     Case: 09-10375         Document: 00511259808         Page: 1     Date Filed: 10/12/2010




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

                                                    FILED
                                                                              October 12, 2010

                                           No. 09-10375                        Lyle W. Cayce
                                                                                    Clerk

KAMAL K PATEL,

                                                       Plaintiff–Appellant
v.

UNITED STATES OF AMERICA,

                                                       Defendant–Appellee




                       Appeal from the United States District Court
                            for the Northern District of Texas
                                USDC No. 4:08-cv-00680-Y


Before JONES, Chief Judge, PRADO, Circuit Judge, and O’CONNOR,* District
Judge.
PER CURIAM:**
        Kamal K. Patel, pro se, appeals the district court’s dismissal of his suit
under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671–80.1


        *
             District Judge of the Northern District of Texas, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
       1
        Although the district court characterized its order as a grant of the Government’s
motion for summary judgment, the appropriate course of action was to dismiss Patel’s case.
A grant of summary judgment is a resolution of a case on the merits, which cannot be
accomplished by a court lacking subject matter jurisdiction. See Stanley v. Cent. Intelligence
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Patel filed a complaint alleging that Bureau of Prison (“BOP”) officials violated
their own policy statements when they transferred him to various federal prison
facilities that did not have the necessary equipment to treat his medical
conditions. The district court for the Northern District of Texas held that the
discretionary function exception to the FTCA deprived it of subject matter
jurisdiction.
       On appeal, Patel argues that BOP officials violated non-discretionary BOP
regulations, and thus the discretionary function exception cannot shield them
from FTCA liability. He also contends that the district court for the Northern
District of Texas (1) erred by failing to consider actions by BOP officials
occurring more than two years before his administrative tort claim; (2) abused
its discretion by denying his request for appointment of counsel as untimely; (3)
abused its discretion by failing to impose sanctions on the Government; and (4)
abused its discretion by preventing him from filing certain motions. Patel also
argues that the district court for the Eastern District of North Carolina lacked
jurisdiction to transfer his case to the Northern District of Texas.
       Because the BOP decisions to transfer Patel involved “an element of
judgment or choice,” United States v. Gaubert, 499 U.S. 315, 322 (1991) (citation
omitted), the district court did not err by finding that the discretionary function
exception barred Patel’s FTCA suit. Likewise, Patel’s additional arguments lack
merit. Accordingly, we affirm the district court’s dismissal.




Agency, 639 F.2d 1146, 1157 (5th Cir. 1981) (citation omitted). The district court, however,
did not use any summary judgment evidence, nor did it discuss whether a genuine issue of
material fact existed. We thus hold that this error was harmless and apply the standards for
review of a dismissal for lack of subject matter jurisdiction. See Capozzoli v. Tracey, 663 F.2d
654, 657 n.2 (5th Cir. 1981) (finding a district court’s erroneous grant of a motion for summary
judgment in an FTCA case based on lack of jurisdiction did not affect the outcome) (citation
omitted).

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               I. FACTUAL AND PROCEDURAL BACKGROUND
A.      Factual Background as Alleged by Patel
        While incarcerated at Federal Medical Center (“FMC”) Fort Worth in 1998,
Patel was diagnosed with a herniated disc in his neck and prescribed physical
therapy consisting of cervical traction. Before his physical therapy began, BOP
officials transferred Patel to a different prison,2 which did not have a cervical
traction device. Later, while awaiting an MRI and an appointment with a
specialist at Federal Corrections Institute (“FCI”) El Reno, BOP officials again
transferred Patel, this time to Federal Transfer Center (“FTC”) Oklahoma City.
Pursuant to both transfers, BOP officials listed Patel’s medical status as “good.”
        In 2001, while incarcerated at FTC Oklahoma City, Patel ruptured his
bicep tendon, and an orthopedic surgeon subsequently recommended that Patel
receive an MRI followed by surgery within sixty days of the date of the rupture.
Three days after this recommendation, BOP officials transferred Patel from FTC
Oklahoma City to FCI Bastrop. BOP officials included a medical status report
in Patel’s transfer papers which stated that Patel had no medical restrictions.
As a result of the transfer, Patel’s surgery was delayed to the point where it was
no longer possible to repair the ruptured tendon.
        BOP officials next transferred Patel from FCI Bastrop to FCI Beaumont,
where specialists diagnosed Patel with a compressed nerve in his spine and
recommended an epidural injection. Prior to the epidural, Patel was transferred
to FCI Big Spring.           While at FCI Big Spring, Patel cooperated with the
Department of Justice’s Office of Inspector General (“OIG”) as the OIG
conducted investigations into BOP violations of the USA PATRIOT Act. Patel
was transferred again, this time to FCI Forrest City. The OIG determined that
the transfer to FCI Forrest City was in retaliation for Patel’s participation in the



