Kelvin Spotts, et al v. USA

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Kelvin Spotts, et al v. USA

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REVISED AUGUST 16, 2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
July 30, 2010 N o . 09-41039 Lyle W. Cayce Clerk

K E L V I N ANDRE SPOTTS; BILLY AGUERO; MARCUS T. ARNOLD; B A E N A JOSE MENDOZA; LLOYD BATTLES; ET AL P la in t iffs - Appellants v. U N IT E D STATES OF AMERICA D e fe n d a n t - Appellee

A p p e a l from the United States District Court fo r the Eastern District of Texas

B e fo r e JONES, Chief Judge, and KING and HAYNES, Circuit Judges. K I N G , Circuit Judge: T h e plaintiffs­appellants, 453 present and former inmates of the Federal C o r r e c t io n a l Complex, United States Penitentiary, in Beaumont, Texas, appeal t h e district court's dismissal of their claims under the Federal Tort Claims Act (F T C A ) against the United States in connection with the decision made by G e r a r d o Maldonado, the Regional Director of the South Central Region of the F e d e r a l Bureau of Prisons, not to evacuate the Penitentiary in the aftermath of

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No. 09-41039 H u r r ic a n e Rita.1 The plaintiffs also challenge the district court's denial of leave t o amend their complaint to add Bivens claims against individual Penitentiary o ffic ia ls . For the reasons discussed below, we affirm. I. BACKGROUND

H u r r ic a n e Rita, a Category 3 storm, came ashore on September 24, 2005, s h ift in g eastward in the final hours before landfall away from Houston, Texas, a n d toward Beaumont, Texas, which sustained a direct hit. The Federal

C o r r e c t io n a l Complex in Beaumont, Texas, has three units: a low-security F e d e r a l Correctional Institution; a medium-security Federal Correctional I n s t it u t io n ; and a high-security United States Penitentiary. Inmates from the lo w - and medium-security facilities were evacuated before or shortly after the h u r r ic a n e 's arrival. The plaintiffs in this suit, inmates from the high-security P e n it e n t ia r y , were not evacuated--a decision that Maldonado made the day a ft e r the storm. Hurricane Rita left Beaumont without electricity, water, or gasoline, and t h e city was declared to be part of a nine-county disaster area. The storm left t h e Federal Correctional Complex with significant damage, rendering its e m e r g e n c y generator inoperable, sweeping away large portions of its roof, and le a v in g it without a supply of potable water. The plaintiffs' evidence shows that P e n it e n t ia r y officials attempted early on to establish a temporary power grid but t h a t their efforts were frustrated by unexpected setbacks. Emergency

g e n e r a t o r s were delivered to the Penitentiary shortly after the storm, but w it h o u t sufficient heavy wire to establish a grid. This wire was not readily
The plaintiffs also initially challenged Maldonado's decision not to evacuate before the arrival of Hurricane Rita, but stated at oral argument that they are no longer pursuing this claim.
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No. 09-41039 a v a ila b le , requiring Penitentiary officials to place a special order that took a d d it io n a l time to fill. According to the plaintiffs' allegations, the Penitentiary w a s without electrical power for 36 days. T h e significant discomfort caused by the lack of electricity was aggravated b y a heat wave that swept the region in the days after the storm. The

t e m p e r a t u r e exceeded 100 degrees Fahrenheit on sixteen of the days that the fa c ilit y was without electricity and exceeded 90 degrees Fahrenheit on an a d d ition a l seven. Inside the Penitentiary, the temperature was sometimes much h ig h e r . Floor wax melted; the cement and brick walls sweated; within a few d a y s after the storm, the moisture developed into a slimy black mold. Without a working air conditioner, the air inside the prisoners' cells was stagnant. The in m a t e s spent their nights in pitch black darkness, without the ability to access e le c t r ic emergency alarms. The inmates allege that during the first three days after the storm, they r e m a in e d locked in their cells. Inmates with chronic ailments did not have a c c e s s to medical care--asthmatics could not access inhaler refills, diabetics c o u ld not get their insulin. During these first days, the inmates allege that they " r e c e iv e d no food at all from the guards." The guards did distribute water, but it was "colored brown with some type of matter flowing in it," and smelled foul. The plaintiffs contend that they drank this water in any case because they were s o dehydrated from the heat. On September 26, 2005, the prisoners received w r it t e n confirmation in a memorandum from Timothy Outlaw, the Warden of t h e Beaumont complex, that the Penitentiary's water source had been declared n o n -p o ta b le and "should not be ingested under any circumstance."

