Ahern v. United States Of America
MEMORANDUM AND RECOMMENDATION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT re 59 MOTION for Default Judgment against United States Of America, 62 MOTION to Dismiss. Objections to M&R due by 6/2/2017(Signed by Magistrate Judge Jason B Libby) Parties notified.(jalvarez, 2)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
JOHN D AHERN
UNITED STATES OF AMERICA
May 19, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. 2:14-CV-259
MEMORANDUM AND RECOMMENDATION
ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This civil rights action was filed by a former federal prisoner pursuant to the
Federal Tort Claims Act (FTCA), 28 U.S.C. § 2674 et seq., seeking damages against the
United States of America based on the conduct of employees of the U.S. Marshals
Service (USMS). (D.E. 1, 16). In particular, Plaintiff alleges that individual United
States Marshals: (1) had actual knowledge that the medical care he was receiving at the
Coastal Bend Detention Center (CBDC), a contract facility of the Government, fell below
certain statutory and constitutional requirements; (2) had a duty to ensure Plaintiff’s
safety; and (3) failed to ensure Plaintiff’s safety by delegating its duties and evading
Pending before the Court are: (1) Plaintiff’s Motion for Default Judgment (D.E.
59); (2) the Government’s response to Plaintiff’s motion (D.E. 60); and (3) the
Government’s Motion to Dismiss Complaint under Federal Rule of Civil Procedure
12(b)(1), or in the alternative, Motion for Summary Judgment. (D.E. 62).
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For the reasons stated herein, it is respectfully recommended that the Court deny
Plaintiff’s Motion for Default Judgment. The Government’s dispositive motion will be
construed as a Rule 12(b)(1) Motion to Dismiss. Because the actions of the United States
Marshals are protected by the discretionary function exception set forth in 28 U.S.C. §
2680(a), it is respectfully recommended further that the Court grant the Government’s
Rule 12(b)(1) Motion to Dismiss.
The Court has federal question jurisdiction over this civil rights action pursuant to
28 U.S.C. § 1331.
On June 11, 2014, Plaintiff filed his FTCA original complaint. (D.E. 1). Plaintiff
alleged that, while he was in federal custody and confined at the CBDC in Robstown,
Texas, from March 16, 2011 through January 6, 2012, he was denied appropriate and
adequate medical attention for the following severe medical conditions: (1) Benign
Enlarged Prostate (BEP); (2) stomach ulcers and acid reflux; (3) fluid on the knee with
pain; (4) Restless Leg Syndrome (RLS); and (5) fever and infection following prostate
biopsy. (D.E. 1, pp. 5-11).
Following a July 15, 2014 Spears1 hearing, on July 18, 2014, the undersigned
magistrate judge entered a Memorandum and Recommendation (M&R) to dismiss
Plaintiff’s FTCA claims finding that Plaintiff had failed to allege sufficient facts to state a
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
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negligence claim against the CBDC physician, Dr. Ahmed, or the USMS by which to
hold the United States liable. (D.E. 14, pp. 7-8). In addition, it was recommended, to the
extent Plaintiff was attempting to sue any individual for the violation of his constitutional
rights under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,
403 U.S. 398 (1971), that those claims be dismissed for failure to state cognizable
constitutional violations. (D.E. 14, pp. 9-10).
On July 31, 2014, Plaintiff filed objections to the July 18, 2014 M&R. (D.E. 16).
Plaintiff emphasized that he had filed this action pursuant to the FTCA “seeking damages
against the United States of America, for the negligent and wrongful acts of certain
United States Marshals Service employees.” (D.E. 16, p. 1).
On November 10, 2014, the District Judge referred the matter back to the
undersigned to address the applicability of the FTCA to Plaintiff’s claims against the
USMS. (D.E. 18).
On December 22, 2014, a second evidentiary hearing was held. Plaintiff appeared
in person to provide testimony about his FTCA claims against the USMS. Plaintiff
testified the USMS had a “daily presence” at the CBDC. According to Plaintiff, the
USMC had an office onsite at the CBDC and the Marshals performed daily walkthroughs to “count” offenders under their charge. Although the CBDC provides the
medical staff, Plaintiff testified he submitted his grievances concerning medical care
directly to the USMS and he repeatedly spoke to two Marshals in particular, Deputy
Shannon Nash and Deputy Alfredo Lujan, about his medical needs. His complaints
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His monthly medications were always delayed, causing him to miss
approximately ten (10) days of Doxazosin a month;
Although Plaintiff was seen by a urologist to perform a prostate biopsy, he
was never “treated” by a urologist and was simply given Doxazosin by Dr.
