Cardenas v. United States of America et al

Filing 21

OPINION & ORDER: The Court GRANTS the Government's 11 Motion as to Cardenas's general negligence claims. The Court DENIES the Government's Motion for Cardenas's claims based upon (1) violations of 28 C.F.R. §§ 115.61, 115.76 and (2) violations of BOP Program Statements 3420 and 5324. (Ordered by Judge Mark Pittman on 11/15/2023) (bdb)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
MARIA CARDENAS,
Plaintiff,
v.

No. 4:23-cv-00745-P

UNITED STATES OF AMERICA, ET AL.,
Defendants.
OPINION & ORDER
Before the Court is Defendant’s Motion to Dismiss. ECF No. 11.
Having considered the briefing and applicable law, the Court
determines the Motion should be and hereby is GRANTED in part and
DENIED in part.
BACKGROUND
Maria Cardenas was sexually assaulted by officer Luis Curiel while
in custody at Federal Medical Center, Carswell (“FMC Carswell”).
Before the assault, Cardenas allegedly reported Curiel’s inappropriate
sexual advances to the Bureau of Prisons (“BOP”). Cardenas says the
relevant Prison Investigative Authorities1 failed to launch a timely
investigation and disciplinary proceeding against Curiel. Emboldened
by this perceived lack of consequences, Curiel’s sexual advances turned
into outright sexual assaults. The Prison Investigative Authorities
eventually investigated the incident, resulting in Curiel’s criminal
prosecution in 2022.
Cardenas sued the Government under the Federal Tort Claims Act
(“FTCA”), arguing the BOP’s failure to timely investigate/discipline
1To

avoid incessant acronym usage, the Court adopts Cardenas’s
nomenclature and collectively calls the relevant law enforcement agencies
“Prison Investigative Authorities.” In addition to the BOP, these include the
Office of Internal Affairs (“OIA”), the Office of Inspector General (“OIG”), the
Special Investigative Services Unit (“SIS”), and the Department of Justice
(“DOJ”). The Court signposts wherever individual entities are relevant.

Curiel was negligent and proximately caused her assault. Cardenas’s
Complaint alleges widespread failures within the BOP to investigate
prison officials accused of sexual misconduct and to enforce both internal
Standards of Employee Conduct and the policies mandated by the
Prison Rape Elimination Act (“PREA”).
The Government now moves to dismiss, arguing the Court lacks
subject-matter jurisdiction over Cardenas’s claims. First, the
Government says Cardenas didn’t exhaust her administrative remedies
before suing. Second, the Government says Cardenas’s claims are
barred by the FTCA’s discretionary-function exception. Third, the
Government says its immune from Cardenas’s lawsuit because Curiel’s
torts were committed outside the scope of his employment. As explained
herein, the Court disagrees with the Government on points one and
three and partially disagrees with the Government on point two.
LEGAL STANDARD
“Subject matter jurisdiction defines the court’s authority to hear a
given type of case.” United States v. Morton, 467 U.S. 822, 828 (1984).
Certain types of cases presumptively fall beyond the ambit of a federal
court’s subject-matter jurisdiction. Id. For instance, “[a]bsent waiver,
the immunity of a state from suit as signified by, but not fully expressed
in, the Eleventh Amendment is a jurisdictional barrier.” Stramaski v.
Lawley, 44 F.4th 318, 321–22 (5th Cir. 2022) (citation omitted). In this
way, sovereign immunity is not like other affirmative defenses; rather,
the doctrine “operates like a jurisdictional bar, depriving federal courts
of the power to adjudicate suits against a state [actor].” Union Pac. R.
Co. v. La. Pub. Serv. Comm’n, 662 F.3d 336, 340 (5th Cir. 2011). While
attacks on subject-matter jurisdiction can’t be waived, parties typically
bring them at the earliest possible juncture—namely, through a Rule
12(b)(1) motion. See FED. R. CIV. P. 12(b)(1). “The burden of proof for a
Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.”
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). At the
pleadings stage, plaintiffs carry their burden by “alleg[ing] a plausible
set of facts establishing jurisdiction.” Physician Hosps. of Am. v.
Sebelius, 691 F.3d 649, 652 (5th Cir. 2012).