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No. 09-41039 T h e plaintiffs allege that when they first received a meal, four days after t h e storm, the food provided was sandwiches made with moldy bread and spoiled m e a t and cheese or peanut butter, and that from that point they received no m o r e than two sandwiches daily until power was restored. Around the same t im e that the plaintiffs first received food, they began receiving one liter of s a n it a r y water per day, though they contend that this was not sufficient to r e p le n is h fluids lost from the heat. The inmates allege that they were not given the opportunity to shower u n t il October 8, 2005, fourteen days after the storm. They allege that the s h o w e r water had a brownish color and offensive smell, and that the water im m e d ia t e ly caused skin problems, such as open wound sores; peeling skin with p u s ; itching, burning rashes; and boils. The inmates did not receive medicine for t h e s e issues. No clean clothes were available, so the inmates were required to p u t their dirty clothes back on after showering. The plaintiffs allege that they could not flush their toilets during the e n tir e 36-day period, and that the odor of urine and feces in their cells was o v e r p o w e r in g . There was little toilet paper and no way to wash their hands. When the toilets became too full, the guards passed out plastic bags in which the p r is o n e r s could relieve themselves. Filled bags were collected only at irregular in t e r v a ls .2

Although in this procedural posture we do not make any findings as to the credibility of the plaintiffs' allegations, we note that certain exhibits attached to the plaintiffs' own filings in the district court contradict some of the allegations raised in this case. For example, Outlaw's September 26, 2005, memorandum to prisoners regarding non-potable water added that although the water should not be ingested, it could otherwise "be utilized for routine daily usage," including bathing, washing clothing, and "drain[ing] washbasins of bodily waste." The implication of this memorandum is that the prisoners in fact had access to water in their cells for at least the limited purpose of flushing toilets. The plaintiffs have not attempted to explain

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No. 09-41039 T h e plaintiffs allege that they suffered physical injuries as the result of t h e s e events, including episodes of high stress; high blood pressure and heart d is e a s e ; respiratory and lung disorders (from alleged exposure to ammonia from u r in e and feces and to mold); heat exhaustion and heat stroke; dehydration and m a ln u t r it io n ; Heliobactor Pylori (H. Pylori) infection (due to alleged exposure to h u m a n waste); diarrhea (due to alleged e-coli and salmonella exposure); blood s t r e a m infections; sleep deprivation; muscle atrophy (due to inactivity during lo c k d o w n ); worsening of existing medical conditions; constipation; and pain from h un ger. They also allege mental injuries, including post-traumatic stress

d iso r d e r ; suicidal tendencies; depression; insomnia; and delusions. The plaintiffs a ls o allege, without elaboration, that two inmates died as a result of these c o n d itio n s . T h e plaintiffs sued under the FTCA alleging that the decision not to e v a c u a t e the inmates after the storm gave rise to the state-law torts of n e g lig e n c e , recklessness, deliberate indifference, intentional infliction of e m o t io n a l distress, malice, and wrongful death.3 When the district court

why this memorandum, to which they have cited heavily for other purposes, does not controvert certain of their allegations. The plaintiffs also attached Penitentiary logs indicating that by September 27, 2005, three days after the storm, inmates "were given one floor fan and one disinfectant per cell"; inmates were released "out into the pod for 1 1/2 hours"; a Mrs. Baird's bread truck had arrived at the facility; the Penitentiary anticipated delivery of 93,000 half-pint bottles of water every four days starting on September 30, 2005, and every three days after October 7, 2005; and 11 medical relief staff had arrived with nurses and mid-level providers. The plaintiffs have not addressed the apparent inconsistencies between their allegations and the actions documented in the logs they attach. The plaintiffs also brought a claim under the FTCA for an Eighth Amendment violation as a "constitutional tort." Constitutional torts, of course, do not provide a proper predicate for an FTCA claim. See FDIC v. Meyer, 510 U.S. 471, 478 (1994) (holding that a plaintiff'`s FTCA claim must be based on a state-law tort claim and cannot be based on a federal constitutional or statutory claim against the Government). They do not reurge the
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No. 09-41039 d is m is s e d those claims under Federal Rule of Civil Procedure 12(b)(1) for lack o f subject matter jurisdiction, the plaintiffs sought leave to file a Fourth A m e n d e d Complaint that raised substantially the same claims in an action a g a in s t individual Penitentiary officers under Bivens v. Six Unknown Agents of th e Federal Bureau of Narcotics, 403 U.S. 388 (1971). The district court adopted t h e magistrate judge's recommendation that leave to file the amended complaint u n d e r Federal Rule of Civil Procedure 15 be denied. The magistrate judge r e a s o n e d that leave would be futile because the Bivens claims were time-barred. The plaintiffs appeal both the dismissal of their FTCA claims and the denial of le a v e to amend. II. STANDARD OF REVIEW

W e review de novo the district court's order granting the Government's m o t io n to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of s u b je c t matter jurisdiction. St. Tammany Parish, ex rel. Davis v. Fed.

E m e r g e n c y Mgmt. Agency, 556 F.3d 307, 315 (5th Cir. 2009). "In our de novo r e v ie w . . . , we apply the same standard as does the district court." Wagstaff v. U .S . Dep't of Educ., 509 F.3d 661, 663 (5th Cir. 2007) (internal quotation marks o m it t e d ). In applying Rule 12(b)(1), the district court "has the power to dismiss fo r lack of subject matter jurisdiction on any one of three separate bases: (1) the c o m p la in t alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the c o u r t's resolution of disputed facts." St. Tammany Parish, 556 F.3d at 315 (in t e r n a l quotation marks omitted). "Here, the district court did not resolve any

Eighth Amendment as an FTCA predicate on appeal.

