                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 10-13872         ELEVENTH CIRCUIT
                                        Non-Argument Calendar        FEB 17, 2011
                                      ________________________        JOHN LEY
                                                                       CLERK
                                D.C. Docket No. 1:08-cv-23412-MGC

PEDRO PRECIADO RODRIGUEZ, and his wife,
GENELDA MARMOLEJO,

llllllllllllllllllllllllllllllllllllllll                         Plaintiffs-Appellants,

                                                 versus

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                         Defendant-Appellee.

                                     ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________

                                           (February 17, 2011)

Before TJOFLAT, CARNES and KRAVITCH, Circuit Judges.

PER CURIAM:

         Pedro Preciado Rodriguez and his wife Genelda Marmolejo filed a civil
action under the Federal Tort Claims ACT (FTCA), 28 U.S.C. §§ 1346(b)(1) and

2674, and under state law for negligence against the United States. The plaintiffs

sought damages for injuries Rodriguez suffered while he was detained at Krome

Service Processing Center (Krome). The district court dismissed the complaint for

lack of subject-matter jurisdiction because the alleged conduct fell within the

discretionary function exception to the FTCA’s waiver of immunity. We affirm.

      Government regulations require Krome to provide exercise equipment to

detainees, but the type of equipment is not specified. The recreational specialist,

who is responsible for selecting and maintaining the equipment at Krome, chose

the Hip & Dip Chin Combo machine. This machine is bolted to the concrete floor,

has no moving parts, and is easy to use. The Recreational Specialist assigned to

Krome is available to provide assistance and training on the equipment. The

equipment is inspected daily.

      On February 18, 2008, while detained at Krome pending removal

proceedings, Rodriguez was injured while attempting to use the Hip & Dip Chin

Combo machine in his dormitory. Although no one at Krome had instructed him

how to use the machine and he never asked for assistance, Rodriguez had watched

other detainees use it. That evening, Rodriguez climbed to the top of the machine

in an effort to reach the handles and then jumped or fell onto the concrete floor.

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The guards heard the thump, but did not witness the fall. Rodriguez was

transferred to the hospital where he was diagnosed with a traumatic cervical spine

injury; he will likely require life-long care.

          Rodriguez and his wife then filed this civil action against the United States

claiming that the authorities at Krome were negligent by failing to supervise and

instruct Rodriguez on the proper use of the equipment. In their three-count

complaint, the plaintiffs alleged negligence under the FTCA and state law and loss

of consortium.

          The district court sua sponte dismissed the complaint with prejudice for lack

of subject-matter jurisdiction, applying the discretionary function exception to the

government’s waiver of immunity.1 The court found that, although regulations

required Krome to provide equipment, the decision as to what type of equipment

was discretionary and there were no regulations setting forth Krome’s

responsibility to train, supervise, or warn detainees who used the equipment. As

the court explained, “Krome had to provide detainees with access to recreational

programs under safe conditions but had discretion as to the manner and method of

carrying out this non-specific guideline.” After unsuccessfully moving for relief



          1
              The court also declined to exercise its supplemental jurisdiction over the state-law
claims.

                                                     3
from the judgment, plaintiffs appeal.2

       We review a district court’s interpretation and application of the

discretionary function exception to the FTCA de novo.3 Ochran v. United States,

117 F.3d 495, 499-500 (11th Cir. 1997).

       The United States government may not be sued without its consent, and this

immunity extends to federal government agencies. Asociacion de Empleados del

Area Canalera (ASEDAC) v. Panama Canal Com’n, 453 F.3d 1309, 1315 (11th

Cir. 2006). Under the FTCA, the federal government waives its immunity

regarding negligent or wrongful actions committed by its employees within the

scope of their official duties. 28 U.S.C. § 1346(b)(1). But there is a “discretionary

function exception” to the FTCA’s waiver of immunity. Nguyen v. United States,

556 F.3d 1244, 1250-51 (11th Cir. 2009); see also 28 U.S.C. § 2680(a). The

discretionary function exception precludes government liability for “[a]ny claim


       2
          We reject Rodriguez’s argument that it was error for the district court to dismiss his
complaint without notice and the opportunity to conduct discovery. See Mesa v. United States,
123 F.3d 1435, 1439 (11th Cir. 1997); see also McElmurray v. Consol. Gov’t of Augusta-
Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007). The district court had before it the
parties’ discovery material and the plaintiffs have not proffered what additional discovery they
would have obtained to address subject-matter jurisdiction.
       3
          Although the court’s order dismissed the case for lack of subject-matter jurisdiction by
granting the government’s motion for summary judgment, we construe that order as a dismissal
under Federal Rule of Civil Procedure 12(b)(1). Sheely v. MRI Radiology Network, P.A., 505
F.3d 1173, 1182 (11th Cir. 2007).


                                                4
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.” 28 U.S.C.

§ 2680(a). When the discretionary function exception to the FTCA applies, no

federal subject matter jurisdiction exists. United States Aviation Underwriters,

Inc. v. United States, 562 F.3d 1297, 1299 (11th Cir. 2009). In deciding whether

subject-matter jurisdiction exists, we may consider the pleadings and matters

outside the pleadings, such as testimony and affidavits, to satisfy ourselves as to

our power to hear the case. McMaster v. United States, 177 F.3d 936, 940 (11th

Cir. 1999) (citation omitted).