2

“Unlike a Rule 12(b)(6) motion which is confined to evaluating the
pleadings, a 12(b)(1) factual attack on the court’s subject matter
jurisdiction may be based on (1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or (3) the
complaint supplemented by undisputed facts plus the court’s resolution
of disputed facts.” Kling v. Hebert, 60 F.4th 281, 284 (5th Cir. 2023)
(cleaned up). But “where issues of fact are central to both subject matter
jurisdiction and the claim on the merits, . . . the trial court must assume
jurisdiction and proceed to the merits.” Montez v. Dep’t of the Navy, 392
F.3d 147, 150 (5th Cir. 2004). The Court asks three questions to decide
if a jurisdictional issue is “inextricably intertwined” with a merits issue.
Pickett v. Tex. Tech Univ. Health Sciences Ctr., 37 F.4th 1013, 1019 (5th
Cir. 2022). First, does the “statutory source of jurisdiction differ[] from
the source of the federal claim?” In re Southern Recycling, LLC, 982 F.3d
374, 379–82 (5th Cir. 2020). Second, can “the jurisdictional issue . . . be
extricated from the merits and tried as a separate issue?” Id. (citation
omitted). Third, does “judicial economy favor[] early resolution of the
jurisdictional issue?” Id.
ANALYSIS
The Court’s analysis hinges on three questions. First, does Cardenas
allege a plausible negligence claim that supports jurisdiction under the
FTCA? If she doesn’t, dismissal is easy. Second, even if she alleges a
plausible claim, did she exhaust her administrative remedies before
suing? If she didn’t, her case is out. Third, assuming Cardenas states a
plausible claim and exhausted her administrative remedies, does the
FTCA’s discretionary-function exception nevertheless bar her claim?
The Government argues a fourth point related to Curiel’s actions as
outside the scope of his employment, but the Court finds that line of
inquiry immaterial to the instant Motion.
A. Cardenas alleges a plausible FTCA claim.
Starting with the root inquiry, Cardenas must “allege a plausible set
of facts establishing jurisdiction” for her FTCA claim. Sebelius, 691 F.3d
at 652. The Court thinks she does. The Government says Cardenas pulls
a fast one and couches intentional-tort claims regarding Curiel’s assault
in negligence terms. See ECF No. 11 at 8 (“[A]lthough Cardenas alleges
3

her claims are about the asserted negligence of these DOJ entities, her
claims really are about the sexual assault committed by Curiel.”).
Ordinarily, this argument would lead to a separate jurisdictional
analysis regarding the viability of FTCA claims for intentional torts by
law enforcement officials. See Millbrook v. United States, 569 U.S. 50,
51–54 (2013). But the Court need not conduct that analysis here because
Cardenas’s claims sound in negligence, not intentional tort.
Cardenas says “the BOP has created and maintained a sanctuary for
male correctional officers to sexually assault and abuse female inmates.”
ECF No. 1 at 4. Citing a recent Congressional investigation which found
the BOP “largely tolerated or ignored” inmates’ complaints of sexual
harassment,2 Cardenas explains how she experienced the BOP’s
systemic failures firsthand. See id. at 4–13. Whether or not the
Complaint supports such a damning conclusion regarding the BOP’s
failures, it certainly supports an FTCA negligence claim.
To be sure, Cardenas’s assault by Curiel is relevant, but only insofar
as it shows the culmination of the BOP’s broader alleged failures. From
Cardenas’s perspective, the BOP’s unresponsiveness enabled Curiel to
commit worse and worse atrocities, proximately causing her assault. Id.
at 4. While the BOP points to Curiel’s investigation and criminal
prosecution, it misses the point. Cardenas’s point isn’t that the BOP
didn’t respond to Curiel’s crime; her point is that earlier BOP action
would have likely prevented the crime altogether. Put differently, an
unchecked bully is an emboldened bully.
The Complaint alleges myriad breaches of PREA and the BOP’s
Standards of Employee Conduct. See, e.g., id. at 9–11, 15–16. The issue
isn’t the rules themselves, but the BOP’s alleged failure to implement
them—the best policies in the world mean nothing if agencies ignore
them or negligently fail to enforce them. Accordingly, the Court
disagrees that Cardenas’s negligence claim is a Trojan horse for
intentional tort claims against Curiel. Rather, the above allegations
support a relatively straightforward negligence claim. See id. Thus, the

2See

MEMORANDUM FROM THE MAJORITY STAFF OF THE SUBCOMMITTEE ON
NAT’L SEC. TO CHAIRMAN RUSSELL 1 (Jan. 2, 2019).

4

Complaint “allege[s] a plausible set of facts establishing jurisdiction.”
Sebelius, 691 F.3d at 652. The Court now turns to exhaustion.
B. Cardenas exhausted her administrative remedies by
presenting her claim to the BOP before suing.
Having found Cardenas states a plausible FTCA claim, the Court
must next ask if she exhausted her administrative remedies. See 28
U.S.C. § 2675. This isn’t a procedural “gotcha,” but a valuable safeguard
for due process. See McNeil v. United States, 508 U.S. 106, 112 (1993)
(“[G]iven the clarity of the statutory text, it is certainly not a ‘trap for
the unwary.’ . . . As we have noted before, ‘in the long run, experience
teaches that strict adherence to the procedure requirements specified by
the legislature is the best guarantee of evenhanded administration of
the law.’”) (quoting Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980)).
The Government says Cardenas never exhausted her administrative
remedies, noting “[a] claim is considered ‘presented’ to the federal
agency when an SF-95 or other written notification of an incident is filed
with the agency.” ECF No. 11 at 12.
Looking to the pleadings, the Court must avoid a formulaic approach
to exhaustion and determine if Cardenas gave the BOP “a writing that
informs the agency of the facts of the incident and the amount of the
claim.” Montoya v. United States, 841 F.2d 102, 105 (5th Cir. 1988); see
also 28 C.F.R. § 14.2(a). Thinks get tricky here for Cardenas, owing to
shoddy complaint-drafting and even worse records-keeping. Because
exhaustion is a “jurisdictional prerequisite,” see Gregory v. Mitchell, 634
F.2d 199, 203–04 (5th Cir. 1981), the Government heavily briefed the
topic. See ECF No. 11 at 11–13. Having reviewed the Complaint, the
Government is right that “Cardenas [doesn’t] allege anywhere in her
complaint that she has submitted any administrative claim at all to the
BOP or any other federal agency, nor does she even generally assert that
she has exhausted her administrative claims.” See id. at 13. Further
supporting an inference of non-exhaustion, “[t]he BOP has searched its
records where any such administrative tort claim would be maintained
and has not identified any claim submitted by or on behalf of Cardenas
for the incidents at issue in this action.” Id. (cleaned up).