       2
           It is unclear from Patel’s brief whether this “different prison” was FCI El Reno.

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OIG’s investigation. At FCI Forrest City, medical staff concluded that they did
not have the resources to provide Patel with the medical care he needed.
B.      Procedural Background
        In February 2005, Patel filed an FTCA claim in the Northern District of
Texas challenging the BOP officials’ decisions to repeatedly transfer him,
alleging that the facilities he arrived at did not have the equipment necessary
to treat his maladies.    At the time he filed his complaint, Patel remained
incarcerated at FCI Forrest City, in Arkansas. The Government filed a motion
to dismiss, arguing that Patel failed to file his administrative tort claim within
the FTCA’s two-year statute-of-limitations period. In doing so, the Government
construed Patel’s complaint as one alleging the negligent provision of medical
services. Patel responded that he only alleged negligence in the BOP’s transfer
decisions and in failing to provide for his care and safe keeping. The district
court granted in part and denied in part the Government’s motion, finding that
Patel filed a timely FTCA claim but holding that Patel could only recover
damages occurring two years prior to the June 22, 2004 filing of his
administrative tort claim.
        The Government subsequently filed a motion for summary judgment,
arguing that Patel failed to provide expert medical testimony to support his
claims, and he therefore could not prove either the essential elements of a
medical malpractice claim or one for ordinary negligence.        In support, the
Government submitted the declaration of the Clinical Director at FCI Forrest
City (the “Clinical Director”) and a report prepared by Dr. F. Gregory Wolf, who
indicated that he conducted a physical examination of Patel.         Patel again
emphasized that he only challenged the BOP’s transfer decisions, and filed a
motion for sanctions under Federal Rules of Civil Procedure 11 and 56(g),
contending that the Clinical Director’s declaration was inconsistent with
statements that the Clinical Director included in a previous “Medical/Surgical

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and Psychiatric Referral Request” (the “Referral Request”). Patel also filed a
motion to strike Dr. Wolf’s report, arguing that the Government improperly
subjected him to a physical examination for purposes of litigation without
obtaining court approval under Federal Rule of Civil Procedure 35.
      The district court denied both the Government’s motion for summary
judgment and Patel’s motion for sanctions.        The district court rejected the
Government’s explanations for the inconsistencies between the Clinical
Director’s declaration and the Referral Request, but declined to impose sanctions
after finding the record insufficient to determine which document was false.
Despite this denial, the district court ordered that a copy of its order be provided
to the director of the BOP. The district court also held that the motion to strike
was moot because it had denied the Government’s motion for summary
judgment, but warned the Government not to rely on Dr. Wolf’s report during
the remainder of the litigation. Patel then filed a second motion for sanctions,
which the district court denied.
      In 2006, the district court transferred Patel’s case to the Eastern District
of Arkansas because (1) Patel was currently incarcerated in Arkansas at the
time; (2) three related claims remained pending in Arkansas; (3) the
Government failed to transport Patel and other incarcerated witnesses to trial
in Texas; and (4) the district court opined that counsel would likely need to be
appointed in both Texas and Arkansas, and it would be more efficient to appoint
the same attorney for all the related cases. The district court for the Eastern
District of Arkansas appointed an attorney for Patel and consolidated his case
with a factually-related case seeking injunctive relief, but, in 2007, transferred
the consolidated cases to the Eastern District of North Carolina after BOP
officials transferred Patel to a correctional facility there. Patel’s Arkansas-
licensed attorney withdrew as counsel, and the district court for the Eastern
District of North Carolina ordered the North Carolina Prisoner Legal Services

