Shivers v. United States

Citation1 F.4th 924
Decision Date09 June 2021
Docket NumberNo. 17-12493,17-12493
Parties Mackie L. SHIVERS, Jr., Plaintiff-Appellant, v. UNITED STATES of America, Dale Grafton, Unit Manager, USP Coleman 2, T. Anthony, Counselor, USP Coleman 2, FNU Spurlock, Counselor, USP Coleman 2, FNU Gay, Psychologist, USP Coleman 2, FNU Barker, Case Manager, USP Coleman 2, et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Charles F. Spainhour, Bradley Arant Boult Cummings, LLP, Nashville, TN, Mackie L. Shivers, Jr., USP Coleman II - Inmate Legal Mail, Coleman, FL, FCC Coleman - USP II Warden, USP Coleman II - Inmate Trust Fund, Coleman, FL, for Plaintiff - Appellant.

Roberta Josephina Bodnar, U.S. Attorney's Office - FLM, Ocala, FL, Ocala, FL, Jennifer Waugh Corinis, Greenberg Traurig, PA, Tampa, FL, Michelle Thresher Taylor, U.S. Attorney's Office, Tampa, FL, for Defendants - Appellees.

Before WILSON, LAGOA, and HULL, Circuit Judges.

HULL, Circuit Judge:

Mackie Shivers, a federal inmate, brought this civil action following an attack by his cellmate, Marvin Dodson. In his pro se complaint, Shivers alleged that prison officials negligently assigned Dodson to his cell and that their conduct also violated his Eighth Amendment rights. Shivers brought suit against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b)(1) and against five prison employees under Bivens.1

The district court dismissed Shivers's FTCA claim against the United States based on the discretionary function exception, 28 U.S.C. § 2680(a), to the FTCA's waiver of sovereign immunity. It dismissed without prejudice his Bivens claim against the prison employees for failure to exhaust his administrative remedies. After review, and with the benefit of oral argument, we affirm the district court's dismissal of Shivers's claims.


In August 2015, Shivers was a 64-year-old inmate at a federal prison. Dodson was a 26-year-old, mentally unstable inmate at the same prison. Prison officials assigned Dodson to Shivers's cell. Both were imprisoned for cocaine drug convictions. After eight months without incident, Dodson stabbed Shivers in the eye with a pair of scissors while Shivers was sleeping. Shivers is now permanently blind in that eye.

Following the attack, Shivers pursued his administrative remedies with help from another inmate, Gordan Reid. The parties agree that Shivers properly completed the first three steps of the process—submission of BP-8, BP-9, and BP-10 forms. Shivers received denials at each level. Shivers believes he properly completed the fourth and final step of the administrative process—submission of the BP-11 form—but the government claims that it never received the form.

After he thought he had exhausted his administrative remedies, Shivers brought this FTCA and Bivens action against the United States and five prison employees (collectively, "the government"). His pro se complaint alleged that prison officials knew or should have known before they assigned Dodson to Shivers's cell that Dodson "was presenting aggressive and violent tendencies toward other prisoners"—especially his cellmates—and that he had a history of assaulting his cellmates. His complaint also alleged that he was afraid for his safety, and that he voiced those concerns to prison officials. He claimed that the government's conduct was negligent, and that his "[r]ight to be free of cruel and unusual [p]unishment was violated."

The government moved to dismiss or for summary judgment. Of relevance here, the government argued that the discretionary function exception barred Shivers's FTCA claim. It also asserted that Shivers had failed to exhaust his administrative remedies as to his Bivens claim. The government attached a copy of the Bureau of Prison's ("BOP") SENTRY Administrative Remedy Generalized Retrieval database showing that the Central Office never received Shivers's BP-11 form.

As to the discretionary function exception, Shivers argued that he should be given the opportunity to conduct discovery to challenge the government's arguments and declarations about application of the exception. And as to the Bivens claim, Shivers argued that he had taken all necessary steps to exhaust his administrative remedies, providing his and Reid's declarations in support. The declarations said that Reid had helped him prepare the BP-11 form to be mailed to the Central Office in Washington, D.C.; that Shivers had provided Reid with a signed and dated copy of the form; and that Shivers had told Reid that he handed a stamped envelope containing the original to the prison's institutional-mail officer. Shivers also claimed that he had repeatedly asked various prison officials about the status of his BP-11 appeal to no avail. Shivers attached an unsigned copy of the BP-11 form to his declaration, claiming it was a "true and correct copy" of the form he submitted to the Central Office.

The district court granted the government's motion to dismiss. The court dismissed Shivers's FTCA claim for lack of subject matter jurisdiction because the discretionary function exception barred Shivers's claim against the United States. It dismissed Shivers's Bivens claim for failure to exhaust administrative remedies. Shivers appeals both dismissals. This Court appointed appellate counsel for Shivers.