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No. 09-41039 d is p u t e d facts,[4 ] so we, as did the district court, consider the allegations in the p la in t iff's complaint as true." Id. (internal quotation marks omitted). "[O]ur r e v i e w is limited to determining whether the district court's application of the la w is correct and, to the extent its decision [was] based on undisputed facts, w h e t h e r those facts are indeed undisputed." Id. (internal quotation marks o m it t e d ). We then ask if dismissal was appropriate. Id. A lt h o u g h we generally review a district court's denial of leave to amend fo r abuse of discretion, where, as here, the district court's sole reason for denying s u c h an amendment is futility, "we must scrutinize that decision somewhat more c lo s e ly , applying a de novo standard of review similar to that under which we r e v ie w a dismissal under Rule 12(b)(6)." Wilson v. Bruks­Klockner, Inc., 602 F .3 d 363, 368 (5th Cir. 2010); see also Stripling v. Jordan Prod. Co., LLC, 234 F .3 d 863, 872­73 (5th Cir. 2000). III. THE FTCA CLAIMS

T h e FTCA waives sovereign immunity and permits suit against the United S t a te s for claims sounding in state tort law for money damages. 28 U.S.C. § 2674 (waiving sovereign immunity to make the Government liable "in the same m a n n e r and to the same extent as a private individual under like c ir c u m s t a n c e s " ). It provides district courts with jurisdiction over monetary c la im s against the Government for the negligent or wrongful acts of its

The plaintiffs contend that the district court and magistrate judge did resolve disputed facts by citing certain disputed statements from a declaration by Maldonado that the Government submitted as an exhibit to its motion to dismiss. But there is no evidence that the district court or magistrate judge relied upon Maldonado's declaration in reaching their determinations, or that the declaration was relevant or necessary to their determinations. See Spotts v. United States, 1:08-cv-376, 2009 WL 3150872, at *3 (E.D. Tex. Sept. 26, 2009). In any event, we do not rely upon Maldonado's declaration in our de novo review, instead taking the plaintiffs' allegations as true.

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No. 09-41039 e m p lo y e e s "where the United States, if a private person, would be liable to the c la im a n t in accordance with the law of the place where the act or omission o c c u r r e d ." 28 U.S.C. § 1346(b)(1). The liability of the United States under the FTCA, however, is subject to v a r io u s exceptions contained in 28 U.S.C. § 2680, including the "discretionary fu n c tio n " exception. See United States v. Gaubert, 499 U.S. 315, 322 (1991). The d i s c r e t io n a r y function exception withdraws the FTCA's waiver of sovereign im m u n it y in situations in which, although a government employee's actions may h a v e been actionable under state tort law, those actions were required by, or w e r e within the discretion committed to, that employee under federal statute, r e g u la tio n , or policy: T h e provisions of this chapter and section 1346(b) of this title shall n o t apply to[ a]ny claim based upon an act or omission of an e m p lo y e e of the Government, exercising due care, in the execution o f a statute or regulation, whether or not such statute or regulation b e valid, or based upon the exercise or performance or the failure to e x e r c is e or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not t h e discretion involved be abused. 2 8 U.S.C. § 2680(a). The Government contends that the discretionary function e x c e p t io n applies to the challenged decision in this case because in deciding not t o evacuate after the storm, Maldonado was operating within the bounds of the d is c r e t io n committed to him under 18 U.S.C. § 4042(a), which requires the F e d e r a l Bureau of Prisons to provide for the safekeeping, care, and subsistence o f all federal prisoners, but does not indicate the manner in which the duty must b e fulfilled.5
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The district court concluded that the discretionary function

Section 4042(a) provides:

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No. 09-41039 e x c e p t io n deprived it of subject matter jurisdiction and granted the G o v e r n m e n t 's motion to dismiss under Rule 12(b)(1) on that basis. The plaintiffs a p p e a le d , arguing that the discretionary function exception should not apply b e c a u s e Maldonado violated nondiscretionary duties imposed by other statutes, r e g u la tio n s , and policies in deciding not to evacuate after the storm. T o properly evaluate the plaintiffs' contentions, some exegesis of the o p e r a t io n of the discretionary function exception is necessary. The Supreme C o u r t has developed a two-part test for determining whether agency conduct q u a lifie s as a discretionary function or duty. See Gaubert, 499 U.S. at 322­23. Under the first prong, the conduct must be a "matter of choice for the acting e m p lo y e e ." Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531, 536 (1988). "The exception covers only acts that are discretionary in nature, acts that `in v o lv [e ] an element of judgment or choice.'" Gaubert, 499 U.S. at 322 (quoting B e r k o v itz , 486 U.S. at 536). Thus, "`it is the nature of the conduct, rather than t h e status of the actor' that governs whether the exception applies." Id. (quoting U n ite d States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines),

(a) In general.--The Bureau of Prisons, under the direction of the Attorney General, shall-- (1) have charge of the management and regulation of all Federal penal and correctional institutions; (2) provide suitable quarters and provide for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the United States, or held as witnesses or otherwise; (3) provide for the protection, instruction, and discipline of all persons charged with or convicted of offenses against the United States; (4) provide technical assistance to State and local government in the improvement of their correctional systems; and (5) provide notice of release of prisoners in accordance with subsections (b) and (c). 18 U.S.C. § 4042(a).