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Inc. (“NCPLS”) to determine whether Patel required appointed counsel. The
NCPLS opined that Patel did not need an attorney, and the district court for the
Eastern District of North Carolina denied Patel’s request to appoint one.
      In April 2008, the Government filed a motion to dismiss Patel’s case for
lack of subject matter jurisdiction or, in the alternative, for summary judgment,
arguing that the district court had no jurisdiction to hear Patel’s case under the
discretionary function exception to the FTCA. The district court for the Eastern
District of North Carolina did not rule on the Government’s motion, but entered
a scheduling order stating that “all motions of any nature (except those relating
to the admissibility of evidence at trial), must be filed by April 7, 2008.
Untimely motions may be summarily disregard[ed].”             Despite filing eleven
additional motions before the April 7 deadline, Patel failed to file an additional
motion to appoint counsel until August 29, 2008.
      Patel subsequently filed several motions seeking to transfer his case out
of the Eastern District of North Carolina, and a motion to sever the FTCA and
injunctive relief claims. In November 2008, the district court for the Eastern
District of North Carolina transferred Patel’s consolidated case back to the
Northern District of Texas because (1) Patel had been transferred out of North
Carolina to Pennsylvania, (2) Patel’s cause of action arose in the Northern
District of Texas, and (3) the documents necessary for the case were located in
Texas. At that time, Patel had filed at least thirty-five pending motions, two of
which sought to reinstate his previously-filed motion for sanctions. In December
2008, the district court for the Northern District of Texas granted the
Government’s motion for summary judgment as to all of Patel’s claims seeking
injunctive relief,3 imposed a deadline for filing motions, disregarded all untimely
motions under the Eastern District of North Carolina’s scheduling order, and



      3
          Patel does not appeal this ruling.

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limited the parties to filing motions regarding the discretionary function
exception’s effect on Patel’s FTCA claim. One of these disregarded motions was
Patel’s untimely motion for appointment of counsel.
         After additional briefing by the parties, the district court granted the
Government’s motion for summary judgment as to Patel’s FTCA case, effectively
dismissing Patel’s case for lack of subject matter jurisdiction based on the
discretionary function exception to the FTCA. Patel timely appealed.
                                   II. ANALYSIS
         Patel’s primary argument is that the district court erred by dismissing his
suit pursuant to the discretionary function exception to the FTCA. Additionally,
Patel argues that the district court erred by limiting its consideration of the BOP
officials’ actions to those occurring within two years before he filed his
administrative tort claim. Next, Patel contends that the district court abused
its discretion by denying, as untimely, his motion for appointment of counsel.
Patel also argues that the district court abused its discretion by failing to impose
sanctions on the Government for filing a false declaration and submitting him
to a physical examination for purposes of litigation without securing leave of the
court.    Patel next contends that the district court abused its discretion by
preventing him from filing certain motions. Finally, Patel argues that the
district court for the Eastern District of North Carolina had no jurisdiction to
transfer his case to the Northern District of Texas, and therefore his case should
be returned to the Eastern District of Arkansas. We address each argument in
turn.
A.       The FTCA’s Discretionary Function Exception Bars Patel’s Suit
         We review de novo the district court’s dismissal pursuant to Federal Rule
of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Freeman v.
United States, 556 F.3d 326, 334 (5th Cir.), cert denied, 130 S. Ct. 154 (2009).
As we review the district court’s motion to dismiss, we accept all of Patel’s

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factual allegations as true and consider whether his allegations state a claim
sufficient to survive a Rule 12(b)(1) motion. Gaubert, 499 U.S. at 327.
      The FTCA is a limited waiver of the United States’ sovereign immunity,
see 28 U.S.C. § 2679(b)(1), and we must strictly construe such waivers, resolving
all ambiguities in favor of the sovereign. See Lane v. Pena, 518 U.S. 187, 192
(1996). The FTCA’s discretionary function exception provides that sovereign
immunity is not waived for any claim “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 be abused.” 28 U.S.C. § 2680(a).
      We engage in a two-step analysis to determine whether the discretionary
function exception applies. Gaubert, 499 U.S. at 322–23. We first ask whether
the act “involv[es] an element of judgment or choice.”         Id. at 322 (citation
omitted). If so, we then ask “whether that judgment is of the kind that the
discretionary function exception was designed to shield.” Id. at 322–23 (citation
omitted). The discretionary function exception does not apply if the challenged
act exceeds the scope of the actor’s authority as designated by statute or the
Constitution. See Sutton v. United States, 819 F.2d 1289, 1293 (5th Cir. 1987).
      1.    Patel’s Allegation that BOP Officials Violated His
            Constitutional Rights Fails to Defeat the Discretionary
            Function Exception
      Patel first argues that BOP officials acted outside the scope of their official
duties because the injuries they caused him by the transfers amounted to
deliberate indifference in violation of the Eighth Amendment, and were driven
by retaliation in violation of the First Amendment. Patel’s argument fails, for
two reasons. First, Patel relies heavily on Castro v. United States, 560 F.3d 381
(5th Cir. 2009), which has since been overturned by the en banc court. See
Castro v. United States, No. 07-40416, 2010 WL 2183616 (5th Cir. June 2, 2010).



