Kamal Patel v. USA

Filing

UNPUBLISHED OPINION FILED. [09-10375 Affirmed ] Judge: EHJ , Judge: ECP , Judge: RCO Mandate pull date is 12/03/2010 [09-10375]

Kamal Patel v. USA

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
October 12, 2010 N o . 09-10375 Lyle W. Cayce Clerk

K A M A L K PATEL, P la in t if f ­ A p p e lla n t v. U N IT E D STATES OF AMERICA, D e fe n d a n t ­ A p p e lle e

A p p e a l from the United States District Court for the Northern District of Texas U S D C No. 4:08-cv-00680-Y

B e fo r e JONES, Chief Judge, PRADO, Circuit Judge, and O'CONNOR,* District Judge. P E R CURIAM:* * K a m a l K. Patel, pro se, appeals the district court's dismissal of his suit u n d e r the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671­80.1

*

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 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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**

Dockets.Justia.com

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No. 09-10375 P a t e l filed a complaint alleging that Bureau of Prison ("BOP") officials violated t h e ir own policy statements when they transferred him to various federal prison fa c ilit ie s that did not have the necessary equipment to treat his medical c o n d itio n s . The district court for the Northern District of Texas held that the d is c r e t io n a r y function exception to the FTCA deprived it of subject matter ju r is d ic t io n . On appeal, Patel argues that BOP officials violated non-discretionary BOP r e g u la tio n s , and thus the discretionary function exception cannot shield them fr o m FTCA liability. He also contends that the district court for the Northern D is t r ic t of Texas (1) erred by failing to consider actions by BOP officials o c c u r r in g more than two years before his administrative tort claim; (2) abused it s discretion by denying his request for appointment of counsel as untimely; (3) a b u s e d its discretion by failing to impose sanctions on the Government; and (4) a b u s e d its discretion by preventing him from filing certain motions. Patel also a r g u e s that the district court for the Eastern District of North Carolina lacked ju r is d ic t io n to transfer his case to the Northern District of Texas. B e c a u s e the BOP decisions to transfer Patel involved "an element of ju d g m e n t or choice," United States v. Gaubert, 499 U.S. 315, 322 (1991) (citation o m it t e d ), the district court did not err by finding that the discretionary function e x c e p t io n barred Patel's FTCA suit. Likewise, Patel's additional arguments lack m e r it . 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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No. 09-10375 I . FACTUAL AND PROCEDURAL BACKGROUND A. F a c t u a l Background as Alleged by Patel W h ile incarcerated at Federal Medical Center ("FMC") Fort Worth in 1998, P a t e l was diagnosed with a herniated disc in his neck and prescribed physical t h e r a p y consisting of cervical traction. Before his physical therapy began, BOP o ffic ia ls transferred Patel to a different prison,2 which did not have a cervical t r a c t io n device. Later, while awaiting an MRI and an appointment with a s p e c ia lis t at Federal Corrections Institute ("FCI") El Reno, BOP officials again t r a n s fe r r e d Patel, this time to Federal Transfer Center ("FTC") Oklahoma City. Pursuant to both transfers, BOP officials listed Patel's medical status as "good." I n 2001, while incarcerated at FTC Oklahoma City, Patel ruptured his b ic e p tendon, and an orthopedic surgeon subsequently recommended that Patel r e c e iv e 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 O k la h o m a 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 n o longer possible to repair the ruptured tendon. BOP officials next transferred Patel from FCI Bastrop to FCI Beaumont, w h e r e specialists diagnosed Patel with a compressed nerve in his spine and r e c o m m e n d e d an epidural injection. Prior to the epidural, Patel was transferred t o FCI Big Spring. While at FCI Big Spring, Patel cooperated with the

D e p a r t m e n t of Justice's Office of Inspector General ("OIG") as the OIG c o n d u c t e d investigations into BOP violations of the USA PATRIOT Act. Patel w a s transferred again, this time to FCI Forrest City. The OIG determined that t h e 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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No. 09-10375 O I G 's investigation. At FCI Forrest City, medical staff concluded that they did n o t have the resources to provide Patel with the medical care he needed. B. P r o c e d u r a l Background I n February 2005, Patel filed an FTCA claim in the Northern District of T e x a s challenging the BOP officials' decisions to repeatedly transfer him, a l le g in g that the facilities he arrived at did not have the equipment necessary t o treat his maladies. At the time he filed his complaint, Patel remained