5

Before Cardenas responded, the Government’s argument seemed
bulletproof. But Cardenas’s Response provided equally bulletproof
evidence that she did in fact present the BOP with her claim. Attached
as Exhibit A to the Response is a December 8, 2022, letter sent from
Cardenas’s counsel to the BOP. See ECF No. 17-1 at 2–5. The letter—
captioned “re: Federal Torts Claims Act (28 U.S.C. § 1346 et seq)”—
satisfies the FTCA’s presentment requirements. See generally 28 C.F.R.
§ 14.2(a). The letter provides “written notice of the incident.” See ECF
No. 17-1 at 2–3 (recounting the case’s underlying facts). The letter
provides “a claim for money damages in a sum certain.” See id. at 4 (“Our
Client demands compensation from the federal government for this
abuse in the amount of $1,245,000.”). And the letter provides “the title
of the person signing” along with their “authority to present a claim” on
Cardenas’s behalf. See id. The letter thus checks all applicable boxes.
In its Reply, the Government argues that “based on the demand
letter filed with her response . . . it is apparent that Cardenas’
administrative tort claim did not allude to any complaints for failure to
timely investigate sexual assault reports against male correctional
officers or failure to timely investigate or prosecute her own report of
sexual abuse.” ECF No. 20 at 6. But the letter’s general contours
provided the BOP with sufficient notice of Cardenas’s claims and the
overarching facts upon which they are based. See ECF No. 17-2 at 2–4.
Fair notice is required, not a granular explication of every theory of
liability. Thus, the Government’s Reply cuts against the thrust of Fifth
Circuit precedent, which had adopted an “expansive” understanding of
the FTCA notice requirement. See Montoya, 841 F.2d at 104 (collecting
cases).
To conclude, it’s unclear why the notice letter wasn’t pleaded in the
Complaint (or why the BOP’s record-search didn’t reveal the letter). In
any event, this evidence solidifies “the court’s resolution of [this]
disputed fact[]” in Cardenas’s favor. See Kling, 60 F.4th at 284. Having
found Cardenas pleads a plausible FTCA claim and exhausted her
administrative remedies, the Court now turns to sovereign immunity.

6

C. The discretionary-function exception bars most (but not
all) of Cardenas’s claims.
Derived from the English legal fiction that “the King can do no
wrong” and thus can’t be sued in his own courts, sovereign immunity
bars lawsuits against the Government where the Government hasn’t
abrogated its presumptive immunity. See United States v. Lee, 106 U.S.
196, 205 (1882). The only problem, of course, is that the King can and
will do wrong when not held accountable. So Congress passed the FTCA
in 1946 to waive sovereign immunity for certain torts caused by:
[T]he negligent or wrongful act or omission of any employee
of the Government while acting within the scope of his [or
her] office or employment, under the circumstances where
the United States, if a private person, would be liable to
the claimant in accordance with the law of the place where
the act or omission occurred.
28 U.S.C. § 1346(b)(1); see Ashford v. United States, 511 F.3d 501, 504–
05 (5th Cir. 2007) (explicating the Fifth Circuit’s FTCA case law).
Loath to hang Uncle Sam out to dry, Congress carved out exceptions
to the FTCA’s sovereign-immunity waiver. See 28 U.S.C. § 2680
(enumerating FTCA’s exceptions). One popular safe harbor for would-be
government tortfeasors is the “discretionary-function” exception, which
bars claims “based upon the exercise or performance or failure to
exercise or perform a discretionary function or duty on the part of a
federal agency or an employee of the Government.” Id. § 2680(a). Put
differently, “[t]he discretionary function exception withdraws the
FTCA’s waiver of sovereign immunity in situations in which, although
a government employee’s actions may have been actionable under state
tort law, those actions were required by, or were within the discretion
committed to, that employee under federal statute, regulation, or
policy.” Spotts v. United States, 613 F.3d 559, 566 (5th Cir. 2010).
There’s a two-part test to see if the exception applies. Id. at 567
(citing United States v. Gaubert, 499 U.S. 315, 322–23 (1991)). First, the
Court asks if the challenged act involved “judgment or choice on the part
of the employee.” Dickson v. United States, 11 F.4th 308, 312 (5th Cir.
2021). Second, if the act involved judgment or choice, the Court asks if
such judgment was the “kind that the discretionary function exception
7

