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Eleventh Circuit of Appeals rejects federal prison inmate’s argument that “discretionary function” exception to Federal Tort Claim Act’s waiver of sovereign immunity should apply if state-law negligence claim also involves unconstitutional conduct

On June 9, 2021, in Shivers v. United States of America, et al., No. 17-12493, the Eleventh Circuit Court of Appeals ruled that a federal prison inmate’s state-law negligence claim against prison officials under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b)(1), was barred by the discretionary function exception, 28 U.S.C. § 2680(a) to the FTCA’s waiver of sovereign immunity. The discretionary function exception 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.” The allegedly negligent action by the prison officials in this case involved the placement in the plaintiff’s cell of a cellmate who the plaintiff claimed was known by prisons officials to be violently unstable, which resulted in the plaintiff being stabbed in his sleep by the cellmate. The Eleventh Circuit noted that in United States v. Gaubert, 499 U.S. 315, 322-323, (1991)the U.S. Supreme Court created a two-prong test to govern the application of the FTCA’s discretionary function exception. 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). 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. The Eleventh Circuit further noted it has in the past 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, citing Cohen v. United States, 151 F.3d 1338, 1340, 1342–45 (11th Cir. 1998). The Eleventh Circuit rejected the plaintiff’s argument that since, he alleged, the official’s conduct also amounted to an Eighth Amendment violation, making the conduct both tortious and unconstitutional, the discretionary function exception should not apply. The Eleventh Circuit stated that the statute was clear and “left no room for the extra-textual ‘constitutional-claims exclusion’”.