in c a r c e r a t e d at FCI Forrest City, in Arkansas. The Government filed a motion t o dismiss, arguing that Patel failed to file his administrative tort claim within t h e FTCA's two-year statute-of-limitations period. In doing so, the Government c o n s t r u e d Patel's complaint as one alleging the negligent provision of medical s e r v ic e s . Patel responded that he only alleged negligence in the BOP's transfer d e c is io n s and in failing to provide for his care and safe keeping. The district c o u r t granted in part and denied in part the Government's motion, finding that P a t e l filed a timely FTCA claim but holding that Patel could only recover d a m a g e s occurring two years prior to the June 22, 2004 filing of his a d m in is t r a t iv e tort claim. The Government subsequently filed a motion for summary judgment, a r g u in g that Patel failed to provide expert medical testimony to support his c la im s , and he therefore could not prove either the essential elements of a m e d ic a l malpractice claim or one for ordinary negligence. In support, the

G o v e r n m e n t submitted the declaration of the Clinical Director at FCI Forrest C it y (the "Clinical Director") and a report prepared by Dr. F. Gregory Wolf, who in d ic a te d that he conducted a physical examination of Patel. Patel again

e m p h a s iz e d that he only challenged the BOP's transfer decisions, and filed a m o t io n for sanctions under Federal Rules of Civil Procedure 11 and 56(g), c o n t e n d i n g that the Clinical Director's declaration was inconsistent with s t a t e m e n t s that the Clinical Director included in a previous "Medical/Surgical 4

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No. 09-10375 a n d Psychiatric Referral Request" (the "Referral Request"). Patel also filed a m o t io n to strike Dr. Wolf's report, arguing that the Government improperly s u b je c t e d him to a physical examination for purposes of litigation without o b ta in in g court approval under Federal Rule of Civil Procedure 35. The district court denied both the Government's motion for summary ju d g m e n t and Patel's motion for sanctions. The district court rejected the

G o v e r n m e n t 's explanations for the inconsistencies between the Clinical D ir e c t or's declaration and the Referral Request, but declined to impose sanctions a ft e r 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 t o the director of the BOP. The district court also held that the motion to strike w a s moot because it had denied the Government's motion for summary ju d g m e n t , but warned the Government not to rely on Dr. Wolf's report during t h e remainder of the litigation. Patel then filed a second motion for sanctions, w h ic h the district court denied. I n 2006, the district court transferred Patel's case to the Eastern District o f Arkansas because (1) Patel was currently incarcerated in Arkansas at the t im e ; (2) three related claims remained pending in Arkansas; (3) the G o v e r n m e n t 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 a p p o in te d in both Texas and Arkansas, and it would be more efficient to appoint t h e same attorney for all the related cases. The district court for the Eastern D is t r ic t of Arkansas appointed an attorney for Patel and consolidated his case w it h a factually-related case seeking injunctive relief, but, in 2007, transferred t h e consolidated cases to the Eastern District of North Carolina after BOP o ff i c ia ls transferred Patel to a correctional facility there. Patel's Arkansaslic e n s e d attorney withdrew as counsel, and the district court for the Eastern D is t r ic t of North Carolina ordered the North Carolina Prisoner Legal Services 5

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No. 09-10375 I n c . ("NCPLS") to determine whether Patel required appointed counsel. The N C P L S opined that Patel did not need an attorney, and the district court for the E a s te r n 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 la c k of subject matter jurisdiction or, in the alternative, for summary judgment, a r g u in g that the district court had no jurisdiction to hear Patel's case under the d is c r e t io n a r y function exception to the FTCA. The district court for the Eastern D is t r ic t 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 t o the admissibility of evidence at trial), must be filed by April 7, 2008. Untimely motions may be summarily disregard[ed]." Despite filing eleven

a d d it io n a l motions before the April 7 deadline, Patel failed to file an additional m o t io n to appoint counsel until August 29, 2008. Patel subsequently filed several motions seeking to transfer his case out o f the Eastern District of North Carolina, and a motion to sever the FTCA and in ju n c t iv e relief claims. In November 2008, the district court for the Eastern D is t r ic t of North Carolina transferred Patel's consolidated case back to the N o r t h e r n District of Texas because (1) Patel had been transferred out of North C a r o lin a to Pennsylvania, (2) Patel's cause of action arose in the Northern D is t r ic t of Texas, and (3) the documents necessary for the case were located in T e x a s . At that time, Patel had filed at least thirty-five pending motions, two of w h ic h sought to reinstate his previously-filed motion for sanctions. In December 2 0 0 8 , the district court for the Northern District of Texas granted the G o v e r n m e n t 's motion for summary judgment as to all of Patel's claims seeking in ju n c t iv e relief,3 imposed a deadline for filing motions, disregarded all untimely m o t io n s under the Eastern District of North Carolina's scheduling order, and

3

Patel does not appeal this ruling.

