Battles v. USA

Decision Date30 July 2010
Docket NumberNo. 09-41039.,09-41039.
Citation613 F.3d 559
PartiesKelvin Andre SPOTTS; Billy Aguero; Marcus T. Arnold; Baena Jose Mendoza; Lloyd Battles; et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit





Norman L. Sirak (argued), Massillon, OH, for Plaintiffs-Appellants.

Eric Fleisig-Greene (argued), U.S. Dept. of Justice, Civ. Div., App. Staff, Washington, DC, Andrea Lynn Parker, Asst. U.S. Atty., Beaumont, TX, for U.S.

Appeal from the United States District Court for the Eastern District of Texas.

Before JONES, Chief Judge, and KING and HAYNES, Circuit Judges.

KING, Circuit Judge:

The plaintiffs-appellants, 453 present and former inmates of the Federal Correctional Complex, United States Penitentiary, in Beaumont, Texas, appeal the district court's dismissal of their claims under the Federal Tort Claims Act (FTCA) against the United States in connection with the decision made by Gerardo Maldonado, the Regional Director of the South Central Region of the Federal Bureau of Prisons, not to evacuate the Penitentiary in the aftermath of Hurricane Rita. 1 The plaintiffs also challenge the district court's denial of leave to amend their complaint to add Bivens claims against individual Penitentiary officials. For the reasons discussed below, we affirm.


Hurricane Rita, a Category 3 storm, came ashore on September 24, 2005, shifting eastward in the final hours before landfall away from Houston, Texas, and toward Beaumont, Texas, which sustained a direct hit. The Federal Correctional Complex in Beaumont, Texas, has three units: a low-security Federal Correctional Institution; a medium-security Federal Correctional Institution; and a high-security United States Penitentiary. Inmates from the low- and medium-security facilities were evacuated before or shortly after the hurricane's arrival. The plaintiffs in this suit, inmates from the high-security Penitentiary, were not evacuated-a decision that Maldonado made the day after the storm.

Hurricane Rita left Beaumont without electricity, water, or gasoline, and the city was declared to be part of a nine-county disaster area. The storm left the Federal Correctional Complex with significant damage, rendering its emergency generator inoperable, sweeping away large portions of its roof, and leaving it without a supply of potable water. The plaintiffs' evidence shows that Penitentiary officials attempted early on to establish a temporary power grid but that their efforts were frustrated by unexpected setbacks. Emergency generators were delivered to the Penitentiary shortly after the storm, but without sufficient heavy wire to establish a grid. This wire was not readily available, requiring Penitentiary officials to place a special order that took additional time to fill. According to the plaintiffs' allegations, the Penitentiary was without electrical power for 36 days.

The significant discomfort caused by the lack of electricity was aggravated by a heat wave that swept the region in the days after the storm. The temperature exceeded 100 degrees Fahrenheit on sixteen of the days that the facility was without electricity and exceeded 90 degrees Fahrenheit on an additional seven. Inside the Penitentiary, the temperature was sometimes much higher. Floor wax melted; the cement and brick walls sweated; within a few days 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 inmates spent their nights in pitch black darkness, without the ability to access electric emergency alarms.

The inmates allege that during the first three days after the storm, they remained locked in their cells. Inmates with chronic ailments did not have access to medical care-asthmatics could not access inhaler refills, diabetics could not get their insulin. During these first days, the inmates allege that they “received 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 so dehydrated from the heat. On September 26, 2005, the prisoners received written confirmation in a memorandum from Timothy Outlaw, the Warden of the Beaumont complex, that the Penitentiary's water source had been declared non-potable and “should not be ingested under any circumstance.”

The plaintiffs allege that when they first received a meal, four days after the storm, the food provided was sandwiches made with moldy bread and spoiled meat and cheese or peanut butter, and that from that point they received no more than two sandwiches daily until power was restored. Around the same time that the plaintiffs first received food, they began receiving one liter of sanitary water per day, though they contend that this was not sufficient to replenish fluids lost from the heat.

The inmates allege that they were not given the opportunity to shower until October 8, 2005, fourteen days after the storm. They allege that the shower water had a brownish color and offensive smell, and that the water immediately caused skin problems, such as open wound sores; peeling skin with pus; itching, burning rashes; and boils. The inmates did not receive medicine for these issues. No clean clothes were available, so the inmates were required to put their dirty clothes back on after showering.

The plaintiffs allege that they could not flush their toilets during the entire 36-day period, and that the odor of urine and feces in their cells was overpowering. 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 prisoners could relieve themselves. Filled bags were collected only at irregular intervals. 2 The plaintiffs allege that they suffered physical injuries as the result of these events, including episodes of high stress; high blood pressure and heart disease; respiratory and lung disorders (from alleged exposure to ammonia from urine and feces and to mold); heat exhaustion and heat stroke; dehydration and malnutrition; Heliobactor Pylori (H.Pylori) infection (due to alleged exposure to human waste); diarrhea (due to alleged e-coli and salmonella exposure); blood stream infections; sleep deprivation; muscle atrophy (due to inactivity during lockdown); worsening of existing medical conditions; constipation; and pain from hunger. They also allege mental injuries, including post-traumatic stress disorder; suicidal tendencies; depression; insomnia; and delusions. The plaintiffs also allege, without elaboration, that two inmates died as a result of these conditions.

The plaintiffs sued under the FTCA alleging that the decision not to evacuate the inmates after the storm gave rise to the state-law torts of negligence, recklessness, deliberate indifference, intentional infliction of emotional distress, malice, and wrongful death. 3 When the district court dismissed those claims under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, the plaintiffs sought leave to file a Fourth Amended Complaint that raised substantially the same claims in an action against individual Penitentiary officers under Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The district court adopted the magistrate judge's recommendation that leave to file the amended complaint under Federal Rule of Civil Procedure 15 be denied. The magistrate judge reasoned 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 leave to amend.


We review de novo the district court's order granting the Government's motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. St. Tammany Parish, ex rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d 307, 315 (5th Cir.2009). “In our de novo review ..., 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 omitted). In applying Rule 12(b)(1), the district court “has the power to dismiss for lack of subject matter jurisdiction on any one of three separate bases: (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.” St. Tammany Parish, 556 F.3d at 315 (internal quotation marks omitted). “Here, the district court did not resolve any disputed facts,[ 4 ] so we, as did the district court, consider the allegations in the plaintiff's complaint as true.” Id. (internal quotation marks omitted). [O]ur review is limited to determining whether the district court's application of the law is correct and, to the extent its decision [was] based on undisputed facts, whether those facts are indeed undisputed.” Id. (internal quotation marks omitted). We then ask if dismissal was appropriate. Id.

Although we generally review a district court's denial of leave to amend for abuse of discretion, where, as here, the district court's sole reason for denying such an amendment is futility, we must scrutinize that decision somewhat more closely, applying a de novo standard of review similar to that under which we review a dismissal under Rule 12(b)(6).” Wilson v. Bruks-Klockner, Inc., 602 F.3d 363, 368 (5th Cir.2010); see also Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 872-73 (5th Cir.2000).


The FTCA waives sovereign immunity and permits suit against the United States for claims sounding in state tort law for money damages. 28 U.S.C. §...

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