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No. 09-41039 4 6 7 U.S. 797, 813 (1984)). If a statute, regulation, or policy leaves it to a federal a g e n c y to determine when and how to take action, the agency is not bound to act in a particular manner and the exercise of its authority is discretionary. See id. a t 329. "The requirement of judgment or choice is not satisfied" and the d is c r e t io n a r y function exception does not apply, however, "if a `federal statute, r e g u la tio n , or policy specifically prescribes a course of action for an employee to fo llo w ,' because `the employee has no rightful option but to adhere to the d ir e c t iv e .'" Id. at 322 (quoting Berkovitz, 486 U.S. at 536). In other words, the d is c r e t io n a r y function exception does not apply if the challenged actions in fact v io la t e d a federal statute, regulation, or policy. See id. at 324 ("If the employee v io la t e s [a] mandatory regulation, there will be no shelter from liability because t h e r e is no room for choice and the action will be contrary to policy."); Berkovitz, 4 8 6 U.S. at 547 ("[I]f the [agency]'s policy did not allow the official who took the ch a llen g ed action to [act] on the basis of policy considerations[,] the discretionary fu n c tio n exception does not bar the claim."). As the circuits have concluded, the r e a s o n for this rule is obvious--a federal employee cannot be operating within h is discretion if he is in fact violating a nondiscretionary policy. Our court has e x p la in e d : J u s t because the discretionary function exception would generally s h ie ld the government from FTCA liability otherwise arising from [a ] policy decision, it does not follow that the government is a u t o m a tic a lly shielded from such liability when the acts of the p a r t ic u la r agents seeking to implement that policy violate another fe d e r a l law, regulation, or express policy. Actions taken to carry out a discretionary policy must be taken with sufficient caution to e n s u r e that, at a minimum, some other federal law is not violated in the process. 10

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No. 09-41039 J o h n s o n v. Sawyer, 980 F.2d 1490, 1503 (5th Cir. 1992), vacated on other g r o u n d s , 47 F.3d 716 (5th Cir. 1995). Under the second prong of the test, "even `assuming the challenged c o n d u c t involves an element of judgment,'" and does not violate a n o n d is c r e t io n a r y duty, we must still decide whether the "`judgment is of the kind t h a t the discretionary function exception was designed to shield.'" Gaubert, 499 U .S . at 322­23 (quoting Berkovitz, 486 U.S. at 536); see also Varig Airlines, 467 U .S . at 813. "Because the purpose of the exception is to `prevent judicial "secondg u e s s in g " of legislative and administrative decisions grounded in social, e c o n o m ic , and political policy through the medium of an action in tort,' when p r o p e r ly construed, the exception `protects only governmental actions and d e c is io n s based on considerations of public policy.'" Gaubert, 499 U.S. at 323 (q u o tin g Berkovitz, 486 U.S. at 537; Varig Airlines, 467 U.S. at 814 (internal c it a t io n omitted)). In this regard, "if a regulation allows the employee discretion, t h e very existence of the regulation creates a strong presumption that a d iscretio n a r y act authorized by the regulation involves consideration of the same p o lic ie s which led to the promulgation of the regulations." Id. at 324. The plaintiffs contend that neither prong of the Berkovitz test is satisfied in this case. They contend that prong one is not satisfied because Maldonado's d e c is io n not to evacuate violated certain nondiscretionary statutory and policy d u t ie s . They contend that prong two is not satisfied because the decision not to e v a c u a t e was not a policy judgment or susceptible to policy analysis. Each of t h e s e contentions is discussed in turn. We note that the plaintiffs bear the b u r d e n of showing Congress's unequivocal waiver of sovereign immunity. See K o k k o n e n v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). At the

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No. 09-41039 m o t io n to dismiss stage, this includes pleading facts that facially allege matters o u ts id e of the discretionary function exception. St. Tammany Parish, 556 F.3d a t 315 n.3. A. P r o n g One: Whether the Decision Not to Evacuate Violated N o n d i s c r e t i o n a r y Duties T h e plaintiffs do not dispute that Maldonado's decision not to evacuate fell w it h in the bounds of discretion committed to him for the administration of p r is o n s under 18 U.S.C. § 4042(a). They contend, however, that the Eighth A m e n d m e n t , the Safe Drinking Water Act, and various policies of the Federal B u r e a u of Prisons imposed nondiscretionary duties that were violated by the d e c is io n not to evacuate.6 In evaluating these arguments, we accept arguendo t h e plaintiffs' contention that to constrain Maldonado's discretion in this case, t h e statute, regulation, or policy at issue need not specifically require e v a c u a tio n , but instead might simply impose other nondiscretionary

d u t ie s -- s u c h as duties to provide certain living standards to inmates--that M a ld o n a d o would have violated in deciding not to evacuate. 1. T h e Eighth Amendment