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No. 09-10375 lim it e d the parties to filing motions regarding the discretionary function e x c e p t io n 's effect on Patel's FTCA claim. One of these disregarded motions was P a t e l's untimely motion for appointment of counsel. After additional briefing by the parties, the district court granted the G o v e r n m e n t 's motion for summary judgment as to Patel's FTCA case, effectively d is m is s in g Patel's case for lack of subject matter jurisdiction based on the d is c r e t io n a r y function exception to the FTCA. Patel timely appealed. II. ANALYSIS P a t e l's primary argument is that the district court erred by dismissing his s u it pursuant to the discretionary function exception to the FTCA. Additionally, P a t e l argues that the district court erred by limiting its consideration of the BOP o ffic ia ls ' actions to those occurring within two years before he filed his a d m in is t r a t iv e tort claim. Next, Patel contends that the district court abused it s 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 s a n c t io n s on the Government for filing a false declaration and submitting him t o a physical examination for purposes of litigation without securing leave of the c o u r t. Patel next contends that the district court abused its discretion by

p r e v e n t in g him from filing certain motions. Finally, Patel argues that the d is t r ic t court for the Eastern District of North Carolina had no jurisdiction to t r a n s fe r his case to the Northern District of Texas, and therefore his case should b e returned to the Eastern District of Arkansas. We address each argument in tu rn . A. T h e FTCA's Discretionary Function Exception Bars Patel's Suit W e review de novo the district court's dismissal pursuant to Federal Rule o f Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Freeman v. U n ite d 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 7

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No. 09-10375 f a c t u a l allegations as true and consider whether his allegations state a claim s u ffic ie n t to survive a Rule 12(b)(1) motion. Gaubert, 499 U.S. at 327. T h e FTCA is a limited waiver of the United States' sovereign immunity, s e e 28 U.S.C. § 2679(b)(1), and we must strictly construe such waivers, resolving a ll ambiguities in favor of the sovereign. See Lane v. Pena, 518 U.S. 187, 192 (1 9 9 6 ). The FTCA's discretionary function exception provides that sovereign im m u n it y is not waived for any claim "based upon the exercise or performance o r the failure to exercise or perform a discretionary function or duty on the part o f a federal agency or an employee of the Government, whether or not the d is c r e t io n be abused." 28 U.S.C. § 2680(a). We engage in a two-step analysis to determine whether the discretionary fu n c tio n exception applies. Gaubert, 499 U.S. at 322­23. We first ask whether t h e act "involv[es] an element of judgment or choice." Id. at 322 (citation

o m it t e d ). If so, we then ask "whether that judgment is of the kind that the d is c r e t io n a r y function exception was designed to shield." Id. at 322­23 (citation o m it t e d ). The discretionary function exception does not apply if the challenged a c t exceeds the scope of the actor's authority as designated by statute or the C o n s t it u t io n . See Sutton v. United States, 819 F.2d 1289, 1293 (5th Cir. 1987). 1. P a t e l's Allegation that BOP Officials Violated His C o n s t i tu t i o n a l Rights Fails to Defeat the Discretionary F u n c t i o n Exception

P a t e l first argues that BOP officials acted outside the scope of their official d u t ie s because the injuries they caused him by the transfers amounted to d e lib e r a t e indifference in violation of the Eighth Amendment, and were driven b y retaliation in violation of the First Amendment. Patel's argument fails, for t w o reasons. First, Patel relies heavily on Castro v. United States, 560 F.3d 381 (5 t h Cir. 2009), which has since been overturned by the en banc court. See C a s tr o v. United States, No. 07-40416, 2010 WL 2183616 (5th Cir. June 2, 2010).