Ahmed based on Plaintiff’s representation that he had been prescribed it in
the free world;
Plaintiff was prescribed Naproxen for complaints of pain. Not only did he
need stronger pain medication, but the Naproxen caused him severe
gastrointestinal problems, including stomach ulcers and acid reflux. The
CBDC physician, Dr. Ahmed, told Plaintiff the USMS would not approve
stronger pain medication;
Plaintiff suffered fluid on the knee but was never examined or diagnosed by
a doctor but only prescribed more Naproxen;
Plaintiff requested to see a neurologist for his RLS but the USMS ignored
When Plaintiff had his prostate biopsy, his antibiotic prescription was lost
and he suffered a serious infection with fever. The USMS was responsible
for ensuring the prescription was filled and administered timely and this did
not happen; and
Plaintiff complained to Deputy Lujan and Deputy Nash and these Marshals
both assured him that his medical needs would be met. Plaintiff also filed
numerous grievances with the USMS but he did not receive responses.
On January 8, 2015, the undersigned entered a supplemental M&R recommending
that any FTCA claim premised on the conduct of a non-government employee, in
particular Dr. Ahmed or other CBDC employee, be dismissed for failure to state a claim,
and also that any constitutional claim against an individual defendant brought pursuant to
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 398
(1971) be dismissed on those same grounds.
(D.E. 21, p. 10).
However, it was
recommended that Plaintiff’s FTCA claim against the United States, premised on the
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conduct of the USMS and its control over what medications and medical treatment
Plaintiff was authorized to receive, in addition to how his grievances concerning that care
were addressed, be retained. (D.E. 12).
On February 23, 2015, the Court adopted the supplemental M&R. (D.E. 26).
On March 16, 2015, the Government filed a Rule 12(b)(6) Motion to Dismiss, or
in the Alternative, Motion for Summary Judgment arguing the CBDC is an independent
contractor such that the United States cannot be responsible for any of the CBDC’s
actions or inactions. (D.E. 27, pp. 2-3).
On July 15, 2015, the undersigned entered a M&R recommending the
Government’s dispositive motion be denied because, taking the allegations in Plaintiff’s
complaint as true, he had alleged sufficient facts to state an FTCA claim against the
Government, and the Government had failed to offer any evidence to suggest that it
should be protected from liability under the independent contractor exception to the
FTCA, such as “a copy of the contract it has with the CBDC or an affidavit from an
employee with personal knowledge who can testify as to how medical treatment was
assessed, provided, and evaluated at the CBDC.” (D.E. 29, pp. 6-7).
On January 11, 2016, the District Court adopted the July 15, 2015 M&R denying
the Government’s motion to dismiss (D.E. 32), and on January 22, 2016, the Government
filed its Answer to Plaintiff’s complaint. (D.E. 33).
On September 30, 2016, the Government filed a Rule 12(b)(6) Motion to Dismiss,
or in the Alternative, Motion for Summary Judgment reiterating that the CBDC is an
independent contractor such that the United States cannot be responsible for any of the
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CBDC’s actions or inactions. (D.E. 40, pp. 2-3). Because the Government relied on
matters outside of the pleadings, the undersigned construed the motion as one for
summary judgment pursuant to Fed. R. Civ. P. Rule 56(c). (D.E. 40, pp. 10-12). On
November 28, 2016, the undersigned entered a M&R recommending the Government’s
summary judgment motion be granted because: (1) the uncontested evidence had
established that the Government delegated Plaintiff’s medical treatment to the CBDC,
which is an independent contractor; and (2) the Government, therefore, is shielded from
liability pursuant to Logue v. United States, 412 U.S. 521 (1973). (D.E. 50, pp. 16-17).
On December 12, 2016, Plaintiff filed objections to the September 30, 2016 M&R.
(D.E. 54). Plaintiff again emphasized in his objections that he is not seeking to assign
vicarious liability for the CBDC’s negligence to the Government. (D.E. 54, p. 2).
On January 3, 2017, the District Judge sustained Plaintiff’s objection, rejected the
September 30, 2016 M&R, and denied the Government’s summary judgment motion.