T h e plaintiffs argue on appeal that Maldonado's decision not to evacuate v io la t e d the Eighth Amendment's ban on cruel and unusual punishment, and t h a t this constitutional violation precludes the application of the discretionary fu n c tio n exception. This court has not yet determined whether a constitutional v io la t io n , as opposed to a statutory, regulatory, or policy violation, precludes the a p p lic a t io n of the discretionary function exception. See Castro v. United States,

An "Adverse Weather Contingency Plan" for the Beaumont facility imposed certain nonmandatory duties on the Penitentiary officials, but the plaintiffs do not allege on appeal that the officials' decision not to evacuate violated any of these duties.

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No. 09-41039 6 0 8 F.3d 266 (5th Cir. 2010). We need not decide the issue here, however, b e c a u s e we conclude that the plaintiffs waived this argument by failing to raise it in the district court. W e observe, as the Government emphasized at oral argument, that a lt h o u g h the plaintiffs' pleadings asserted that the officials' conduct of the P e n it e n t ia r y in the aftermath of the storm was "cruel and unusual" and t h e r e fo r e a "constitutional tort" actionable under the FTCA,7 the plaintiffs did n o t plead, and never argued to the district court, that the Eighth Amendment p r e c lu d e d the application of the discretionary function exception. Even in their o b je c t io n s to the magistrate judge's report and recommendations, in which the p la in t iffs cited numerous federal statutory and regulatory requirements that t h e y contended precluded the application of the discretionary function exception, t h e y nowhere cited the Eighth Amendment for the same. The plaintiffs'

a r g u m e n t that the Eighth Amendment precluded the operation of the d is c r e t io n a r y function exception appeared for the first time in their appellate b r ie fin g , where it became virtually the centerpiece of the appeal. The plaintiffs h a v e not explained why they did not raise this argument earlier. T o state a claim under the FTCA, a plaintiff has the burden of stating a c la im for a state-law tort and establishing that the discretionary function e x c e p t io n does not apply. St. Tammany Parish, 556 F.3d at 315 n.3. The p la in t iff s never raised their present Eighth Amendment argument when the d is t r ic t court was evaluating the merits of their FTCA claim. By failing to plead

Such claims are not actionable under the FTCA. As noted above, a constitutional violation does not provide a proper predicate for an FTCA claim. See FDIC v. Meyer, 510 U.S. at 478 (holding that a plaintiff's FTCA claim must be based on a state-law tort claim and cannot be based on a federal constitutional or statutory claim against the Government).

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No. 09-41039 o r otherwise argue to the district court that the alleged Eighth Amendment v io la t io n precluded the application of the discretionary function exception, the p la in t iffs have waived this contention on appeal. See, e.g., Lemaire v. La. Dep't o f Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007) ("[A]rguments not raised b e fo r e the district court are waived and cannot be raised for the first time on a p p e a l." ); Tex. Comm. Energy v. TXU Energy, Inc., 413 F.3d 503, 510 (5th Cir. 2 0 0 5 ). 2. T h e Safe Drinking Water Act

T h e plaintiffs also contend that the decision not to evacuate after the s t o r m violated nondiscretionary duties imposed by the Safe Drinking Water Act, 4 2 U.S.C. §§ 300f et seq., which sets out national drinking water regulations for p u b lic water systems in each state. Among other requirements, the Act imposes m a x im u m permissible levels for certain drinking water contaminants. As a m a t t e r of Bureau of Prisons policy, under Program Statement 1600.08, federal p r is o n officials are required to follow the provisions of the Safe Drinking Water A ct. W e first note that the plaintiffs have not, in the district court or in this c o u r t , specified which requirements of the Safe Drinking Water Act the c o n d itio n s at the Penitentiary failed to meet. The plaintiffs' pleadings and b r ie fin g only allege, conclusorily, that Maldonado's decision as to whether or not t o evacuate was constrained by nondiscretionary duties imposed by the Safe D r in k in g Water Act. They do not state which provisions of the Act, or

r e g u la tio n s promulgated under the Act, were violated by that decision. These v a g u e allegations, without more, arguably do not satisfy the plaintiffs' burden

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No. 09-41039 o f pleading facts that allege conduct outside the discretionary function exception. See St. Tammany Parish, 556 F.3d at 315 n.3.8 I n any event, the plaintiffs' contention that the Safe Drinking Water Act im p o s e d nondiscretionary duties that were contravened by the decision not to e v a c u a t e lacks merit. The Safe Drinking Water Act delegates primary

e n fo r c e m e n t responsibility to the individual states, provided that the E n v ir o n m e n t a l Protection Agency's Administrator has certified the state as m e e t in g the conditions prescribed by 42 U.S.C. § 300g­2 and the regulations p r o m u lg a t e d under that statute. Texas has obtained such certification.9 Texas l a w provides a defense against water quality enforcement actions in c ir c u m s t a n c e s of natural disasters. TEX. WATER CODE ANN. § 7.251 (West 2008) (" I f a person can establish that an event that would otherwise be a violation of a statute within the commission's jurisdiction . . . was caused solely by an act of G o d , war, strike, riot, or other catastrophe, the event is not a violation of that s t a t u t e , rule, order, or permit."). In the aftermath of Hurricane Rita, on