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No. 09-10375 M o r e significantly, only Patel's complaint, as supplemented by undisputed fa c t s and resolved disputed facts, may be considered in a dismissal of a c o m p la in t 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 a d m in is t r a t iv e tort claim. Additionally, Patel's complaint does not demonstrate t h a t the actions of the BOP officials rise to the level of deliberate indifference in v io la t io n of his Eighth Amendment rights. A prison official acts with deliberate in d iffe r e n c e "only if he knows that inmates face a substantial risk of serious h a r m and disregards that risk by failing to take reasonable measures to abate it ." Farmer v. Brennan, 511 U.S. 825, 839­40 (1994). During the years in q u e s t io n , Patel had been seen by numerous doctors, and at no point in his c o m p la in t or administrative tort claim did he contend that the BOP's placement d e c is io n s were made as an attempt to deny him medical care. See Varnado v. L y n a u g h , 920 F.2d 320, 321 (5th Cir. 1991) (discussing an Eighth Amendment c la im for deliberate indifference under 42 U.S.C. § 1983, and stating " [ u ] n s u c c e s s fu l medical treatment does not give rise to a § 1983 cause of a c t i o n . . . [,] [n]or does [m]ere negligence, neglect or medical malpractice") (c it a t io n s omitted) (some alteration in original). We thus find that Patel has not s u ffic ie n t ly alleged a violation of any constitutional rights in his complaint or a d m in is t r a t iv e tort claim.4 2. T h e BOP Official's Transfer Decisions Involved an Element o f Discretion

P a t e l also argues that BOP officials had no discretion to exclude medical in fo r m a t io n in his transfer documents. He alleges that the BOP officials either n e g lig e n t ly or deliberately left information out of his transfer documents that

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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No. 09-10375 c o u ld have ensured that his transfer to a facility with the capacity to treat his m e d ic a l conditions. Patel alleges that the BOP officials were bound by a policy s t a t e m e n t to include his medical history with any transfer papers, and thus the B O P officials cannot be shielded by the FTCA's discretionary function exception. The policy statement that Patel refers to states "[t]he following items on R e q u e s t for Transfer/Application of Management Variable (EMS 409) shall be c o m p le t e d as described below: . . . (1) Include current, complete, and accurate a v a ila b le information concerning any medical problem that might affect d e s ig n a t io n ." (emphases added). Patel argues that the word "shall" means that t h e BOP officials had no discretion to exclude "current, complete, and accurate in fo r m a t io n " about his medical issues. The Government responds that the c la u s e reading "that might affect designation" confers upon the BOP discretion t o determine which information would affect a transferred inmate's designation. The district court found that the word "might" implied that BOP officials r e q u e s tin g a transfer needed to use discretion in order to determine whether an in m a t e 's medical issues were serious enough to affect the inmate's designation, a n d concluded that the discretionary function exception barred Patel's suit. We agree with the district court. The Supreme Court has held that in o r d e r for the discretionary function exception to apply, the act must simply " in v o lv [e ] an element of judgment or choice." (emphasis added) (alteration in original). Gaubert, 499 U.S. at 322.

Despite the policy statement's

m a n d a t e that certain information "shall" be included, the directive includes an " e le m e n t " of discretion; specifically, whether an inmate's medical condition is s e r io u s enough to "affect designation." Because we must strictly construe the F T C A 's waiver of sovereign immunity in favor of the United States, see Lane, 5 1 8 U.S. at 192, we find that the first Gaubert step is satisfied.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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No. 09-10375 W e now ask "whether that judgment is of the kind that the discretionary fu n c tio n exception was designed to shield." Gaubert, 499 U.S. at 322­23. Our s is t e r circuits have held that decisions regarding the transfers and c la s s ific a t io n s of prisoners generally fall within the discretionary function e x c e p t io n . See, e.g., Santana-Rosa v. United States, 335 F.3d 39, 44 (1st Cir. 2 0 0 3 ); Cohen v. United States, 151 F.3d 1338, 1343­44 (11th Cir. 1998). Using t h e s e cases as guideposts, we find that the judgment at issue in this case "is of t h e kind that the discretionary function exception was designed to shield," G a u b e r t, 499 U.S. at 322­23, and thus hold that the discretionary function e x c e p t io n bars Patel's FTCA claim. 3. T h e Correct BOP Officials Effectuated Patel's Transfers

P a t e l also argues that BOP regulations mandate that a transfer involving a n y inmate who requires medical or psychiatric treatment can only be made by t h e Office of Medical Designations Transport ("OMDT") in Washington, DC, and t h a t the discretionary function exception cannot apply because BOP officials at t h e regional offices made his transfer decisions. As demonstrated by the

