claims.
      Appellants now rely on two of their negligence theories as falling outside
the scope of the discretionary function exception. They assert that USMS
policies obliged the USMS to inspect CCCC, rendering the negligent failure to
inspect the facility a violation of a non-delegable, non-discretionary duty. They
also claim USMS policies mandated the USMS to ensure adequate medical care,
and that the USMS’s failure to monitor CCCC’s operation violated these non-
discretionary policies.     Alternatively, Appellants argue that Parada’s
constitutional rights were violated by inadequate medical care, and that the
discretionary function exception necessarily excludes any discretionary decisions
made in violation of the Constitution.
                          STANDARD OF REVIEW
      This court reviews de novo a district court’s dismissal under Federal Rule
of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction, applying the
same standard as the district court. Spotts v. United States, 613 F.3d 559, 565
(5th Cir. 2010). The party asserting jurisdiction bears the burden of proof of
demonstrating jurisdiction.     Davis v. United States, 597 F.3d 646, 649
(5th Cir. 2009). A complaint should be dismissed for lack of subject-matter
jurisdiction when “it appears certain that the plaintiff cannot prove a plausible


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set of facts that establish subject-matter jurisdiction.” Id. In determining
whether it has jurisdiction, the court may consider: (1) the complaint alone;
(2) the complaint plus undisputed facts evidenced in the record; or (3) the
complaint, undisputed facts, and the court’s resolution of disputed facts. Id. at
649-50.
                                DISCUSSION
      The United States, as sovereign, is immune from suit without its express
consent. Hebert v. United States, 438 F.3d 483, 487-88 (5th Cir. 2006). This
immunity deprives the court of subject-matter jurisdiction over claims against
the United States. Id. Through the FTCA, Congress has consented to suit
against the United States “for injury or loss of property, or personal injury or
death caused by the negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or employment.”
28 U.S.C. § 1346(b)(1).
      “The liability of the United States under the FTCA, however, is subject to
various exceptions contained in 28 U.S.C. § 2680, including the ‘discretionary
function’ exception.” Spotts v. United States, 613 F.3d 559, 566 (5th Cir. 2010).
The discretionary function exception withdraws the FTCA’s waiver of sovereign
immunity for actions “based upon the exercise or performance or the failure to
exercise or perform a discretionary function or duty on the part of a federal
agency or an employee of the Government, whether or not the discretion
involved be abused.” Id. (quoting 28 U.S.C. § 2680(a)).
      Under the Supreme Court’s Gaubert test, a governmental employee’s
conduct must satisfy two conjunctive criteria to qualify as a discretionary
function. United States v. Gaubert, 499 U.S. 315, 322-23, 111 S. Ct. 1267, 1273-


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74 (1991). First, the challenged conduct must be “discretionary in nature, acts
that ‘involv[e] an element of judgment or choice.’” Id. at 322. If so, we must
examine if the conduct is also “of the kind that the discretionary function
exception was designed to shield.” Id. at 322-23. The exception protects “actions
and decisions based on considerations of public policy,” including “decisions
grounded in social, economic, and political policy.” Id. at 323. When, however,
a governmental agent violates a nondiscretionary federal law, regulation, or
express policy, a suit against the United States may go forward subject to other
FTCA, state tort law, and procedural requirements. Id. at 324.
      Appellants seek to overcome the discretionary function exception by
arguing the USMS violated its own nondiscretionary policies in both failing to
inspect CCCC and failing to oversee the facility’s medical care. Because the
negligence claims derive from separate policies, we evaluate them separately.
      Appellants first contend that various Directives required the USMS to
inspect CCCC either immediately preceding or immediately following an IGA
award. An internal policy memorandum states that an institution “need[ed] to
be inspected before the award of an IGA and subsequently inspected annually.”
Memorandum from Eduardo Gonzalez, Dir., U.S. Marshals Serv., to U.S.
Marshals Serv., Jail Inspection Pilot Program (Aug. 4, 1994). Another USMS
Directive requires the agency to “[c]onduct an initial on-site inspection of
detention facilities to determine the facility’s level of compliance with USMS
inspection      guidelines.”         U.S.    MARSHALS        SERV.,     POLICY
DIRECTIVES § 9.26(A)(3)(a)(5) (2006). These documents allegedly articulate a
nondelegable, nondiscretionary policy that the USMS breached by failing to
inspect CCCC in 2003 when the IGA took effect. Appellants emphasize the


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USMS’s use of the term “will” in these Directives as though it were dispositive
of a nondiscretionary duty: the USMS will complete an inspection and will
complete a form so documenting.
      This view is oversimplified.      As this court has found, many policy
statements couched in seemingly mandatory language ultimately present only
“generalized, precatory, or aspirational language that is too general to prescribe
a specific course of action for an agency or employee to follow.” Freeman v.
United States, 556 F.3d 326, 338 (5th Cir. 2009). Thus, in Freeman, Department
of Homeland Security policies stating where medical support “is required”
following a disaster articulated only aspirational goals, although those policies
allocated responsibilities to various agencies after a disaster. See id. at 338-39.
Even a statement that “federal support must be provided in a timely manner to
save lives” constituted only “an assumption, not a specific directive.”
Id. at 339 n.12. Freeman similarly concluded that the vast majority of a series
of policy duties labeled “Correctional Statements and Accreditation” — which
provided for methods for monitoring and auditing compliance — established only
recommended standards. See Spotts, 613 F.3d at 571, 571 n.10, 572. That the
USMS documents here in question state what the USMS “will” do is far from
dispositive; “will” may be used to express a determination to commit a future act
as easily as a command to perform that act.
      Instead, the relevant inquiry is whether the policy specifically addresses
how an official must confront a given situation. Freeman, 556 F.3d at 339-40.
A policy may direct general policy goals — such as determining a “facility’s level
of compliance with USMS inspection guidelines” — but when the policy fails to
prescribe “specific direction” as to what course of action an employee must