S e p t e m b e r 27, 2005, the Texas Commission on Environmental Quality invoked § 7.251 and issued a Regulatory Guidance document, which provided that "all r u le s and regulations that may inhibit or prevent prompt response to this threat

The plaintiffs contend that they filed evidence supporting a finding that the Safe Drinking Water Act was violated as exhibits to a motion for summary judgment filed in the district court. But that motion was never resolved, resolution having been stayed pending the district court's decision on the motion to dismiss. Furthermore, although some of these exhibits describe problems with water quality at the Penitentiary in the immediate aftermath of the storm, the plaintiffs again do not explain which provisions of the Safe Drinking Water Act are implicated by these problems. See Tex. Comm'n on Envt'l Quality, Public Water Supply Supervision Program, at http://www.tceq.state.tx.us/permitting/water_supply/pdw/pwss.html (last visited June 22, 2010).
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No. 09-41039 a r e suspended for the duration of the incident." Because the nondiscretionary d u t ie s otherwise imposed by the Safe Water Drinking Act were suspended in the a ft e r m a t h of the hurricane, the plaintiffs cannot rely on these duties as bases for c o n s t r a in in g Maldonado's discretion. 3. P r o g r a m Statement 1290.04

F in a lly , the plaintiffs contend that the decision not to evacuate after H u r r ic a n e Rita violated nondiscretionary policy duties imposed by Bureau of P r is o n s Program Statement 1290.04, titled "Correctional Statements and A c c r e d it a t io n ." Program Statement 1290.04 requires federal correctional

in s t it u t io n s to obtain accreditation from the American Correctional Association (A C A ), a private, nonprofit organization. The ACA will grant accreditation if the correctio n a l institution meets a certain number of mandatory and nonmandatory s t a n d a r d s promulgated by the ACA. Full compliance with nonmandatory

s t a n d a r d s is not necessary to obtaining accreditation. See AM. CORRECTIONAL A SS'N, STANDARDS FOR ADULT CORRECTIONAL INSTITUTIONS xviii (4th ed. 2003). Throughout their briefing, the plaintiffs cite to a superseded version of this p u b lic a t io n . The current, 2003 version sets out the standards that were In the

a p p l ic a b le when Hurricane Rita made landfall in September 2005.

c u r r e n t edition, the standards have been renamed "Expected Practices" and have b e e n renumbered. In discussing the standards the plaintiffs have cited, we refer t o both the superseded and renumbered versions. P rog ra m Statement 1290.04 sets out the requirement of ACA

a c c r e d it a t io n ; the time frame for obtaining accreditation; the circumstances u n d e r which the time for accreditation may be extended or waived; procedures fo r annual recertification; and the methods through which compliance will be

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No. 09-41039 m o n it o r e d and audited. It does not set out the particular mandatory and

n o n m a n d a t o r y standards that the ACA considers in granting accreditation, nor d o e s it incorporate them by reference. The plaintiffs do not allege that

M a ld o n a d o 's decision not to evacuate after Hurricane Rita resulted in a failure t o obtain accreditation or recertification for the Penitentiary. They therefore h a v e not alleged that Maldonado's decision violated nondiscretionary duties im p o s e d by Program Statement 1290.04. I n any event, the majority of the ACA standards that the plaintiffs allege t o have been violated are nonmandatory.1 0 And as to the mandatory statements t h a t the plaintiffs allege were violated, none imposes duties that were violated b y the decision not to evacuate. The plaintiffs cite Expected Practice 4-4332 (fo r m e r ly Standard 3-4313), which requires institutions to "provide[ ] for the c o n t r o l of vermin and pests," as evidence that the Penitentiary officials were r e q u ir e d to remediate the mold that grew on the Penitentiary walls in the damp a ft e r m a t h of the storm. But the plaintiffs do not cite a dictionary definition or o t h e r w is e explain how mold qualifies as a "vermin" or "pest." The plaintiffs next

See, e.g., Expected Practice 4-4216 (formerly Standard 3-4204) (prison should possess "equipment necessary to maintain essential lights, power, and communications in an emergency"); Expected Practice 4-4328 (formerly Standard 3-4309) (prison should serve at least three meals per day, two of them hot); Expected Practice 4-4340 (formerly Standard 34321) (prison should provide freshly-laundered sheets, pillows, pillowcases, and towels at least weekly); Expected Practice 4-4342 (formerly Standard 3-4324) (prison should provide personal hygiene items such as toilet paper); Expected Practice 4-4137 (formerly Standard 3-4132) (prison should provide 24-hour access to toilets and hand-washing); Expected Practice 4-4138 (formerly Standard 3-4133) (prison should provide operable wash basins with hot and cold running water); Expected Practice 4-4139 (formerly Standard 3-4134) (prison should provide operable showers with hot and cold running water); Expected Practice 4-4152 (formerly Standard 3-4145) (prison should maintain indoor air circulation of 10 cubic feet of fresh or recirculated filtered air per occupant); Expected Practice 4-4153 (formerly Standard 3-4146) (prison should maintain indoor living temperatures appropriate for the season).