(D.E. 58). The District Judge concluded that the parties have yet to consider whether the
Government may delegate its constitutional duties and evade liability when its employees
are on notice of a constitutional violation. (D.E. 58, p. 2). In a pretrial conducted on
January 6, 2017, the District Judge granted the Government sixty (60) days to amend its
answer and ninety (90) days to file a motion to dismiss.
On January 12, 2017, Plaintiff filed a Motion for Default Judgment pursuant to
Federal Rule of Civil Procedure 55. (D.E. 59). The Government subsequently filed its
response in opposition. (D.E. 60).
On March 6, 2017, the Government filed its Amended Answer.
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On April 5, 2017, the Government filed a Rule 12(b)(1) Motion to Dismiss, or in
the Alternatively, Motion for Summary Judgment. (D.E. 62). Plaintiff has not responded
to the Government’s dispositive motion.
MOTION FOR DEFAULT JUDGMENT
Rule 55 authorizes the Court clerk to enter default “[w]hen a party against whom a
judgment for affirmative relief is sought has failed to plead or otherwise defend, and that
failure is shown by affidavit or otherwise.” Fed. R. Civ. P. 55(a).
Plaintiff moves for a Rule 55 default judgment, arguing that the District Judge has
now twice denied the Government’s summary judgment motions in which the
Government has not addressed the pertinent allegations of this case. (D.E. 59, p. 3).
Plaintiff seeks a default judgment “based on the record and the failure of the
[Government] to mount any defense towards the material facts at issue.” (D.E. 59, p. 3).
The Government responds that Plaintiff’s Motion for Default Judgment is without merit
as it has pleaded and defended this case at all stages of the proceeding. (D.E. 60, pp. 12).
The fact that the District Judge has denied any of the Government’s dispositive
motions to date does not entitle Plaintiff to entry of default judgment. The record reflects
that: (1) the Government has pleaded and vigorously defended their case throughout the
course of these proceedings; and (2) the Government recently complied with the District
Court’s directive on January 6, 2017 to file an amended answer within sixty (60) days
and a motion to dismiss within ninety (90) days. (See D.E. 61 and 62). Accordingly, it is
respectfully recommended that Plaintiff’s Motion for Default Judgment be denied.
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In arguing that Plaintiff’s FTCA claim for negligence against the individual
United States Marshals falls within the discretionary function exception, the Government
seeks dismissal pursuant to Rule 12(b)(1). The Government alternatively moves for
summary judgment. Before considering whether the discretionary function exception
applies, it is necessary to determine the appropriate standard of review.
Under Rule 12(b)(1), a party may challenge the subject matter jurisdiction of the
district court to hear a case. “In ruling on a motion to dismiss for lack of subject matter
jurisdiction, courts, may evaluate (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.” See Den
Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir. 2001) (citing
Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996)). A court must
accept all factual allegations in the plaintiff’s complaint as true. Id. The burden of
establishing subject matter jurisdiction in federal court is on the party seeking to invoke
it. Hartford Ins. Group v. Lou-Con Inc., 293 F.3d 908, 910 (5th Cir. 2002). Accordingly,
Plaintiff must prove that jurisdiction does in fact exist. Menchaca v. Chrysler Credit
Corp., 613 F.2d 507, 511 (5th Cir. 1980).
“A case is properly dismissed for lack of subject matter jurisdiction when the court
lacks the statutory or constitutional power to adjudicate the case.” Krim v. PCOrder.com,
Inc., 402 F.3d 489, 494 (5th Cir. 2005) (citations omitted). In considering a challenge to
subject matter jurisdiction, the district court is “free to weigh the evidence and resolve
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factual disputes in order to satisfy itself that it has the power to hear the case.” Id. “If the
court determines at any time that it lacks subject-matter jurisdiction, the court must
dismiss the action.” Fed. R. Civ. P. 12(h)(3).
Generally, the issue of sovereign immunity is jurisdictional in nature. F.D.I.C. v.
Meyer, 510 U.S. 471, 474 (1994). “The question of whether the United States has waived
sovereign immunity pursuant to the FTCA goes to the court’s subject-matter jurisdiction .
. . and may therefore, be resolved on a Rule 12(b)(1) motion to dismiss.” Willoughby v.
