Case: 10-40804     Document: 00511777725         Page: 1     Date Filed: 03/05/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           March 5, 2012

                                       No. 10-40804                        Lyle W. Cayce
                                                                                Clerk

EDWARD DWAYNE ASHFORD,

                                                  Plaintiff–Appellant
v.

UNITED STATES OF AMERICA; RONALD THOMPSON, Regional Director;
JONATHAN DOBRE, Warden; R WHITE, Correctional Counselor,

                                                  Defendants–Appellees



                   Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 1:02-CV-598


Before KING, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Edward Ashford brought suit against the United States
and several Bureau of Prisons officials, contending that they negligently ignored
his requests to be separated from fellow inmate Kelvin Smith, while the two
were incarcerated together at the United States Penitentiary in Beaumont,
Texas. Instead, officials placed Ashford in the general population upon his




        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 10-40804

arrival at the prison, where he was attacked and severely injured by two inmates
operating upon Smith’s instructions.
      On appeal, we hold that Ashford’s cause of action against the government
under the Federal Tort Claims Act should be dismissed for lack of subject matter
jurisdiction, as it is barred by the discretionary function exception to the
government’s waiver of sovereign immunity. Because we conclude that the lower
court was without subject matter jurisdiction, we affirm the magistrate judge’s
dismissal of the action, but vacate the final order of dismissal and remand to the
district court for the entry of a judgment of dismissal of all claims without
prejudice.
             I. FACTUAL AND PROCEDURAL BACKGROUND
      As punishment for an August 2001 disciplinary infraction committed at
a medium security federal correctional complex in Beaumont, Texas, Plaintiff-
Appellant Edward Ashford (“Ashford”) was transferred to the United States
Penitentiary in Beaumont (“USP-Beaumont”), a high security institution.
Ashford was concerned that this move would place him in the same facility as
certain prisoners from the Washington, D.C. area. Although Ashford had been
involved in incidents with several prisoners from that area (due to his prior
cooperation with law enforcement and his father’s service as a corrections officer
in the Washington, D.C. jail), he was particularly concerned about an inmate
named Kelvin Smith, who had attacked him in 1985 when the two had
previously been incarcerated together. Ashford contends that Smith’s attack had
prompted corrections officers in Washington, D.C. to issue separation orders,
forbidding the two inmates from being confined in the same prison population.
Ashford’s troubles with Smith followed him throughout the federal system, as
Smith attempted to orchestrate attacks while Ashford was incarcerated at
facilities in Terre Haute, Indiana and Leavenworth, Kansas.



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      Ashford contends that, prior to his transfer, he explained his concerns to
the warden of the medium security facility in Beaumont, Jonathon Dobre. The
warden advised him to contact several different Bureau of Prisons (“BOP”)
officials, including Ronald Thompson, Regional Director for the South Central
Regional Office for the BOP. Ashford wrote these officials to explain that he
should not be housed with prisoners from Washington, D.C., including Smith.
Ashford claims that the warden assured him that his safety concerns would be
investigated before his transfer.
      Shortly thereafter, and before his concerns were investigated, Ashford was
transferred to USP-Beaumont. When Ashford arrived at the prison, he was
interviewed by Lieutenant Russell Haas. Ashford claims that he provided Haas
with details of his history with Smith, and asked whether Smith was housed at
the facility. According to Ashford, Haas assured him that Smith was not
incarcerated at USP-Beaumont. This, however, was not the case, as Smith was
in fact incarcerated there. Haas, however, claims that Ashford never mentioned
Smith during the intake interview. Ashford also completed an Intake Screening
Form upon his arrival, which asked, inter alia, “[d]o you know of any reason that
you should not be placed in general population?” He responded, “No.”
      After the intake interview, Ashford was placed in the general population
at USP-Beaumont. On November 16, 2001, just two days after his arrival,
Ashford was told by certain inmates to “check in,” meaning that he should enter
protective custody due to an impending attack. Approximately six hours later,
an inmate approached Ashford and purportedly said: “I ain’t got no beef with you
personally, right; but [Smith] sent us.” Ashford was then viciously attacked and
stabbed approximately 13 times. He sustained wounds to his back, head, inner
left ear canal, and upper torso. His left lung was punctured. The attack has left
Ashford with both hearing and vision problems.



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      Ashford subsequently brought suit against the United States and several
prison officials under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346,
and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,

(1971).1 His FTCA claim alleged that the government negligently
placed him in the general prison population with Smith and other prisoners from
Washington, D.C. The parties consented to have a magistrate judge hear and
decide the FTCA claim pursuant to 28 U.S.C. § 636(c), and the magistrate judge
held a Flowers evidentiary hearing.2 After the hearing, the magistrate judge
declined to make credibility determinations, and instead granted the
government’s summary judgment motion based upon the discretionary function
exception to the FTCA, 28 U.S.C. § 2680(a).
      Ashford appealed the magistrate judge’s judgment, and a panel of this
court reversed, holding that a genuine dispute of material fact existed as to
whether Ashford raised his safety concerns to officials at USP-Beaumont,
thereby triggering a prison policy that required officials to put Ashford in
solitary confinement until an investigation could be conducted. Ashford v. United
States, 

, 505 (5th Cir. 2007). The panel reasoned that this policy
“constrained the prison officials’ discretion such that if the factual predicate to
the policy was met, there was no room for choice in making the decision whether
to place Ashford in solitary confinement,” and thus the discretionary function
exception to the FTCA would not apply. 

then remanded the case
to the magistrate judge to determine whether in fact this mandatory prison
policy was triggered in light of the facts of the case.