G o v e r n m e n t , however, routine, non-medical transfers "are submitted to the R e g io n a l Designator," and not the OMDT. Because Patel has not demonstrated t h a t his transfers were anything other than routine, we find that the BOP o ffic ia ls 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 nondiscretionary 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. 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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No. 09-10375 B. P a t e l Was Limited to Recovering Damages for Claims Arising W it h i n Two Years Before the Filing of His Administrative Tort C la im P a t e l next argues that the district court erred when it determined that it w o u ld not consider any incident occurring more than two years before he filed h is administrative tort claim. He argues that the continuing tort doctrine should a p p ly , which states that "the cause of action is not complete and does not accrue u n t il the tortious acts have ceased." Gen. Universal Sys., Inc. v. HAL, Inc., 500 F .3 d 444, 451 (5th Cir. 2007) (citation and internal quotation marks omitted). The Texas Supreme Court has yet to endorse the continuing tort doctrine, id., a n d we have not considered whether a plaintiff may use the doctrine to recover u n d e r the FTCA for injuries occurring more than two years before a plaintiff file s an administrative tort claim. A s s u m in g , without deciding, that the district court erred by limiting c o n s id e r a t io n of the events at issue to the two years prior to Patel's filing of his a d m in is t r a t iv e tort claim, we hold that Patel is not entitled to relief. Federal R u le of Civil Procedure 61 states that "[a]t every stage of the proceeding, the c o u r t must disregard all errors and defects that do not affect any party's s u b s t a n t ia l rights." Because the district court's examination of events occurring b e y o n d the two year window prior to Patel's administrative tort claim would not a ffe c t the application of the discretionary function exception, we find that any a lle g e d error by the district court would not affect Patel's substantial rights. C. T h e District Court Did Not Abuse Its Discretion by Denying, as U n t i m e ly , Patel's Request for Appointment of Counsel P a t e l next argues that the district court for the Northern District of Texas a b u s e d its discretion by denying his request for counsel after the district court fo r the Eastern District of North Carolina transferred his case. While Patel's c a s e remained pending before the Eastern District of North Carolina, the district c o u r t entered a scheduling order, stating that "all motions of any nature (except 12

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No. 09-10375 t h o s e relating to the admissibility of evidence at trial), must be filed by April 7, 2 0 0 8 . Untimely motions may be summarily disregard[ed]." Patel failed to file h is motion to appoint counsel until August 29, 2008, despite filing eleven a d d it io n a l motions before the April 7 deadline. After the district court for the E a s te r n District of North Carolina transferred his case back to the Northern D is t r ic t of Texas, the district court for the Northern District of Texas dismissed a ll of Patel's motions filed after the Eastern District of North Carolina's s c h e d u lin g deadline, including his motion for appointment of counsel. "A civil rights complainant has no right to the automatic appointment of c o u n s e l"; as such, "[t]he trial court is not required to appoint counsel for an in d ig e n t plaintiff . . . unless the case presents exceptional circumstances." Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982) (internal citations o m it t e d ). Additionally, "[t]he district court possesses the inherent power to c o n t r o l its docket." Marinechance Shipping, Ltd. v. Sebastian, 143 F.3d 216, 218 (5 t h Cir. 1998). Patel has not demonstrated why his "case presents exceptional c ir c u m s t a n c e s ," Ulmer, 691 F.2d at 212; instead, he simply accuses the G o v e r n m e n t of engaging in "many instances of misconduct" and directs us to the fa c t that the district court for the Eastern District of Arkansas briefly, and w it h o u t analysis, appointed him counsel. Upon transfer of his case to the Eastern District of North Carolina, the d is t r ic t court seriously considered Patel's request--going so far as to retain the a d v ic e of the NCPLS--before deciding not to appoint Patel counsel, and the d is t r ic t court for the Northern District of Texas was well within its discretion to e n fo r c e the deadline set by the Eastern District of North Carolina. We therefore fin d that the district court did not abuse its discretion when it denied as u n t im e ly Patel's motion for appointment of counsel.