U.S. ex rel U.S. Dep’t of the Army, 730 F.3d 476, 479 (5th Cir. 2013) (internal citations
omitted). See also ALX El Dorado, Inc. v. Southwest Sav. & Loan Ass’n/FSLIC, 36 F.3d
409, 410 n.5 (5th Cir. 1994) (noting that a motion to dismiss based upon governmental
immunity from suit is properly viewed as one contesting subject matter jurisdiction under
Rule 12(b)(1)). However, “[i]n circumstances 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 plaintiff’s case’ under either Rule
12(b)(6) or Rule 56.” Montez v. Dep’t of Navy, 392 F.3d 147, 149 (5th Cir. 2004)
(quoting Williamson v. Tucker, 645 F.2d 404, 415 (5th Cir. 1981)). “
Courts have applied a Rule 12(b)(1) standard to review motions to dismiss
asserting that an FTCA claim falls within the discretionary function exception when the
discretionary function issue and the merits can be separately considered and decided.”
Larue v. National Park Service of the Dep’t of the Interior, No. B-09-139, 2011 WL
1828037, at *4 (S.D. Tex. May 12, 2011) (citations omitted).
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In this case, the
undersigned finds that it can separately determine the applicability of the discretionary
function exception and the merits of Plaintiff’s negligence claims. Therefore, the Court
will evaluate the Government’s motion as a Rule 12(b)(1) motion to dismiss for lack of
The Government contends in its Rule 12(b)(1) motion that: (1) the FTCA excludes
suits based upon the exercise of discretionary function; and (2) Plaintiff’s negligence
claims are, therefore, barred as they fall within the FTCA’s discretionary function
exception set forth in 28 U.S.C. § 2680(a). (D.E. 62, pp. 4-10). The Government further
contends that the FTCA “is an inappropriate vehicle for bringing constitutional rights
claims.” (D.E. 62, pp. 10-11). Lastly, assuming Plaintiff has properly preserved any
constitutional violations against individual deputy Marshals, the Government contends
that Plaintiff cannot demonstrate an Eighth Amendment deliberate indifference claim.
(D.E., pp. 11-14).
As noted above, Plaintiff has not responded to the Government’s dispositive Rule
12(b)(1) motion. The motion, therefore, is deemed unopposed.2 Nevertheless, in his
objections to the September 30, 2016 M&R, Plaintiff argued that individual United States
Marshals, who are employees of the Government, had actual knowledge that the care he
was receiving fell below constitutional requirements and had a duty to ensure his safety.
According to the Local Rules for the Southern District of Texas, “[f]ailure to respond will be taken as a
representation of no opposition.” LR 7.4.
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(D.E. 54, pp. 2-3). More specifically, Plaintiff contended that three USMS officers,
including Deputies Nash and Lugan, “failed to act decisively when charged with a duty
of care, in the face known  medical needs and a possibility of harm or danger.” (D.E.
54 at p. 2).
Accordingly, pursuant to various federal statutes, regulations, and the
Detention Services Intergovernmental Agreement (“DSIA”) entered between the USMS
and Nueces County, Texas, Plaintiff alleged that these USMS officers breached a duty of
care owed to Plaintiff to provide for the housing of federal detainees at the CBDC. (D.E.
54, p. 2).
The United States is immune from suit unless it consents to be sued, and the terms
of such consent or waiver of its sovereign immunity “define [the] Court’s jurisdiction to
be sued.” United States v. Testan, 424 U.S. 392, 399 (1976). The FTCA constitutes a
limited waiver of sovereign immunity. See 28 U.S.C. § 1346(b). The FTCA authorizes a
civil action lawsuit for damages:
for injury or loss of property, or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment, under
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
Id.; Quijano v. United States, 325 F.3d 564, 567 (5th Cir. 2003).
The FTCA, however, excludes discretionary functions from this waiver of
See 28 U.S.C. § 2680(a).
This exception provides that the
sovereign immunity waiver does not apply to:
any claim based upon an act or omission of an employee of the
Government, exercising due care, in the execution of a statute or regulation,
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whether or not such statute or regulation be valid, or based upon the
exercise or performance or the failure to exercise or perform a discretionary
function or duty on the part of the federal agency or an employee of the
Government, whether or not the discretion involved be abused.
“To state a claim under the FTCA, a plaintiff has the burden of stating a claim for
a state-law tort and establishing that the discretionary function exception does not apply.”
Spotts v. United States, 613 F.3d 559, 569 (5th Cir. 2010) (citing St. Tammany Par. Ex
rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d 307, 215 (5th Cir. 2009)). If the
exception is found to apply, the FTCA claim must be dismissed for lack of subject-matter
jurisdiction. Cohen v. United States, 151 F.3d 1338, 1341 (5th Cir. 1998).