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       More significantly, only Patel’s complaint, as supplemented by undisputed
facts and resolved disputed facts, may be considered in a dismissal of a
complaint for lack of subject matter jurisdiction. See Freeman, 556 F.3d at 334.
Patel failed to allege a First Amendment retaliation claim in his complaint or
administrative tort claim. Additionally, Patel’s complaint does not demonstrate
that the actions of the BOP officials rise to the level of deliberate indifference in
violation of his Eighth Amendment rights. A prison official acts with deliberate
indifference “only if he knows that inmates face a substantial risk of serious
harm and disregards that risk by failing to take reasonable measures to abate
it.” Farmer v. Brennan, 511 U.S. 825, 839–40 (1994). During the years in
question, Patel had been seen by numerous doctors, and at no point in his
complaint or administrative tort claim did he contend that the BOP’s placement
decisions were made as an attempt to deny him medical care. See Varnado v.
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (discussing an Eighth Amendment
claim for deliberate indifference under 42 U.S.C. § 1983, and stating
“[u]nsuccessful medical treatment does not give rise to a § 1983 cause of
action . . . [,] [n]or does [m]ere negligence, neglect or medical malpractice”)
(citations omitted) (some alteration in original). We thus find that Patel has not
sufficiently alleged a violation of any constitutional rights in his complaint or
administrative tort claim.4
       2.     The BOP Official’s Transfer Decisions Involved an Element
              of Discretion
       Patel also argues that BOP officials had no discretion to exclude medical
information in his transfer documents. He alleges that the BOP officials either
negligently or deliberately left information out of his transfer documents that



       4
        Patel’s additional argument that the discretionary function exception should not apply
because BOP employees allegedly falsified information lacks merit. The FTCA explicitly
excepts claims for misrepresentation and deceit. See 28 U.S.C. § 2680(h).

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could have ensured that his transfer to a facility with the capacity to treat his
medical conditions. Patel alleges that the BOP officials were bound by a policy
statement to include his medical history with any transfer papers, and thus the
BOP officials cannot be shielded by the FTCA’s discretionary function exception.
       The policy statement that Patel refers to states “[t]he following items on
Request for Transfer/Application of Management Variable (EMS 409) shall be
completed as described below: . . . (1) Include current, complete, and accurate
available information concerning any medical problem that might affect
designation.” (emphases added). Patel argues that the word “shall” means that
the BOP officials had no discretion to exclude “current, complete, and accurate
information” about his medical issues. The Government responds that the
clause reading “that might affect designation” confers upon the BOP discretion
to determine which information would affect a transferred inmate’s designation.
The district court found that the word “might” implied that BOP officials
requesting a transfer needed to use discretion in order to determine whether an
inmate’s medical issues were serious enough to affect the inmate’s designation,
and concluded that the discretionary function exception barred Patel’s suit.
       We agree with the district court. The Supreme Court has held that in
order for the discretionary function exception to apply, the act must simply
“involv[e] an element of judgment or choice.”             Gaubert, 499 U.S. at 322.
(emphasis added) (alteration in original).            Despite the policy statement’s
mandate that certain information “shall” be included, the directive includes an
“element” of discretion; specifically, whether an inmate’s medical condition is
serious enough to “affect designation.” Because we must strictly construe the
FTCA’s waiver of sovereign immunity in favor of the United States, see Lane,
518 U.S. at 192, we find that the first Gaubert step is satisfied.5

       5
       Patel argues that the district court “ignored mandatory regulations pertaining to the
requirements imposed to complete the BP-S149.060 form and the Progress Reports.” After

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       We now ask “whether that judgment is of the kind that the discretionary
function exception was designed to shield.” Gaubert, 499 U.S. at 322–23. Our
sister circuits have held that decisions regarding the transfers and
classifications of prisoners generally fall within the discretionary function
exception. See, e.g., Santana-Rosa v. United States, 335 F.3d 39, 44 (1st Cir.
2003); Cohen v. United States, 151 F.3d 1338, 1343–44 (11th Cir. 1998). Using
these cases as guideposts, we find that the judgment at issue in this case “is of
the kind that the discretionary function exception was designed to shield,”
Gaubert, 499 U.S. at 322–23, and thus hold that the discretionary function
exception bars Patel’s FTCA claim.
       3.      The Correct BOP Officials Effectuated Patel’s Transfers
       Patel also argues that BOP regulations mandate that a transfer involving
any inmate who requires medical or psychiatric treatment can only be made by
the Office of Medical Designations Transport (“OMDT”) in Washington, DC, and
that the discretionary function exception cannot apply because BOP officials at
the regional offices made his transfer decisions.                  As demonstrated by the
Government, however, routine, non-medical transfers “are submitted to the
Regional Designator,” and not the OMDT. Because Patel has not demonstrated
that his transfers were anything other than routine, we find that the BOP
officials did not violate any regulatory mandate when deciding to transfer him.6