was designed to shield.” Gaubert, 499 U.S. at 322–23; see also Berkovitz
v. United States, 486 U.S. 531, 536–37 (1988) (noting the exception was
designed to “prevent judicial ‘second-guessing’ of legislative and
administrative decisions grounded in social, economic, and political
policy through the medium of an action in tort”). At this stage, Cardenas
“must invoke the court’s jurisdiction by alleging a claim that is facially
outside the discretionary function exception.” St. Tammany Parish ex
rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d 307, 315 & n.3 (5th
Cir. 2009).
The Complaint’s allegations concern a mix of discretionary and nondiscretionary functions. For simplicity, the Court groups them into two
categories: (1) general allegations of negligence regarding the BOP’s
employee-management and inmate-transfer decisions and (2)
allegations that the BOP negligently breached provisions in PREA and
the BOP’s Standards of Employee Conduct. As explained below, the
discretionary-function exception bars the first category, but certain
claims in the second category survive.
1. Cardenas’s general claims of negligent employment
decisions and inmate transfers are precluded.
Cardenas alleges an array of negligent acts and omissions related to
the hiring, firing, supervision, and management of BOP employees, as
well as BOP’s decisions regarding inmate transfers.3 The discretionaryfunction exception precludes these general claims. But many of her
allegations rooted in PREA or the BOP’s Standards of Employee
Conduct involve these same subjects. As explained further below, those
3To

take just a few examples, the Complaint alleges: “[t]he [SIS] assigned
to FMC-C . . . [was] grossly negligent and derelict in their duties to manage,
supervise, and investigate male officers at FMC-C engaged in the sexual
harassment and abuse of female inmates” (ECF No. 1 at 3); the Prison
Investigative Authorities “failed to timely investigate and prosecute the
criminal activity perpetrated by [Curiel]” (Id.); “the annual [PREA] Audits for
FMC-C are materially incomplete as the auditors failed to interview any
female inmates that were involved in or witness to PREA violations” (Id. at 7);
“[d]espite the known issues of abuse, the FMC-C Management Team granted
Officer Curiel unrestricted and unsupervised contact with Plaintiff” (Id. at 12);
and “the FMC-C Management Team and the Prison Investigative Agencies
breached their duties to Plaintiff by negligently supervising, managing, and
retaining Officer Curiel during Plaintiff’s incarceration at FMC-C” (Id. at 14).

8

allegations aren’t automatically precluded just because these topics are
typically left to agency discretion. The law doesn’t categorically
determine employment decisions and inmate transfers are
discretionary; it merely notes such decisions generally involve BOP
discretion. Thus, the Court finds the discretionary-function exception
precludes any negligence claims that aren’t rooted in violations of
specific legal mandates required for the BOP and Prison Investigative
Authorities.
As noted above, discretionary functions involve employee “judgment
or choice.” Dickson, 11 F.4th at 312. “For example, ‘if a statute,
regulation, or policy leaves it to a federal agency 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.’” Id. (citing Spotts, 613
F.3d at 567). The Complaint alleges BOP negligence that violated the
agency’s “stated mission, [which] is to ‘protect public safety by ensuring
that federal offenders serve their sentences of imprisonment in facilities
that are safe, humane, cost efficient and appropriately secure.’” ECF No.
1
at
4
(citing
FEDERAL
BUREAU
OF
PRISONS,
https://www.bop.gov/about/agency/ (last visited Nov. 7, 2023)). But while
“the [BOP] [must] provide for the safekeeping, care, and subsistence of
all federal prisoners,” the enabling act “does not indicate the manner in
which the duty must be fulfilled.” Spotts, 613 F.3d at 567. Given the
enabling act’s silence on how the BOP must carry out this duty, courts
have consistently held that the discretionary-function exception
precludes general negligence claims rooted in employee-management or
inmate-transfer decisions.4 Thus, those claims must go.

4See,

e.g., Dickson, 11 F.4th at 313 (“[F]ederal statutes confer discretion on
the BOP to classify prisoners and place them in institutions in accordance with
public policy.”); Dorsey v. Relf, No. 4:12-cv-021-A, 2013 WL 791604, at *5 (N.D.
Tex. Mar. 4, 2013) (collecting cases) (“Decisions regarding hiring, supervising,
training, and retaining employees involve many public policy considerations
and matters of judgment and choice for [BOP] employees making those
decisions. Decision-making employees must evaluate and weigh the
qualifications of applicants, consider staffing requirements, conduct ongoing
assessment of training needs, and make numerous daily decisions regarding
supervision of employees. These multi-factored choices require the balancing