To determine whether the discretionary function exception bars suit against the
United States in a particular case, the Court must consider: (1) whether the conduct of the
Government employee involves an element of judgment or choice; and (2) if so, whether
that judgment is grounded in considerations of public policy. Cohen, 151 F.3d at 1341
(citing United States v. Gaubert, 499 U.S. 315, 322-23 (1991)). Under the first prong of
the discretionary functions exception, courts must determine whether a statute, regulation
or policy mandates a specific course of action. Gaubert, 499 U.S. at 322. The second
prong of the analysis requires the courts to determine whether the judgment or choice is
“grounded in social, economic, or political policy.” Id. at 323. Thus, “[w]hen . . . a
governmental agent violates a nondiscretionary federal law, regulation, or express policy,
a suit against the United States may go forward subject to other FTCA, state tort laws,
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and procedural requirements.”
Lopez v. United States Immigration and Customs
Enforcement, 455 F. App’x 427, 432 (5th Cir. 2011).
Before considering whether the discretionary function exception bars Plaintiff’s
negligence claim against the individual United States Marshals, the undersign will first
determine whether the USMS’s decision to contract with the CBDC is covered by the
discretionary functions exception. The first step of the Gaubert analysis instructs courts
to analyze whether the USMS had discretion to contract with the CBDC. The USMS is
charged with the responsibility for the safekeeping, care, and secure transfer of prisoners
or detainees within its custody. See 18 U.S.C. §§ 4042(a)(2) and 4086. However, while
generally expressing the policy goal of providing for the safekeeping and care of
individuals in federal custody, none of these statutes either specify the method for such
safekeeping and care or otherwise define a non-discretionary course of action. See
Bethae v. United States, 465 F. Supp. 2d 575, 582 (D. S.C. 2006) (stating that while §§
4042 and 4086 are very similar, “neither specify the method for such safekeeping”);
Garza v. United States, 161 F. App’x 341, 343 (5th Cir. Dec. 20, 2005) (unpublished)
(holding that § 4042 does not “define a non-discretionary course of action specific
enough to render the discretionary function exception applicable”).
Additional statutes and regulations permit the USMS to contract with state, local,
or private jails to house federal inmates or detainees. See 18 U.S.C. §§ 4002 and 4013
(recognizing that the USMS, on behalf of the Attorney General, may contract with nonFederal institutions to house federal detainees or prisoners); 28 C.F.R. § 0.111(o) (stating
that the USMS may acquire “adequate and suitable detention space, health care and other
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services and materials required to support prisoners” within its custody “who are not
housed in Federal facilities”). See also Logue v. United States, 412 U.S. 521, 529 (1973).
(recognizing that Congress authorizes the United States to contract with state and local
authorities to provide safekeeping and care for federal detainees or prisoners). The
USMS, therefore, retained discretion to contract with a non-federal facility such as the
CBDC to provide for the safekeeping and care for federal detainees.
With regard to the second prong of the Gaubert test, the USMS must weigh a
variety of policy concerns in its decision to contract with a non-Federal facility. See
Johnson v. United States, No. 4:05-CV40, 2006 WL 572312, at *5 (E.D. Va. Mar. 7,
2006) (citing Williams v. United States, 50 F.3d 299, 310 (4th Cir. 1995)) (explaining that
the decision to hire an independent contractor to house federal prisoners involved
weighing concerns of expense, administration, and access to the premises). Section 4002,
which permits the USMS to contract with outside facilities, requires the USMS to balance
factors such as expenses for the care and custody of federal prisoners, the sanitary
conditions of confinement, and the quality of health care provided. See 18 U.S.C. §
In exercising its discretion to contract with an outside facility, the USMS entered
into the DSIA with the CBDC on March 17, 2009, to house federal detainees at the
CBDC. (D.E. 45-4, pp. 1-3). The agreement reflects the consideration of many policy
concerns related to providing medical services for federal detainees. The DSIA expressly
provides that: “This agreement is for the housing, safekeeping, and subsistence of federal
prisoners, in accordance with [the] content set forth herein.” (D.E. 45-4, p. 1). “Medical
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Services” is specifically addressed within the agreement.
(D.E. 45-4, pp. 5-6).
provides in relevant part:
The Local Government shall provide federal detainees with the full range of
medical care inside the detention facility. The level of care inside the
facility should be the same as that provided to state and local detainees.