reviewing these two documents, we conclude that the BOP did not violate any non-
discretionary mandate contained in either. Likewise, his citation to 28 C.F.R. § 524.42 lacks
merit. This regulation mandates that Progress Reports “shall include . . . institutional
adjustment,” which “ordinarily includes information on the inmate’s . . . physical and mental
health.” Id. Thus, his argument that the regulation “leaves no room for discretion” fails.
       6
         Patel’s argument, raised for the first time in his reply brief, that his status as a CARE
Level 3 inmate mandates that only the OMDT conduct his transfer decision, lacks merit. The
regulations Patel cites were not in effect until 2006, and Patel provides no authority
demonstrating that similar transfer restrictions existed during the years in which Patel
alleges that BOP officials negligently transferred him.

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B.      Patel Was Limited to Recovering Damages for Claims Arising
        Within Two Years Before the Filing of His Administrative Tort
        Claim
        Patel next argues that the district court erred when it determined that it
would not consider any incident occurring more than two years before he filed
his administrative tort claim. He argues that the continuing tort doctrine should
apply, which states that “the cause of action is not complete and does not accrue
until the tortious acts have ceased.” Gen. Universal Sys., Inc. v. HAL, Inc., 500
F.3d 444, 451 (5th Cir. 2007) (citation and internal quotation marks omitted).
The Texas Supreme Court has yet to endorse the continuing tort doctrine, id.,
and we have not considered whether a plaintiff may use the doctrine to recover
under the FTCA for injuries occurring more than two years before a plaintiff
files an administrative tort claim.
        Assuming, without deciding, that the district court erred by limiting
consideration of the events at issue to the two years prior to Patel’s filing of his
administrative tort claim, we hold that Patel is not entitled to relief. Federal
Rule of Civil Procedure 61 states that “[a]t every stage of the proceeding, the
court must disregard all errors and defects that do not affect any party’s
substantial rights.” Because the district court’s examination of events occurring
beyond the two year window prior to Patel’s administrative tort claim would not
affect the application of the discretionary function exception, we find that any
alleged error by the district court would not affect Patel’s substantial rights.
C.      The District Court Did Not Abuse Its Discretion by Denying, as
        Untimely, Patel’s Request for Appointment of Counsel
        Patel next argues that the district court for the Northern District of Texas
abused its discretion by denying his request for counsel after the district court
for the Eastern District of North Carolina transferred his case. While Patel’s
case remained pending before the Eastern District of North Carolina, the district
court entered a scheduling order, stating that “all motions of any nature (except

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those relating to the admissibility of evidence at trial), must be filed by April 7,
2008. Untimely motions may be summarily disregard[ed].” Patel failed to file
his motion to appoint counsel until August 29, 2008, despite filing eleven
additional motions before the April 7 deadline. After the district court for the
Eastern District of North Carolina transferred his case back to the Northern
District of Texas, the district court for the Northern District of Texas dismissed
all of Patel’s motions filed after the Eastern District of North Carolina’s
scheduling deadline, including his motion for appointment of counsel.
      “A civil rights complainant has no right to the automatic appointment of
counsel”; as such, “[t]he trial court is not required to appoint counsel for an
indigent plaintiff . . . unless the case presents exceptional circumstances.”
Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982) (internal citations
omitted). Additionally, “[t]he district court possesses the inherent power to
control its docket.” Marinechance Shipping, Ltd. v. Sebastian, 143 F.3d 216, 218
(5th Cir. 1998). Patel has not demonstrated why his “case presents exceptional
circumstances,” Ulmer, 691 F.2d at 212; instead, he simply accuses the
Government of engaging in “many instances of misconduct” and directs us to the
fact that the district court for the Eastern District of Arkansas briefly, and
without analysis, appointed him counsel.
      Upon transfer of his case to the Eastern District of North Carolina, the
district court seriously considered Patel’s request—going so far as to retain the
advice of the NCPLS—before deciding not to appoint Patel counsel, and the
district court for the Northern District of Texas was well within its discretion to
enforce the deadline set by the Eastern District of North Carolina. We therefore
find that the district court did not abuse its discretion when it denied as
untimely Patel’s motion for appointment of counsel.