9

The Court recognizes this may substantially handicap Cardenas’s
case, as the Complaint devotes many pages to waxing poetic about the
BOP’s general responsibility of protecting inmates from sexual abuse.
See, e.g., ECF No. 1 at 3–9. But even if the Complaint alleges clear
failures within the BOP vis-à-vis this important responsibility, the
Court isn’t at liberty to override the discretionary-function exception. By
creating the exception, “Congress took steps to protect the Government
from liability that would seriously handicap efficient government
operations.” United States v. S.A. Empresa de Viacao Aerea Rio
Grandense, 467 U.S. 797, 808 (1984). If agency decisions regarding every
employment decision or inmate transfer subjected the BOP to potential
tort liability, efficient operation of America’s prison system would be
hindered. Accordingly, the Court must deny Cardenas’s general claims
of negligence. However, as explained further below, her case lives to
fight another day because the Complaint shows certain violations of
non-discretionary duties.
2. Cardenas’s claims for violations of PREA Sections 115.61
and 115.76 aren’t precluded.
While her general claims must be dismissed, Cardenas also alleges
specific actions/inactions by which the BOP violated PREA. Here, the
Fifth Circuit’s opinion in Dickson provides guidance. There, the Court
noted that “it may be possible that other policies remove components of
[the BOP’s] general discretion.” 11 F.4th at 313. The Court upheld the
trial court’s application of the discretionary-function exception, but only
because Dickson failed to allege violations of “nondiscretionary duties”
or otherwise show “that they were discretionary decisions not based on
considerations of public policy.” Id. Guided by Dickson, the Court must
now see if Cardenas alleges (1) violations of nondiscretionary duties or
(2) violations of discretionary duties that aren’t based on public policy.
The Complaint alleges the following PREA violations:
Section 115.11 – failing to enforce zero tolerance policy as
it related to the sexual abuse of Plaintiff and other inmates
at FMC-C.
of competing objectives and are of the nature and quality that Congress
intended to shield from tort liability.”) (citations omitted).

10

Section 115.13 – failing to supervise and monitor (video
surveillance) one-on-one inmate/officer contact as it relates
to the sexual [abuse] of Plaintiff and other inmates by
Officer Curiel.
Section 115.17 – hiring, promoting and retaining officers
who ‘may’ have had improper sexual contact, including
Officer Curiel.
Section 115.43 – punishing sex victims with involuntary
segregated housing, loss of privileges and work permits.
Section 115.61 – failing to report suspicion of sexual abuse
as it related to the conduct of Officer Curiel with female
inmates including Plaintiff.
Section 115.67 – failing to protect inmates from retaliation
after reporting abuse including relocating Plaintiff and
placing her in isolated confinement.
Section 115.76 – failing to discipline staff for sexual
misconduct, including Officer Curiel.
ECF No. 1 at 15. The Government cites several cases from other circuits
in arguing “PREA . . . grant[s] discretion to federal officials as to [its]
implementation and execution.” See ECF No. 11 at 20. The Court isn’t
convinced.5 Rather, the determination must be provision-specific, as
sweeping statutes like PREA often contain both mandatory and nonmandatory/aspirational provisions.

5The

Government’s cases on this point don’t support a conclusion that
PREA gives BOP officials carte blanche vis-à-vis execution of their statutory
duties. For instance, the plaintiff in Gladney alleged negligence because the
BOP didn’t maintain around-the-clock inmate monitoring. The Ninth Circuit
never said the BOP had no mandatory obligations under PREA, but it applied
the exception because “[n]either [PREA] nor any implementing regulation
imposes a mandatory duty on the [BOP] to monitor prisoners continuously.”
Gladney v. United States, 858 F. App’x 221, 223 (9th Cir. 2021). The same was
true in L.C., where the court noted “L.C.’s claim under 18 U.S.C. § 4202(a) . . .
must be dismissed under the discretionary function exception unless the
complaint alleges the existence of a specific and immediate threat against L.C.”
L.C. v. United States, No. 5:21-cv-00124-GFVT, 2022 WL 1179400, at *8 (E.D.
Ky. Apr. 19, 2022) (cleaned up and emphasis added). By noting the plaintiff
could have pleaded specific facts such that the exception wouldn’t apply, the
Court left open the possibility of non-discretionary PREA mandates. Thus, the
Court’s broader recognition of BOP discretion can’t be read as categorically as
the Government suggests.

11

It’s worth noting the Government forgets two important interpretive
canons: expressio unius est exclusio alterius and generalia specialibus
non derogant.6 Courts like to state the obvious in Latin to make it sound
fancier, but these canons just mean (1) saying one thing means you
aren’t saying the opposite and (2) specific laws beat out general laws.
Applying these principles, even if PREA leaves room for agency
discretion at a broad level, that discretion doesn’t extend to areas where
PREA mandates specific conduct. See Gaubert, 499 U.S. at 322 (“The
requirement of judgment or choice is not satisfied if a ‘federal statute,
regulation, or policy specifically prescribes a course of action for an
employee to follow,’ because ‘the employee has no rightful option but to
adhere to the directive.’”) (citing Berkovitz, 486 U.S. at 536). Thus,
Cardenas’s PREA claims survive to the extent they sound in concrete
statutory requirements. See id. at 324 (noting that where a plaintiff
alleges violations of specific mandates, “there will be no shelter from
liability because there is no room for choice and the action will be
contrary to policy”).
On a claim-by-claim basis, the Court determines the following for
each of Cardenas’s PREA claims:
Section 115.11 – Cardenas’s claim that the BOP negligently “fail[ed]
to enforce zero tolerance policy as it related to the sexual abuse of
Plaintiff” fails because Section 115.11(a) requires only the existence of a
“written policy mandating zero tolerance toward all forms of sexual
6For