A. The FTCA, 28 U.S.C. § 1346(b)(1)

For starters, Shivers's FTCA tort claim is against only the United States which, as a sovereign entity, is immune from suit without the consent of Congress. United States v. Mitchell, 445 U.S. 535, 538, 100 S. Ct. 1349, 1351, 63 L.Ed.2d 607 (1980). The FTCA represents a limited congressional waiver of sovereign immunity for injury or loss caused by the "negligent or wrongful act or omission" of a government employee "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 omission occurred." 28 U.S.C. § 1346(b)(1). The FTCA addresses violations of state law by federal employees, not federal constitutional claims. See F.D.I.C. v. Meyer, 510 U.S. 471, 477–78, 114 S. Ct. 996, 1001, 127 L.Ed.2d 308 (1994) (explaining a "constitutional tort claim is not ‘cognizable’ under § 1346(b)" because the source of substantive liability under the FTCA is state law, not federal law).

B. Exception in 28 U.S.C. § 2680(a)

Nonetheless, the FTCA broadly exempts (from the FTCA's waiver of sovereign immunity) "[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a) (emphasis added). The upshot of § 2680(a) is that when the United States's performance of a "function or duty" involves discretion, the fact that the discretion was misused or abused in any way does not lead to liability for the U.S. Treasury. "[T]he purpose of the exception is to prevent judicial second-guessing of ... administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." United States v. Gaubert, 499 U.S. 315, 323, 111 S. Ct. 1267, 1273, 113 L.Ed.2d 335 (1991) (quotation marks omitted).

C. Gaubert’s Two-Prong Test

United States v. Gaubert and its two-prong test govern the application of the FTCA's discretionary function exception. 499 U.S. at 322–23, 111 S. Ct. at 1273–74. In Gaubert’s two-prong test, the Supreme Court expressly instructed courts how to determine whether challenged government conduct involves "a discretionary function or duty" for purposes of § 2680(a) ’s exception. Id. at 322–23, 111 S. Ct. at 1273 (quoting 28 U.S.C. § 2680(a) ). First, a court must determine whether the conduct challenged by the plaintiff was "discretionary in nature"—that is, whether it involved "an element of judgment or choice." Id. at 322, 111 S. Ct. at 1273 (quotation marks omitted). Second, a court must evaluate "whether that judgment [or choice] is of the kind that the discretionary function exception was designed to shield." Id. at 322–23, 111 S. Ct. at 1273 (quotation marks omitted).

Applying Gaubert’s two-prong test, our Court has squarely held that the category of conduct challenged here—inmate-classification and housing-placement decisions—involves "a discretionary function or duty" protected by § 2680(a) ’s exception. Cohen v. United States, 151 F.3d 1338, 1340, 1342–45 (11th Cir. 1998) (quoting 28 U.S.C. § 2680(a) ) (concluding in an FTCA case that prison officials’ actions in classifying prisoners and placing them in institutions—actions that "are part and parcel of the inherently policy-laden endeavor of maintaining order and preserving security within our nation's prisons"—involve conduct or decisions that meet both prongs of the discretionary function exception). In Cohen, our Court held that, while 18 U.S.C. § 4042 "imposes on the BOP a general duty of care to safeguard prisoners," it "leaves BOP personnel sufficient discretion about how their § 4042 duty of care is to be accomplished to warrant application of the discretionary function exception." Id. at 1342. Thus, inmate-classification and housing-placement decisions fall squarely within the discretionary function exception. See id. at 1345.

D. Shivers's Arguments as to Constitutional Claims

Shivers nonetheless argues that the discretionary function exception does not apply here because the prison officials’ decision to house Dodson in his cell violated the Eighth Amendment.2 Shivers contends that the BOP's discretionary inmate-placement decision is protected when the decision is merely tortious but not when that same conduct is both tortious and unconstitutional. Appellant's Supp. Br. at 22. Shivers reasons that prison employees "do not have discretion to violate the Constitution" and that therefore, as a matter of law, tortious conduct if...

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24 cases
  • Hernandez v. Causey
    • United States
    • U.S. District Court — Southern District of Mississippi
    • September 29, 2022
    ...claim.” Shivers v. United States, 14th 924, 928 (11th Cir. 2021). This argument is, in effect, a “constitutional-claims exclusion.” Shivers, 1 4th at 928. a constitutional violation, rather than a statutory, regulatory, or policy violation, precludes the application of the discretionary fun......
  • C.M. v. United States
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    • U.S. District Court — Western District of Texas
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    ...unconstitutional tortious actions. See Shivers v. United States, 1 F.4th 924, 932-33 (11th Cir. 2021), cert. denied, 142 S.Ct. 1361 (2022). Shivers begins its analysis with the statutory text and concludes that the plain statutory text leaves “no room for [an] extra-textual ‘constitutional-......
  • Schreiner v. Hodge
    • United States
    • Kansas Supreme Court
    • February 18, 2022
    ...when the exercise of discretion could be characterized as erroneous, mistaken, or even unconstitutional. See Shivers v. United States, 1 F.4th 924, 930 (11th Cir. 2021) (construing similar language under FTCA and concluding that "there is nothing in the statutory language that limits applic......
  • Hernandez v. Causey
    • United States
    • U.S. District Court — Southern District of Mississippi
    • September 29, 2022
    ...claim.” Shivers v. United States, 14th 924, 928 (11th Cir. 2021). This argument is, in effect, a “constitutional-claims exclusion.” Shivers, 1 4th at 928. a constitutional violation, rather than a statutory, regulatory, or policy violation, precludes the application of the discretionary fun......
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