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No. 09-41039 c it e Expected Practice 4-4330 (formerly Standard 3-4311), which requires an in s t it u t io n 's potable water to be "in compliance with jurisdictional laws and r e g u la tio n s ," and contend that under this Expected Practice, the Penitentiary o ffic ia ls were required to comply with the provisions of the Safe Drinking Water A c t . But, as discussed above, the requirements of the Safe Drinking Water Act w e r e suspended by law in the aftermath of the storm. Finally, the plaintiffs cite E x p e c t e d Practice 4-4344 (formerly Standard 3-4331), which requires that " [u ]p o n arrival at the facility, all offenders [be] informed about how to access h e a lt h services and the grievance system." There is no allegation that the P e n it e n t ia r y officials failed to inform inmates about health system access. In s u m , Maldonado's decision not to evacuate did not violate any nondiscretionary d u t ie s imposed by the standards that the plaintiffs cite. The parties agree that in deciding not to evacuate after the storm, M a ld o n a d o was acting within the discretion accorded by 18 U.S.C. § 4042(a). The plaintiffs have not pointed to any nondiscretionary duties that were violated b y the exercise of this discretion. Accordingly, the decision meets the first prong o f the Berkovitz test. B. P r o n g Two: Whether the Decision Not to Evacuate Was "Based on C o n s id e r a t i o n s of Public Policy" U n d e r the second prong of the Berkovitz test, we agree with the district c o u r t that Maldonado's decision not to evacuate the Penitentiary in the a ft e r m a t h of Hurricane Rita was the type of public policy consideration that the d is c r e t io n a r y function exception shields from judicial scrutiny. See Freeman v. U n i t e d States, 556 F.3d 326, 340 (5th Cir. 2009). As we observed in Freeman, w h ic h involved a challenge to federal officials' management of relief operations a n d evacuation efforts in the aftermath of Hurricane Katrina, "the government's 18

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No. 09-41039 d e c is io n s about when, where, and how to allocate limited resources within the e x ig e n c ie s of an emergency are the types of decisions that the discretionary fu n c tio n exception was designed to shelter from suit." Id. We noted in

p a r tic u la r that "decisions regarding the feasibility, safety, and benefit of m o b iliz in g federal resources in the aftermath of a national disaster are grounded i n social, economic, and public policy." Id. at 341. All of these concerns were p r e s e n t here. Particularly in light of the "strong presumption" that, where p e r m it t e d by the relevant statute or regulation, the exercise of choice or ju d g m e n t implicates relevant policy, see Gaubert, 499 U.S. at 324, we conclude t h a t the official's decision was the type of policy decision protected by the d is c r e t io n a r y function exception and therefore meets the second prong of the B e r k o v itz test. I n reaching this conclusion, we observe, as we did in Freeman, 556 F.3d a t 341, that the proper inquiry under prong two is not whether Maldonado in fa c t engaged in a policy analysis when reaching his decision but instead whether h is decision was "susceptible to policy analysis." Gaubert, 499 U.S. at 325 ("The fo c u s of the inquiry is not on the agent's subjective intent in exercising the d is c r e t io n conferred by statute or regulation, but on the nature of the actions t a k e n and on whether they are susceptible to policy analysis."); see also Shansky v . United States, 164 F.3d 688, 692 (1st Cir. 1999) ("The critical question is w h e t h e r the acts or omissions that form the basis of the suit are susceptible to a policy-driven analysis, not whether they were the end product of a policyd r iv e n analysis."). Whatever Maldonado's actual decisionmaking process, it is

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No. 09-41039 c le a r that the health, safety, financial, and other feasibility concerns implicated b y the evacuation decision render that decision susceptible to policy analysis.11 B e c a u s e both prongs of the Berkovitz test are met, we conclude that the d is c r e t io n a r y function exception precludes subject matter jurisdiction over the p la in t iffs ' FTCA claims. In reaching this conclusion, we do not minimize or d is c o u n t the severe hardships that the plaintiffs endured in the aftermath of the s t o r m . We simply lack jurisdiction to provide relief under the statute through w h ic h the plaintiffs have chosen to pursue their claims. IV . THE BIVENS CLAIMS

T h e plaintiffs also appeal the district court's denial of leave to file a p r o p o s e d Fourth Amended Complaint, which would have raised substantially t h e same claims against the individual Penitentiary officials as a Bivens action in the event that the district court accepted the magistrate judge's r e c o m m e n d a t io n to dismiss the plaintiffs' FTCA claims. The magistrate judge r e c o m m e n d e d that leave to amend under Federal Rule of Civil Procedure 15 s h o u ld be denied as futile because the plaintiffs' Bivens claims were time-barred. The district court entered final judgment dismissing the FTCA claims for lack o f subject matter jurisdiction and denied "[a]ll motions not previously ruled on," w h ic h included the motion to amend.