The Local Government is financially responsible for all medical care
provided inside the facility to federal detainees. This includes the cost of
medical supplies, over the counter prescriptions and, and prescription
medications routinely stocked by the facility which are provided to federal
The Federal Government is responsible for all medical care provided
outside the facility to federal detainees.
All outside medical care provided to federal detainees must be preapproved by the Federal Government.
Medical care for federal detainees shall be provided by the Local
Government in accordance with the provisions of USMS, Publication 100Prison
(www.usmarshals.gov/prisoner/standards.htm) and in compliance with
USMS Inspection Guidelines, FormUSM-218 Detention Investigation
Report. The local Government is responsible for all associated medical
(D.E. 45-4, p. 5) (emphasis in original).
The decision by the USMS to engage with the CBDC to house federal detainees is
grounded in competing policy concerns related to the needs of the detainees and the costs
associated in providing health care and other adequate conditions of confinement. After
reviewing the relevant statutes and the DSIA’s provisions addressing housing and
medical care issues, the USMS’s decision to contract with the CBDC “falls within the
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discretionary function exception as it involves ‘administrative decisions grounded in
social, economic, and political policy.’” Johnson, 2006 WL 572312, at *5 (citing United
States v. S.A. Empressa de Viacao Aerea Rio Grandense (Variq Airlines), 467 U.S. 797,
814 (1984)). See also Williams, 50 F.3d at 310 (recognizing that “[t]he decision to hire
an independent contractor to render services for the United States is precisely the type of
decision that the [discretionary function] exception is designed to shield from liability”).
The undersigned now turns to consider whether the discretionary function
exception also shields any negligent actions undertaken by the individual United States
Marshals with respect to its oversight of the medical care received by Plaintiff at the
CBDC. The Fifth Circuit Court of Appeals considered a similar issue in Lopez v. United
States Immigration and Customs Enforcement, 455 F. App’x 427 (5th Cir. 2011). In
Lopez, the USMS contracted with the Crystal City Correctional Center (“CCCC”) for the
housing, care, and safekeeping of federal prisoners. Id. at 430. Julio Adalberto RivasParada (“Parada”) was housed at the CCCC after being taken into custody by Border
Patrol agents. Id. at 429. Parada sought treatment in the CCCC for various ailments, but
his condition continued to deteriorate despite receiving medical treatment. Id. at 430.
After Parada was taken to the hospital, he ultimately died “of a heart attack precipitated
by a fatal electrolyte imbalance from his malnutrition, diarrhea, and vomiting.” Id.
The plaintiffs in Lopez filed a FTCA action against the United States, asserting in
part that the USMS committed negligence with respect to its failure to oversee Parada’s
medical care at the CCCC. Id. at 431. Because “USMS policies mandated the USMS to
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ensure adequate medical care, the plaintiffs argued that the USMS’s failure to monitor
CCCC’s operation violated these non-discretionary policies.” Id.
In considering whether to apply the discretionary function exception, the Fifth
Circuit analyzed USMS policies which: (1) authorized the USMS to ensure that all
USMS prisoners, such as Parada, receive medically necessary health services; (2)
directed all emergency services to be provided to prisoners immediately; (3) authorized
the USMS to meet minimum conditions of confinement, including adequate emergency
medical coverage. Id. at 434 (citing U.S. MARSHALS SERV., POLICY DIRECTIVES
§§ 9.15(C)(1), 9.25(A) and (A)(3) (2006)). After reviewing the language contained in
these USMS directives, the Fifth Circuit did not “perceive a nondiscretionary failure by
the USMS.” Id. Rather, the Fifth Circuit concluded that the USMS’s supervision of the
CCCC, including the degree to which it exercised any oversight of CCCC’s operations,
was covered by the discretionary function exception. Id. See Guile v. United States, 422
F.3d 221, 231 (5th Cir. 2005) (“Supervision of a contractor’s work, including the degree
of oversight to exercise, is inherently a discretionary function.”).
A negligence claim similar to Plaintiff’s claim also was raised in Johnson v.
United States, No. 4:05-CV40, 2006 WL 572312 (E.D. Va. Mar. 7, 2006). In Johnson,
the plaintiff’s deceased father, George Edward Fields (“Fields”), was a prisoner housed at
the Virginia Peninsula Regional Jail (“VPRJ”). Id. at *1. Fields was diagnosed with
prostate cancer in August of 1999, two months before his arrest and incarceration in the
VPRJ. Id. Fields was held in custody at the VPRJ both before and after his federal jury
trial in which he was convicted. Id. Fields’s condition worsened while he awaited
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sentencing, and he died on April 27, 2000 from prostate cancer and widespread
The USMS had previously entered into a contract with the VPRJ for the custody,
care, and safekeeping of federal prisoners.