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No. 09-10375 D. T h e District Court Did Not Abuse Its Discretion by Denying P a t e l's Motion for Sanctions P a t e l argues that the district court abused its discretion by denying his m o t io n for sanctions after he demonstrated inconsistencies in the declaration p r e p a r e d by the Clinical Director and the statements of the same Clinical D ir e c t o r included in the Referral Request. Likewise, Patel argues that the d is t r ic t court abused its discretion by failing to order sanctions against the G o v e r n m e n t for conducting a physical examination of him without seeking leave o f the court or informing him that the examination was in preparation for lit ig a t io n . We review the district court's denial of a motion for sanctions for a b u s e of discretion. Friends for Am. Free Enter. Ass'n v. Wal-Mart Stores, Inc., 2 8 4 F.3d 575, 577­78 (5th Cir. 2002). Although the district court determined that the Clinical Director had p r o v id e d false information in either the declaration or the referral request, it c o u ld not determine which document contained the false information. Thus, the d is t r ic t court did not order sanctions, but instead ordered that the BOP director r e c e iv e a copy of its ruling so that it could conduct an inquiry and take any a p p r o p r ia te action. If the Clinical Director's declaration was true and his

s t a t e m e n t s in the Referral Request false, the Government would not have v io la t e d Rule 11 because the Referral Request was not presented directly to the d is t r ic t court. We thus find that the district court did not abuse its discretion by d e n y in g Patel's motion for sanctions on this ground. As to his argument that the imposition of Dr. Wolf's physical examination w a r r a n te d sanctions, it appears that Patel failed to file a motion for sanctions o n this ground. He did file a motion to strike the examination's resulting

m e d ic a l report, which the district court denied as moot after denying the G o v e r n m e n t's motion for summary judgment, noting that it would revisit the is s u e if the Government relied on the report at a later time. Patel does not

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No. 09-10375 c o n t e n d , and the record does not reflect, that the Government ever relied on the r e p o r t resulting from the physical examination after the district court's denial o f summary judgment. We therefore find that the district court did not abuse it s discretion by failing to sanction the Government. E. T h e District Court Did Not Abuse its Discretion by Setting and E n f o r c i n g a Deadline After which Certain Motions Could Not Be F ile d P a t e l argues that the district court for the Northern District of Texas a b u s e d its discretion by "imposing a sanction" against him without notice when it prevented him from filing any additional motions without first obtaining leave o f the court. The district court, however, did not impose sanctions upon Patel; r a t h e r it enforced a scheduling order set by the district court for the Eastern D is t r ic t of North Carolina, which mandated that the parties file all motions by A p r il 7, 2008. Patel had over two months to file timely motions, and his argument that t h e district court failed to provide notice is belied by his renewed motion for s a n c t io n s against the Government, in which he stated he was filing on March 23, 2 0 0 8 in an effort to comply with the district court's scheduling order. Additionally, Patel managed to file a total of eleven motions before the s c h e d u lin g order's deadline. As noted above, "[t]he district court possesses the in h e r e n t power to control its docket." Marinechance Shipping, Ltd., 143 F.3d at 2 1 8 . We thus find that the district court for the Northern District of Texas did n o t abuse its discretion by enforcing a scheduling order deadline imposed by the d is t r ic t court for the Eastern District of North Carolina. F. T h e Eastern District of North Carolina Did Not Err by T r a n s f e r r i n g Patel's Case to the Northern District of Texas P a t e l argues that the district court for the Eastern District of North C a r o lin a erred by transferring his case to the Northern District of Texas because t h e district court for the Eastern District of North Carolina found that it lacked 15

Case: 09-10375

Document: 00511259808

Page: 16

Date Filed: 10/12/2010

No. 09-10375 s u b je c t matter jurisdiction. Accordingly, Patel argues that it did not have the a u t h o r it y to change venue, and could therefore only return his case to the E a s te r n District of Arkansas. Contrary to Patel's arguments, the district court for the Eastern District o f North Carolina did not find that it lacked jurisdiction. Rather, it responded t o Patel's numerous motions to transfer his case. Because "a district court may t r a n s fe r any civil action to any other district or division where it might have b e e n brought," 28 U.S.C. § 1404(a), and venue was appropriate in the Northern D is t r ic t of Texas because Patel's cause of action arose there, we find that the E a s te r n District of North Carolina did not err when it transferred his case to the N o r t h e r n District of Texas. III. CONCLUSION T h e discretionary function exception bars Patel's FTCA suit. Likewise, n o n e of Patel's additional arguments suffice to demonstrate that any district c o u r t reversibly erred. We therefore affirm the district court's dismissal of P a t e l's suit. A F F IR M E D .

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