                                                                                FILED
                           NOT FOR PUBLICATION                                  FEB 27 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT

JANE DOE,                                        No. 11-16394

              Plaintiff - Appellant,             D.C. No. 1:08-cv-00517-BMK

  v.
                                                 MEMORANDUM*
UNITED STATES OF AMERICA and
JEFFREY KALANI CRUZ,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Hawaii
                   Barry M. Kurren, Magistrate Judge, Presiding

                     Argued and Submitted February 11, 2013
                               Honolulu, Hawaii

Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges.

       Plaintiff Jane Doe filed this action under the Federal Tort Claims Act

("FTCA"), 28 U.S.C. § 1346, and Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971), against the United States and

Defendant Jeffrey Kalani Cruz, a correctional officer at the Federal Detention



        *
         This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Center in Honolulu. She appealed the district court’s order dismissing her FTCA

claims for lack of subject-matter jurisdiction and granting summary judgment in

favor of Defendants as to the Bivens claim. During oral argument, Plaintiff

conceded her Bivens claim and those FTCA claims that relate to the allegedly

negligent hiring, training, and supervision of prison employees. We therefore

consider only her FTCA claim that arises from the alleged negligence of Cruz.

Reviewing de novo, Alfrey v. United States, 276 F.3d 557, 561 (9th Cir. 2002), we

reverse the district court’s order as to that claim and remand for further

proceedings.

      The discretionary function exception to federal courts’ jurisdiction under the

FTCA applies only if "the challenged actions involve an ‘element of judgment or

choice.’" Terbush v. United States, 516 F.3d 1125, 1129 (9th Cir. 2008) (quoting

United States v. Gaubert, 499 U.S. 315, 322 (1991)); see also Berkovitz ex rel.

Berkovitz v. United States, 486 U.S. 531, 536–37 (1988) (holding that "judgment

or choice" is the first of two requirements for the exception to apply). Here, Cruz

stated to FBI investigators that, during training, he had been told not to go into an

area that lacks video surveillance alone with a female inmate. Viewed in the light

most favorable to Plaintiff, Alfrey, 276 F.3d at 561, that statement suggests that the

prison had a mandatory policy against putting female inmates in the same kind of


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situation in which Cruz left Plaintiff with Bureau of Prisons electrician Markell

Milsap. Although Cruz later characterized the instruction that he received during

training as a strong "suggestion," that testimony merely creates a factual dispute as

to whether the prison policy against leaving inmates alone with individual prison

employees was mandatory or discretionary. See, e.g., Espinosa v. City of San

Francisco, 598 F.3d 528, 538 (9th Cir. 2010) (denying summary judgment in part

because inconsistent testimony revealed a material factual dispute). Because Cruz

may have violated a mandatory policy, the district court erred in ruling, as a matter

of law, that his decisions involved an "element of judgment or choice." See

Terbush, 516 F.3d at 1128 (stating that the government has the burden of proving

that the discretionary function exception applies).

      Our decision is consistent with Alfrey. In Alfrey, a prison official’s

response to reported inmate threats was held to be a discretionary judgment

because it required that he "set priorities among all extant risks: the risk presented

by the reported threat, along with the other risks that inevitably arise in a prison."

276 F.3d at 565 (emphases added). Here, Cruz allegedly created the risk to

Plaintiff through his own decision—possibly in violation of prison policy—to

leave Plaintiff alone in an unsupervised closet with Milsap. Alfrey does not shield




                                           3
that decision merely because Cruz was then left to weigh the risk that he had

created through his own alleged negligence against other extant risks.

      Because the evidentiary record could demonstrate that the challenged actions

of Defendant Cruz do not meet the first Berkovitz requirement, the district court

erred in dismissing the action under the discretionary function exception.

      AFFIRMED in part; REVERSED in part and REMANDED. The parties

shall bear their own costs on appeal.




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