Under the contract, the VPRJ was
required to provide the federal prisoners with the same level of medical care and services
provided to local prisons. Id. While the contract allowed for the USMS to conduct
periodic inspections of the VPRJ, the contract set forth that the VPRJ was responsible for
the day-to-day operations which included around the clock emergency medical care for
the prisoners. Id. In addition to challenging the USMS’s decision to contract with the
VPRJ, the plaintiff asserted that the USMS was negligent in failing to provide medical
care to Fields even though the USMS had contracted with the VPRJ to provide medical
services. Id. at *5.
The Virginia district court first concluded that the USMS’s decision to contract
with the VPRJ to house and provide medical care to federal prisoners was shielded by the
discretionary function exception. Id. The court likewise rejected plaintiff’s negligence
claim, holding that:
[A]fter concluding that contracting with the VPRJ to provide housing and
medical care is within the ambit of the discretionary function exception,
any contentions that the USMS was still negligent for failing to provide
medical care cannot prevail, as the medical care decisions are embraced by
the overarching decision to engage the VBRJ.
Id. (internal quotations omitted).
Similar to the contract at issue in Johnson, the DSIA provided that the CBDC was
responsible for Plaintiff’s day-to-day medical care inside the CBDC. While Plaintiff has
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communicated to several United States Marshals his multiple concerns over the medical
care he received at the CBDC, any negligent conduct by these marshals in failing to act
on Plaintiff’s behalf falls with the discretionary function exception. Plaintiff has failed to
point to any statute or regulation that confers a nondiscretionary duty on the part of the
United States Marshals to respond to Plaintiff’s medical care concerns, especially when
all medical care matters inside the facility have been delegated to the CBDC under the
DSIA. The decision to entrust the CBDC with these medical care decisions comports
with the USMS’s overarching decision to contract with the CBCD for the housing and
safekeeping of federal detainees like Plaintiff. See Johnson, 2006 WL 572312, at *6.
The final issue to address is whether the discretionary function exception applies
to conduct by any United States Marshal that may be viewed as a constitutional violation.
In 2009, a divided Fifth Circuit panel held that: (1) certain conduct of Border Patrol
Agents in detaining a child with her father may have implicated constitutional concerns;
(2) such conduct may have been non-discretionary; and (3) the district court, therefore
“legally erred in concluding that the discretionary function exception to the FTCA
deprived it of jurisdiction without first determining whether the Agents’ conduct was
outside their scope of authority.” Castro v. United States, 560 F.3d 381, 392 (5th Cir.
2009). However, this panel decision was vacated upon rehearing en banc and has no
precedential value. Castro v. United States, 608 F.3d 266, 268-69 (5th Cir. 2010) (en
banc) (per curiam).
To date, the Fifth Circuit has yet to issue a controlling opinion determining
“whether a constitutional violation, as opposed to statutory, regulatory, or policy
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violations actions, operates to preclude the application of the discretionary function
exception.” Spotts, 613 F.3d at 569.3 In an unpublished decision, however, the Fifth
Circuit concluded that the Eighth Amendment’s prohibition against cruel and unusual
punishment did not define a course of action “specific enough to render the discretionary
function exception inapplicable.” See Garza, 161 F. App’x at 343. See also Santos v.
United States, No. 05-60237, 2006 WL 1050512, at *3 (5th Cir. 2006) (per curiam)
(unpublished) (affirming the district court’s holding that a claim based on a violation of
the Eighth Amendment does not fall outside the discretionary function exemption
because “the government has not waived its immunity with regard to constitutional
Plaintiff states in his original complaint that, based on the United States Marshals’
violation of an established duty of care, individual marshals proceeded to act with
deliberate indifference by failing to respond to conditions of which they were put on
notice that posed a substantial risk of serious harm to Plaintiff. (D.E. 1, pp. 3-4). While
making further references in his September 30, 2016 objections to the violations of his
constitutional rights, Plaintiff also stated therein that his action “is ONLY about the
In contrast to the Fifth Circuit, many other circuits have recognized that the discretionary function exception does
not protect government officials from liability under the FTCA when they exceed the scope of their constitutional
authority. See, e.g. Loumiet v. United States, 828 F.3d 935, 943 (D.C. Cir. 2016) (holding that “the FTCA’s
discretionary-function exception does not provide a blanket immunity against tortious conduct that a plaintiff
plausibly alleges also flouts a constitutional prescription”); Limone v. United States, 579 F.3d 79, 102 (1st Cir. 2009)
(holding that the challenged “conduct was unconstitutional and, therefore, not within the sweep of the discretionary
function exception”); U.S. Fidelity & Guar. Co. v. U.S., 837 F.2d 116, 120 (3d Cir. 1988) (recognizing that “conduct
cannot be discretionary of it violates the Constitution,” and “[f]ederal officials do not possess discretion to violate
constitutional rights or federal statutes”).