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follow, it generally fails to establish a nondiscretionary duty. Guile v. United
States, 422 F.3d 221, 230-31 (5th Cir. 2005). Here, the USMS Directives
provided no guidance, or even mention, on a variety of topics relating to this
inspection obligation. Such issues include whether the grant of an IGA was to
be contingent on a specific level of compliance, what minimum “level of
compliance” (implying a continuum of potential compliance, and thus discretion
vested in the USMS) a facility had to meet, and what remedial actions to take
(if any) in the event of insufficient compliance with USMS guidelines. As to the
“nondelegable” nature of the inspection requirement, USMS contends that it
could rely on the TCJS annual inspections, which the JIPP expressly approved,
to “override” the requirement of a pre-IGA inspection of CCCC. Memorandum
from Eduardo Gonzalez, Dir., U.S. Marshals Serv., to U.S. Marshals Serv., Jail
Inspection Pilot Program (Aug. 4, 1994).                 The CCCC satisfied the TCJS
standards in 2004-05. The decisions how to conduct an inspection and whether
to rely on annual state inspections, especially when taken against the backdrop
of the facility’s historical use in housing federal detainees, were imbued with
policy and discretionary factors. Finally, the decision to retain a contractor is a
policy-based discretionary decision. Guile, 422 F.3d at 231. For these reasons,
the USMS inspection directive did not impose a “nondiscretionary” duty to
inspect CCCC as opposed to merely mandating best practices before and after
the award of an IGA.1


       1
          But even if we assume the USMS directive imposed a nondiscretionary duty to
inspect CCCC at the inception of an IGA award, and further assume USMS somehow breached
the duty, Appellants had to allege facts that, if true, would demonstrate a plausible causal
relationship between the nondiscretionary duty and Parada’s death. See Harold H. Huggins
Realty, Inc. v. FNC, Inc., 634 F.3d 787, 796, 803 n.44 (5th Cir. 2011) (citing Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1973-74 (2007)). Here Appellants’ claim fails.

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       Appellants rely on another section of the Directives to claim negligent
oversight of medical care at CCCC. USMS policy provided that “the USMS will
ensure that all USMS prisoners receive medically necessary health care
services,” and that emergency services “will be provided” to all prisoners
“immediately.” U.S. MARSHALS SERV., POLICY DIRECTIVES § 9.15(C)(1) (2006).
The Directives further noted that facilities “must meet . . . minimum conditions
of confinement,” which included “adequate emergency medical coverage . . .
available 24 hours a day.” Id. at §§ 9.25(A), (A)(3). We cannot perceive a
nondiscretionary failure by the USMS. This claim is controlled by our decision
in Guile, supra, 422 F.3d at 231 (“Supervision of a contractor’s work, including
the degree of oversight to exercise, is inherently a discretionary function.”).
       Appellants finally attempt to circumvent the discretionary function
exception with regard to Parada’s deficient medical care by describing the
USMS’s failure as a constitutional violation. Appellants rely on a vacated panel
opinion in Castro v. United States to assert that if the USMS’s failure to oversee
properly CCCC’s provision of medical care violated Parada’s constitutional
rights, that failure cannot fall within the discretionary function exception. See
Castro v. United States, 560 F.3d 381, 390-91 (5th Cir. 2009), rev’d en banc,
608 F.3d 266, 268-69 (5th Cir. 2010), cert. denied, 131 S. Ct. 902 (2011). The
Castro panel opinion has no precedential value. In Spotts, supra, this court
subsequently declined to determine whether a properly pled state law tort claim
predicated on a decision that violates the Constitution may obviate the


If the USMS was obliged to inspect CCCC in 2003 upon its IGA award and to file attendant
paperwork memorializing such an inspection, it is difficult to conceive of how such a failure
plausibly led to Parada’s death in 2006 from specific failures of medical care by CCCC’s
designees.

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discretionary function exception. We need not decide so here either. Appellants’
pleadings allege no more than negligence against federal officials and evidence
no facts that, if proved, could support the deliberate indifference standard
required for an Eighth Amendment claim. Lacking any plausible basis for a
constitutional violation by USMS, Appellants also lack grounds to argue for
avoiding the discretionary function exception.
                                CONCLUSION
      Appellants’ negligence claims rest ultimately on discretionary decisions by
the USMS, the nature of which preclude potential federal tort liability under the
FTCA. Their constitutional claim fails to meet minimum pleading standards
that might allow them to argue for FTCA liability. We therefore AFFIRM the
district court’s dismissal of Appellants’ claims.
                                                                   AFFIRMED.




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HAYNES, Circuit Judges, concurring in the judgment:
      The facts of this case are tragic and horrific, but we are required to follow
the law which does not provide a remedy against these Appellees under the facts
as pleaded. The majority opinion reaches the correct result under the law, so I
join in the judgment. However, I find it unnecessary to reach the question of
whether the initial inspection requirement was a nondiscretionary duty. I agree
with the reasoning of footnote one that Appellants failed to plead a plausible
causal connection between the failure to comply with the arguably
nondiscretionary duty to conduct an initial inspection and Parada’s death.




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