The plaintiffs cite Whisnant v. United States, 400 F.3d 1177 (9th Cir. 2005), and In re Katrina Canal Breaches Consolidated Litigation, 471 F. Supp. 2d 684 (E.D. La. 2007), for the proposition that the decision not to evacuate is not susceptible to policy analysis, but, as the district court explained, these cases are not binding precedent and are readily distinguishable. See Spotts v. United States, No. 1:08-cv-376, 2009 WL 3150872, at *3 (E.D. Tex. Sept. 26, 2009). The plaintiffs also contend that prong two is not satisfied if the decision at issue violated nonmandatory duties. But this inquiry properly falls under prong one. Moreover, we have already addressed and rejected the plaintiffs' contention that the decision at issue violated the various nonmandatory duties that they cite.

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No. 09-41039 T h e magistrate judge reasoned that the Bivens claims were time-barred b e c a u s e the applicable statute of limitations had run. As the magistrate judge c o r r e c t ly observed, a Bivens action is controlled by the applicable state statute o f limitations. This circuit, applying Texas law, has held that the statute of lim i t a t i o n s period on a Bivens claim is two years, the statute of limitations g o v e r n in g personal injuries in Texas. See Brown v. Nationsbank Corp., 188 F.3d 5 7 9 , 590 (5th Cir. 1999); Pena v. United States, 157 F.3d 984, 987 (5th Cir. 1998). The magistrate judge concluded that the Bivens claims were time-barred b e c a u s e they accrued on September 24, 2005, when Hurricane Rita made la n d fa ll, but the plaintiffs did not move for leave to file a Fourth Amended C o m p la in t until September 2, 2009, almost four years later. The magistrate ju d g e further concluded that the Bivens claims did not relate back to the original c o m p la in t and that even if they did, they would be time-barred because the o r ig in a l complaint was filed on January 9, 2008, more than two years after the B iv e n s claims would have accrued. O n appeal, the plaintiffs contend that the magistrate judge should have a p p lie d Texas's residual, four-year limitations period to the Bivens claim, a r g u in g that this is not a "personal injury lawsuit," but a "civil rights complaint." This characterization of the claim does not help the plaintiffs because we have p r e v io u s ly held that federal civil rights claims filed in Texas are subject to T e x a s 's two-year statute of limitations for personal injury. Jones v. Alcoa, 339 F .3 d 359, 364 (5th Cir. 2003) (addressing § 1981 claims and stating: "Federal c iv il rights actions . . . lack[ing] an express statute of limitations[ ] are governed b y the most closely analogous limitations period provided under state law. . . .

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No. 09-41039 [I ]n Texas, the two-year statute of limitations for personal injury actions in T e x a s controls."). T h e plaintiffs also challenge the magistrate judge's conclusion that all of t h e ir claims began to accrue on September 24, 2005, when the hurricane made la n d fa ll. The plaintiffs contend that some inmates were not diagnosed with H. P y lo r i infection until October 29, 2008, and argue that the statute of limitations d id not begin to run until that point. But the time of the actual diagnosis is not d is p o s itiv e . The plaintiffs contend that they began experiencing H. Pylori

s y m p t o m s almost immediately after the storm, and the record shows that they b e g a n filing administrative claims regarding these symptoms as early as F e b r u a r y 2006. Under federal law, a claim accrues and "the limitations period b e g in s to run the moment the plaintiff becomes aware that he has suffered an in ju r y or has sufficient information to know that he has been injured." Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001) (modifications a n d internal quotation marks omitted). The plaintiffs also complain that they c o n t in u e to be sickened by unremediated toxic mold and algae resulting from the s t o r m , and that the Penitentiary officials' decision not to take remedial steps c o n s t it u t e s a continuing tort. But, as the plaintiffs have conceded at numerous p o in ts in this litigation, their only challenge is to the decision not to evacuate a ft e r the storm. The plaintiffs do not attempt to draw any causal connection b e tw e e n this evacuation decision and the continuing presence of mold on the P e n it e n t ia r y walls (which presumably would have grown whether or not the p r is o n e r s were evacuated in the immediate aftermath of the storm), and this c o u r t is aware of none. The amendment that the plaintiffs sought would have

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No. 09-41039 b e e n futile because the Bivens claims were time-barred. Accordingly, we affirm t h e district court's denial of leave to amend. V. CONCLUSION

F o r the above reasons, we conclude that the United States has not waived s o v e r e ig n immunity for the discretionary functions alleged in this case and t h e r e fo r e AFFIRM the district court's dismissal for lack of subject matter ju r is d ic t io n of the plaintiffs' FTCA claims. We also AFFIRM the district court's d e n ia l of plaintiffs' motion for leave to amend to add Bivens claims.

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