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D.      The District Court Did Not Abuse Its Discretion by Denying
        Patel’s Motion for Sanctions
        Patel argues that the district court abused its discretion by denying his
motion for sanctions after he demonstrated inconsistencies in the declaration
prepared by the Clinical Director and the statements of the same Clinical
Director included in the Referral Request. Likewise, Patel argues that the
district court abused its discretion by failing to order sanctions against the
Government for conducting a physical examination of him without seeking leave
of the court or informing him that the examination was in preparation for
litigation. We review the district court’s denial of a motion for sanctions for
abuse of discretion. Friends for Am. Free Enter. Ass’n v. Wal-Mart Stores, Inc.,
284 F.3d 575, 577–78 (5th Cir. 2002).
        Although the district court determined that the Clinical Director had
provided false information in either the declaration or the referral request, it
could not determine which document contained the false information. Thus, the
district court did not order sanctions, but instead ordered that the BOP director
receive a copy of its ruling so that it could conduct an inquiry and take any
appropriate action.      If the Clinical Director’s declaration was true and his
statements in the Referral Request false, the Government would not have
violated Rule 11 because the Referral Request was not presented directly to the
district court. We thus find that the district court did not abuse its discretion by
denying Patel’s motion for sanctions on this ground.
        As to his argument that the imposition of Dr. Wolf’s physical examination
warranted sanctions, it appears that Patel failed to file a motion for sanctions
on this ground.       He did file a motion to strike the examination’s resulting
medical report, which the district court denied as moot after denying the
Government’s motion for summary judgment, noting that it would revisit the
issue if the Government relied on the report at a later time. Patel does not


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contend, and the record does not reflect, that the Government ever relied on the
report resulting from the physical examination after the district court’s denial
of summary judgment. We therefore find that the district court did not abuse
its discretion by failing to sanction the Government.
E.      The District Court Did Not Abuse its Discretion by Setting and
        Enforcing a Deadline After which Certain Motions Could Not Be
        Filed
        Patel argues that the district court for the Northern District of Texas
abused its discretion by “imposing a sanction” against him without notice when
it prevented him from filing any additional motions without first obtaining leave
of the court. The district court, however, did not impose sanctions upon Patel;
rather it enforced a scheduling order set by the district court for the Eastern
District of North Carolina, which mandated that the parties file all motions by
April 7, 2008.
        Patel had over two months to file timely motions, and his argument that
the district court failed to provide notice is belied by his renewed motion for
sanctions against the Government, in which he stated he was filing on March 23,
2008 in an effort to comply with the district court’s scheduling order.
Additionally, Patel managed to file a total of eleven motions before the
scheduling order’s deadline. As noted above, “[t]he district court possesses the
inherent power to control its docket.” Marinechance Shipping, Ltd., 143 F.3d at
218. We thus find that the district court for the Northern District of Texas did
not abuse its discretion by enforcing a scheduling order deadline imposed by the
district court for the Eastern District of North Carolina.
F.      The Eastern District of North Carolina Did Not Err by
        Transferring Patel’s Case to the Northern District of Texas
        Patel argues that the district court for the Eastern District of North
Carolina erred by transferring his case to the Northern District of Texas because
the district court for the Eastern District of North Carolina found that it lacked

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subject matter jurisdiction. Accordingly, Patel argues that it did not have the
authority to change venue, and could therefore only return his case to the
Eastern District of Arkansas.
      Contrary to Patel’s arguments, the district court for the Eastern District
of North Carolina did not find that it lacked jurisdiction. Rather, it responded
to Patel’s numerous motions to transfer his case. Because “a district court may
transfer any civil action to any other district or division where it might have
been brought,” 28 U.S.C. § 1404(a), and venue was appropriate in the Northern
District of Texas because Patel’s cause of action arose there, we find that the
Eastern District of North Carolina did not err when it transferred his case to the
Northern District of Texas.
                              III. CONCLUSION
      The discretionary function exception bars Patel’s FTCA suit. Likewise,
none of Patel’s additional arguments suffice to demonstrate that any district
court reversibly erred. We therefore affirm the district court’s dismissal of
Patel’s suit.
      AFFIRMED.




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