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USMS officers breach of duty owed to the Plaintiff by way of” §§ 4013 and 4042 as well
as the DSIA. (D.E. 54 , p. 2 (emphasis in original)).
As clarified in his September 30, 2016 objections, Plaintiff appears to predicate his
negligence claim against the United States Marshals based primarily on violations of
statutory or regulatory policies as opposed to the violations of his constitutional rights.
Plaintiff offers no response or otherwise advances any argument to suggest that any
alleged constitutional violations committed by the United States Marshals preclude the
application of the discretionary function exception. Even assuming that Plaintiff had
successfully raised this argument, the undersigned adopts the reasoning articulated in
Garza and concludes that the constitutional rights afforded to Plaintiff under the Fifth
Amendment as a pretrial detainee fail to define a set course of conduct with respect to his
medical care that would be considered to be non-discretionary.4 See Garza, 161 F. App’x
at 343. See also Fabian v. Dunn, No. SA-08-cv-269-XR, 2009 WL 2567866, at *8 (W.D.
Tex. Aug. 14, 2009) (adopting the reasoning in Garza to conclude that the plaintiffs’
FTCA claims are barred by the discretionary function exception and rejecting argument
that the Fifth Amendment mandated a specific course of action); Champion v. United
States, No. 09-1655, 2010 WL 11463694, at *1 (W.D. La. Oct. 28, 2010) (concluding
that the Eighth Amendment is not “specific enough, on its own, to prescribe a non-
A pretrial detainee’s protections from a federal official’s deliberate indifference flow from the Fifth Amendment
rather than the Eighth Amendment’s prohibition against cruel and unusual punishment. Cardenas v. Young, No. B14-256, 2014 WL 12641034, at *7 (S.D. Tex. Dec. 24, 2014). “Nevertheless, there is no significant distinction
between pretrial detainees and convicted inmates when the denial of medical care is at issue.” Pharris v. Randall
County Sheriff, No. 2:07-CV-0098, 2010 WL 1644202, at *4 (N.D. Tex. Apr. 22, 2010) (citing Gibbs v. Grimmette,
254 F.3d 545, 548 (5th Cir. 2001)).
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discretionary course of conduct which would render the discretionary function exception
Accordingly, Plaintiff’s FTCA claim that the individual United States Marshals
acted negligently with respect to the medical care received by Plaintiff at the CBDC is
barred by the discretionary function exception.5
For the reasons discussed above, it is respectfully recommended that the Court: (1)
deny Plaintiff’s Motion for Default Judgment (D.E. 59); (2) grant the Government’s
Rule12(b)(1) Motion to Dismiss (D.E. 62) because the actions of the individual United
States Marshals are protected under the FTCA’s discretionary function exception; and (3)
dismiss this action with prejudice for lack of subject matter jurisdiction.
Respectfully submitted this 19th day of May, 2017.
Jason B. Libby
United States Magistrate Judge
To the extent that Plaintiff seeks to bring a constitutional tort claim against the United States, such a claim is not
actionable under the FTCA. See Meyer, 510 U.S. at 478 (“The United States simply has not rendered itself liable
under § 1346(b) for constitutional tort claims”).
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NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to
each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy
of the Memorandum and Recommendation, a party may file with the Clerk and serve on
the United States Magistrate Judge and all parties, written objections, pursuant to Fed. R.
Civ. P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District
Court for the Southern District of Texas.
A party’s failure to file written objections to the proposed findings, conclusions,
and recommendation in a magistrate judge’s report and recommendation within
FOURTEEN (14) DAYS after being served with a copy shall bar that party, except upon
grounds of plain error, from attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the District Court. Douglass v. United Servs.
Auto Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).
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