the first—“the expression of one thing is the exclusion of its
alternative”—the Court can’t determine an agency has discretion for specific
actions required by a specific provision of law. See Expressio unius est exclusio
alterius, BLACK’S LAW DICTIONARY (11th ed. 2019) (“A canon of construction
holding that to express or include one thing implies the exclusion of another,
or of the alternative. For example, the rule that ‘each citizen is entitled to vote’
implies that noncitizens are not entitled to vote.”). For the second—“the
general doesn’t derogate the specific”—the Court must endeavor to interpret
PREA in a way that’s logically consistent and doesn’t allow general assertions
of discretion to overpower specific statutory requirements. While commonly
applied in the context of competing (e.g., “older” and “newer”) statutes, the
canon applies with equal force to competing provisions within the same
legislation. See Generalia specialibus non derogant, BLACK’S LAW DICTIONARY
(11th ed. 2019) (“The doctrine holding that general words in a later statute do
not repeal an earlier statutory provision dealing with a special subject.”).

12

abuse and sexual harassment,” leaving matters of implementation and
execution to agency discretion. See 28 C.F.R. § 115.11(a). And Cardenas
doesn’t allege violations of the policies enumerated in Section 115.11(b),
(c).
Section 115.13 – Cardenas’s claim that the BOP negligently “fail[ed]
to supervise and monitor (video surveillance) one-on-one inmate/officer
contact” fails because it isn’t rooted in specific, mandatory requirements.
Section 115.13 requires the BOP to “make its best efforts” to adequately
monitor employee-inmate interactions and suggests video monitoring
“where applicable.” See 28 C.F.R. § 115.13(a). The Section then
enumerates eleven considerations that suggest video monitoring may be
warranted (see id. at § 115(a)(1)–(11)) but leaves analysis of those
considerations to the agency. Absent language requiring video
monitoring, Cardenas’s claim under Section 115.13 is precluded. While
the Complaint gives ample reason to suggest such monitoring would
have been appropriate, the Court is called upon only to apply the law,
not to “second-guess” the BOP’s decision-making. See Berkovitz, 486
U.S. at 536–37.
Section 115.17 – Cardenas’s claim that the BOP negligently hired
Curiel, as someone who “may have had” improper sexual contact with
inmates, is precluded because Section 115.17 enumerates certain
conditions (28 C.F.R. § 115.17(a)(1)–(3)) under which the BOP may not
hire such individuals. As Cardenas’s allegations all concern Curiel’s
impropriety after he was hired, nothing indicates his initial hiring
violated Section 115.17.
Section 115.43 – Cardenas’s claim that the BOP negligently placed
her and other victims in “involuntary segregated housing” is precluded
because the Complaint doesn’t allege facts showing BOP officials at
FMC-C failed to assess adequate alternatives as required by the statute.
See id. at § 115(a) (requiring that “[i]nmates at a high risk for sexual
victimization shall not be placed in involuntary segregated housing
unless an assessment of all available alternatives has been made”).
PREA doesn’t prohibit segregated housing for potential victims; it
articulates an assessment the BOP must conduct before making that

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call. Absent any allegation that the BOP failed to make such an
assessment, Cardenas’s claim under Section 115.43 is precluded.
Section 115.61 – Cardenas’s claims that the BOP negligently
“fail[ed] to report suspicion of sexual abuse as it related to the conduct
of Officer Curiel” survive because those allegations indicate the BOP
violated clear legal obligations set forth in Section 115.61. See James v.
LaCroix, No. 1:16-cv-00138, 2017 WL 2602598, at *6 (W.D. La. Apr. 17,
2017) (analyzing Section 115.61, noting “[t]he new policy and rules for
handling inmate complaints of sexual harassment and sexual assault
leave BOP officers no discretion as to whether to follow those
procedures”). While the BOP may have discretion regarding how to
report sexual impropriety, it doesn’t have discretion to not report
impropriety. Thus, Cardenas’s claim under Section 115.61 isn’t
precluded by the discretionary-function exception.7
Section 115.67 – Cardenas’s claims that the agency negligently
“failed to protect” her from sexual harassment are precluded because
Section 115.67 states “[t]he agency shall establish a policy to protect all
inmates and staff who report sexual abuse or sexual harassment.” 28
C.F.R. § 115.67(a). Subject to certain enumerated conditions, the agency
is left with discretion to implement and execute the required policy.
Cardenas doesn’t say the BOP never established a policy; she says the
BOP failed to execute the policy. Accordingly, her claim under Section
115.67 is precluded.
Section 115.76 – Cardenas’s claim that the BOP negligently failed
to take timely disciplinary action against Curiel survives because the
Complaint’s allegations establish violations of clear statutory mandates.
See 28 C.F.R. § 115.76(a)–(b) (requiring disciplinary action for violations
7The

Government correctly notes that Cardenas “provides no specific
information about any ignored sexual assault reports at the facility.” ECF No.
11 at 16. The Court recognizes that “[a] plaintiff should be ready to present
some amount of basic jurisdiction evidence, or at least raise an inference that
further discovery will uncover such evidence, from the outset of litigation.” In
re Southern Recycling, LLC, 982 F.3d 374, 386 (5th Cir. 2020). But evidence of
such reports is the precise kind of evidence that discovery is likely to uncover,
so the Court is disinclined to prematurely act upon the absence of such
evidence in the face of clear allegations within the Complaint.