      We apply a two-part test for determining whether a government employee’s

action or omission falls within the discretionary function exception. United States

v. Gaubert, 499 U.S. 315, 322-23 (1991); Autery v. United States, 992 F.2d 1523,

1526 (11th Cir. 1993). First, the court is to consider the nature of the conduct and

determine whether it involves “an element of judgment or choice.” Gaubert, 499

U.S. at 322 (citation omitted); see also Powers v. United States, 996 F.2d 1121,

1124 (11th Cir. 1993). Second, if the conduct at issue involves the exercise of

judgment, the court must determine whether that judgment is grounded in

considerations of public policy. Gaubert, 499 U.S. at 322-23. “In making this

                                          5
determination, we do not focus on the subjective intent of the government

employee or inquire whether the employee actually weighed social, economic, and

political policy considerations before acting.” Cohen v. United States, 151 F.3d

1338, 1341 (11th Cir. 1998) (quoting Ochran v. United States, 117 F.3d 495, 500

(11th Cir. 1997)).

       Here, Rodriguez challenges Krome’s failure to instruct, supervise, and warn

him regarding the use of the Hip & Dip Chin Combo Machine.4 The Department

of Homeland Security’s Immigration and Customs Enforcement Detention

Operations Manual provides,

       1. facilities must provide detainees with “access to recreational programs
       and activities under conditions of security and supervision that protect their
       safety and welfare,”
       2. each detention center “shall have an individual responsible for the
       development and oversight of the recreation program,”
       3. the “Recreational Specialist shall assess the needs and interests of the
       detainees,”
       4. “Exercise areas shall offer a variety of equipment. Weight training, if
       offered, must be limited to fixed equipment. Free weights are prohibited,”
       and
       5. “Programs and activities are subject to the facility’s security and
       operational guidelines and may be restricted at the [officer in charge’s]
       discretion.”

See INS Detention Standard, Recreation, I, III(F), (G) (2000).5

       4
          Plaintiffs do not challenge the decision to include the Hip & Dip Chin Combo Machine
as part of the recreational equipment.
       5
           Available at http://www.ice.gov/doclib/dro/detention-standards/pdf/recreation.pdf.

                                                 6
      Rodriguez contends that because the manual required Krome employees to

supervise the use of equipment, and there were employees present when he fell,

the discretionary-function exception does not apply, as there was no choice or

judgment involved. He further argues that the requirement that Krome have a

recreational specialist on site also removes any discretion. We disagree.

      The manual sets forth the basic requirement that Krome offer recreational

equipment. Government conduct does not involve an element of judgment or

choice, and thus is not discretionary, if “a federal statute, regulation, or policy

specifically prescribes a course of action for an employee to follow, because the

employee has no rightful option but to adhere to the directive.” Gaubert, 499 U.S.

at 322 (internal quotation marks and citation omitted). But, in this case, the

manual does not “specifically prescribe a course of action.” Although the manual

requires Krome offer safe conditions for the use of this equipment, there is no

regulation on point to direct the manner in which Krome provides such conditions.

In fact, the manual specifically provides that the activities are subject to the

officer’s discretion. Given these standards, there is little doubt that this is

precisely the type of discretion or choice that falls within the discretionary-

function exception. See Cohen, 151 F.3d at 1341-42 (concluding that prisoner

classification involves choice and judgment even though Bureau of Prisons is

                                           7
required by statute to provide for the protection of its inmates).

      Turning to the second prong of the analysis, we must determine “whether

the nature of the decision or conduct at issue is susceptible to policy analysis.”

Cohen, 151 F.3d at 1344 (internal quotation marks omitted). Rodriguez complains

of the failure to instruct, supervise, and warn him of the danger of the Hip & Dip

Chin Combo machine. We note that there was a recreational specialist on staff

and that Rodriguez never asked for any instruction. To require Krome staff to

anticipate both his unspoken need for assistance and the likelihood that he would

use the equipment improperly renders the staff unable to address more pressing

needs in the facility. We conclude that this is the type of decision subject to policy

analysis. Protected “[d]iscretionary conduct is not confined to the policy or

planning level.” Gaubert, 499 U.S. at 325. Rather, “[d]ay-to-day management . . .

regularly requires judgment as to which of a range of permissible courses is the

wisest.” Id.; see also Hughes v. United States, 110 F.3d 765 (11th Cir. 1997)

(applying discretionary-function exception where the plaintiff had alleged that the

postal service was negligent by failing to provide adequate lighting or security to

patrons using the twenty-four-hour access). In the instant case, these decisions

require considerations of institutional security, safety, and order. See, e.g. Bell v.

Wolfish, 441 U.S. 520, 547 (1979) (“Prison administrators . . . should be accorded

                                           8
wide ranging deference in the adoption and execution of policies and practices that

in their judgment are needed to preserve internal order and discipline and to

maintain institutional security.”). Accordingly, we conclude that the district court

properly dismissed the complaint for lack of subject-matter jurisdiction.

      AFFIRMED.




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