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of sexual misconduct policies and mandating termination as “the
presumptive disciplinary sanction for staff who have engaged in sexual
abuse”). So the BOP had discretion regarding how to discipline Curiel,
not whether to discipline him. Logically, the BOP’s alleged violation of
this requirement relates to its alleged violation of Section 115.61’s
reporting requirement. While the BOP investigated Curiel after the
sexual assault, the Complaint alleges that the BOP received reports of
misconduct before the assault but didn’t take timely disciplinary action.
See, e.g., ECF No. 1 at 15–16. Accordingly, Cardenas’s claim under
Section 115.76 isn’t precluded by the discretionary-function exception.
3. Cardenas’s claims for violations of Program Statements
3420 and 5324 aren’t precluded.
The Court must conduct a similar claim-by-claim analysis of
Cardenas’s claims under the BOP’s Standards of Employee Conduct.
Cardenas says the BOP violated numerous requirements under
Program Statements 3420 and 5324, particularly by “failing to report
the sexual abuse of Plaintiff and other female inmates by Officer Curiel
[and] allowing him to continue his criminal assaults and harassment;
failing to stop the sexual abuse of female inmates by Officer Curiel after
notice and knowledge of prior assaults; and failure to train Officer Curiel
on the Program Statements and procure his signature certifying same.”
ECF No. 1 at 15.
At face value, these allegations support a finding that the BOP
violated at least Program Statement 3420.11, which requires immediate
reporting of such sexual misconduct not to exceed twenty-four hours. See
U.S. DEP’T OF JUSTICE, BUREAU OF FED. PRISONS PROGRAM STATEMENT
3420.11 (2015). (“[A]s soon as practicable (but not later than 24 hours)
[employees must] report to their CEO (or other appropriate authority
such as the [OIA] or [OIG] any violation, appearance of a violation, or
attempted violation of these Standards or of any law, rule, or
regulation.”). While the Government rightly acknowledges that the BOP
has discretion regarding how to report such misconduct, see ECF No. 11
at 21, Cardenas alleges that the BOP failed entirely to report certain
incidents. ECF No. 1 at 15. Cardenas’s claims under Program Statement
3420 thus survive the discretionary-function exception.
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For the same reason, the Complaint supports a finding that the BOP
violated Program Statement 5324.12, which requires that “[a]llegations
of sexually abusive behavior receive prompt intervention upon report.”
U.S. DEP’T OF JUSTICE, BUREAU OF FED. PRISONS PROGRAM STATEMENT
5324.12 (2015). While reasonable minds may differ as to what
constitutes “prompt intervention,” the Complaint says the BOP failed to
intervene at all and only took action after Curiel’s sexual assault of
Cardenas. See, e.g., ECF No. 1 at 15–16. While the Court recognizes the
BOP’s general discretion in making these decisions, Program Statement
5324 leaves no room for discretion as to whether the BOP must report
and intervene in circumstances like those detailed in the Complaint. See
LaCroix, 2017 WL 2602598, at *6. Accordingly, these claims also survive
preclusion.
D. The Court need not determine scope-of-employment
questions at this stage.
So where are we? Cardenas alleges a plausible FTCA claim and
exhausted her administrative remedies. Still, most of her claims are
precluded because they speak to areas committed to agency discretion.
But certain claims dealing with reporting, investigating, and responding
to sexual misconduct survive because the Complaint alleges violations
of specific legal mandates required of the BOP and Prison Investigative
Authorities. The Court now turns to the Government’s argument that
“[t]he United States has not waived sovereign immunity for torts
committed by an employee when acting outside the scope of his
employment.” ECF No. 11 at 23.
1. The scope of Curiel’s employment vis-à-vis Cardenas’s
sexual assault is irrelevant.
As a starting point, the Parties shoot past each other when briefing
this point. The Government stresses ample case law that Curiel’s sexual
misconduct was on him alone, as such conduct is firmly beyond the scope
of his employment. See ECF No. 11 at 23–24. The Court isn’t quite sure
why the Government devoted multiple pages of briefing to the
proposition that sexual assault wasn’t a requirement for Curiel’s
position with the BOP. In any event, Cardenas briefs an entirely
different question by looking not the scope of Curiel’s employment, but
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rather to the scope of employment for all relevant officials tasked with
reporting sexual misconduct and responding appropriately. See ECF No.
1 at 11 (“The correctional officers are federal employees subjecting the
United States . . . to liability for improper actions committed within the
course and scope of their employment.”). In this way, the Government
counters an argument never made, as Cardenas never said Curiel’s
sexual assault was within the scope of his employment.
The Government provides no briefing on the scope of employment for
other relevant correctional officers. See ECF No. 11 at 23–25. Rather, it
misleadingly cites to the Complaint in arguing “Cardenas may be
attempting to assert some kind of vicarious liability against the United
States for the sexual misconducted committed by Curiel.” Id. at 24–25.
In relevant part, the Government quotes the following from Cardenas:

ECF No. 11 at 24. While the humble ellipsis is a punctuation stalwart
that streamlines bulky citations, the Court would encourage litigants to
use it sparingly, lest its overuse detracts from the citation’s veracity.
With the gaps filled in, Cardenas actually asserts:

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ECF No. 1 at 16. The point is clear: Curiel is relevant, but Cardenas’s
claims go beyond his individual acts of sexual misconduct. And to the
extent Curiel is relevant, there are no live questions regarding the scope
of his employment vis-à-vis his sexual misconduct with Cardenas.
Accordingly, the Court finds this line of inquiry immaterial.
2. The Court declines to resolve remaining scope-ofemployment questions at this stage of the proceeding.
Its possible a number of individuals will be relevant to Cardenas’s
claims down the road; for now, her allegations refer to the overarching
entities responsible for reporting and responding to acts of sexual
misconduct at FMC-Carswell. The Court declines to make a
determination as to what responsibilities were within the scope of
employment for different officials at this stage because such questions
are “inextricably intertwined” with the merits of Cardenas’s claims. See
Pickett, 37 F.4th at 1019. The Court must resolve three questions to
reach this conclusion. First, does the “statutory source of jurisdiction
differ[] from the source of the federal claim?” Southern Recycling, 982
F.3d at 379–82. Second, can “the jurisdictional issue . . . be extricated
from the merits and tried as a separate issue?” Id. (citation omitted).
Third, does “judicial economy favor[] early resolution of the
jurisdictional issue?” Id. Here, these questions favor deferring leftover
scope-of-employment questions until a later stage of the proceeding.
First, the FTCA only applies to actions of law enforcement officials
undertaken in the scope of their employment. Dickson, 11 F.4th at 315.
Insofar as the Court’s jurisdiction rests upon the presence of an FTCA
claim, “the statutory source of jurisdiction [doesn’t] differ[] from the
source of the federal claim.” Southern Recycling, 982 F.3d at 379–82.
This factor thus favors declining a scope-of-employment determination
at the present stage. See Daigle v. Opelousas Health Care, Inc., 774 F.2d
1344, 1347 (5th Cir. 1985).
Second, the jurisdictional issue can be tried separately. See Southern
Recycling, 982 F.3d at 379–82. Indeed, subsequent discovery would be
required before scope-of-employment questions could be resolved at all.
Currently, the pleadings implicate entire agencies, not people (except
Curiel). While the Court couldn’t reach an informed decision without
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further discovery, scope-of-employment questions could easily be
handled by the jury at trial or by the Court via a 12(b)(6) motion or a
motion for summary judgment. See Williamson v. Tucker, 645 F.2d 404,
415 (5th Cir. 1981) (“Where the defendant’s challenge to the court’s
jurisdiction is also a challenge to the existence of a federal cause of
action, the proper course of action for the district court . . . is to find that
jurisdiction exists and deal with the objection as a direct attack on the
merits of the plaintiff’s case under either Rule 12(b)(6) or Rule 56.”).
Thus, this factor also favors deferring.
Third, while judicial economy always favors earlier resolution of
disputed facts, the Court’s primary duty is accuracy, not efficiency.
Furthermore, as the Court stated in Williamson:
[N]o purpose is served by indirectly arguing the merits in
the context of federal jurisdiction. Judicial economy is best
promoted when the existence of a federal right is directly
reached and, where no claim is found to exist, the case is
dismissed on the merits. This refusal to treat indirect
attacks on the merits as Rule 12(b)(1) motions provides,
moreover, a greater level of protection to the plaintiff who
in truth is facing a challenge to the validity of his [or her]
claim: the defendant is forced to proceed under Rule
12(b)(6) . . . or Rule 56 . . . both of which place greater
restrictions on the district court’s discretion.
645 F.2d at 415. In keeping with the reasoning in Williamson, the Court
sees no reason to shoehorn merits determinations into the current
jurisdictional analysis. Accordingly, this factor also favors determining
scope-of-employment questions at a later stage after discovery
facilitates more fulsome analysis.
CONCLUSION
Despite its issues, the Complaint alleges a plausible negligence claim
under the FTCA, triggering this Court’s jurisdiction. Cardenas
exhausted her administrative remedies before suing, so her case can’t
be tossed on that ground. But many of the Government’s sovereignimmunity arguments landed. In particular, the Court GRANTS the
Government’s Motion as to Cardenas’s general negligence claims (i.e.,
those not rooted in violations of clear statutory mandates). The
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discretionary-function exception “marks the boundary between
Congress’ willingness to impose tort liability upon the United States and
its desire to protect certain governmental activities from exposure to
suit by private individuals.” Empresa de Viacao Aerea Rio Grandense,
467 U.S. at 808. The Court is disinclined to cross that boundary here.
But the Court DENIES the Government’s Motion for Cardenas’s claims
based upon (1) violations of 28 C.F.R. §§ 115.61, 115.76 and (2) violations
of BOP Program Statements 3420 and 5324.
SO ORDERED on this 15th day of November 2023.

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