      1
        Ashford’s Bivens claims against the individual defendants were dismissed, and
Ashford does not appeal this decision. As such, only Ashford’s FTCA claim against the
government remains.
      2
         See Flowers v. Phelps, 

(5th Cir.), vacated and superceded in part on
denial of reh’g, 

(5th Cir. 1992).

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      Upon remand, the magistrate judge entered findings of fact and
conclusions of law based upon the same Flowers hearing that was held prior to
the grant of summary judgment. Instead of addressing the FTCA discretionary
function exception, however, the magistrate judge proceeded to the merits and
concluded that the government was not negligent. Ashford now appeals again.
                         II. STANDARD OF REVIEW
      A Flowers hearing “‘amounts to a bench trial replete with credibility
determinations and findings of fact.’” 

(quoting McAfee
v. Martin, 

, 437 (5th Cir. 1995)). As with any bench trial, “we
review . . . findings of fact for clear error; conclusions of law, de novo.” Baldwin
v. Stalder, 

, 839 (5th Cir. 1998). “A factual finding is not clearly
erroneous as long as it is plausible in the light of the record read as a whole.”
United States v. Cluck, 

, 180 (5th Cir. 1998). A factual finding is
clearly erroneous where, “‘although there is evidence to support it, the reviewing
court on the entire record is left with the definite and firm conviction that a
mistake has been committed.’” Anderson v. City of Bessemer City, N.C., 

, 573 (1985) (quoting United States v. United States Gypsum Co., 

, 395 (1948)).
                               III. DISCUSSION
      The FTCA is a limited waiver of the United States’ sovereign immunity
from suit for claims regarding “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.” 28
U.S.C. § 1346(b)(1). We strictly construe such waivers, resolving all ambiguities
in favor of the sovereign. See Lane v. Pena, 

, 192 (1996). The FTCA’s
discretionary function exception provides that sovereign immunity is not waived
for any 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

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employee of the Government, whether or not the discretion involved be abused.”
28 U.S.C. § 2680(a). The discretionary function exception is potentially
applicable in this case because BOP officials generally exercise significant
judgment in fulfilling their statutory obligation to provide for the safekeeping,
care, and subsistence of all federal prisoners. See 18 U.S.C. § 4042(a) (setting out
duties of the BOP); Spotts v. United States, 

, 567 (5th Cir. 2010)
(“[T]he Federal Bureau of Prisons [must] provide for the safekeeping, care, and
subsistence of all federal prisoners, but [Section 4042(a)] does not indicate the
manner in which the duty must be fulfilled.”).
      We must engage in a two-step analysis to determine whether the FTCA
discretionary function exception applies. United States v. Gaubert, 

,
322-23 (1991). We first ask whether the act “involv[es] an element of judgment
or choice.” 

(internal quotation marks and citation omitted). If so, we
then ask “whether that judgment is of the kind that the discretionary function
exception was designed to shield.” 

-23 (internal quotation marks and
citation omitted). “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.’” 

(quoting Berkovitz v. United States, 

, 536 (1988)). If the discretionary function exception applies, this court lacks
subject matter jurisdiction. See Castro v. United States, 

, 268 (5th
Cir. 2010) (en banc).
      As noted above, when this case was previously on appeal, the panel found
that a genuine issue of fact existed regarding whether the discretionary function
exception applied. 

. Upon remand, however, the
magistrate judge failed to address this issue and instead proceeded to the
question of the government’s negligence. Ashford now appeals on the basis that
the magistrate judge’s factual findings are clearly erroneous. The government

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opposes the appeal on this basis. Neither party, however, addresses the
immunity issue on appeal. Nevertheless, it is well settled that “every federal
appellate court has a special obligation to ‘satisfy itself not only of its own
jurisdiction, but also that of the lower courts in a cause under review,’ even
though the parties are prepared to concede it.” Bender v. Williamsport Area Sch.
Dist., 

, 541 (1986) (quoting Mitchell v. Maurer, 

, 244
(1934)). The Supreme Court has disapproved of the practice of exercising
“hypothetical jurisdiction,” and has explained that federal courts must resolve
questions of jurisdiction before proceeding to the merits. Steel Co. v. Citizens for
a Better Env’t, 

, 101 (1998); see also USPPS, Ltd. v. Avery Dennison
Corp., 

, 283 & n.6 (5th Cir. 2011); Jasper v. FEMA, 414 F. App’x
649, 651 (5th Cir. 2011) (“Because a federal court must determine whether
jurisdiction is proper prior to addressing the merits of a case, a district court
must first determine if [an FTCA exception applies].”). We must therefore
address the applicability of the discretionary function exception to the FTCA,
and cannot simply avoid this analysis in favor of a resolution on the merits.3
A.      Discretionary Function Exception - Step One
        The first Ashford panel determined that the government had failed to
demonstrate that the initial step of the discretionary function analysis had been
satisfied as a matter of law. It explained:


       3
         Although the magistrate judge entered his factual findings based upon the same
Flowers hearing that he held prior to granting summary judgment, a Flowers hearing
“‘amounts to a bench trial replete with credibility determinations and findings of fact.’”

(quoting McAfee v. Martin, 

, 437 (5th Cir. 1995)). The
magistrate judge was thus not required to conduct a new hearing after the reversal of the
summary judgment order. Ashford contends that the magistrate judge should have at least
provided notice of his intent to rule based upon the Flowers hearing, and that such notice
would have afforded him the opportunity to present other evidence. Although perhaps the
magistrate judge could have afforded the parties notice before entry of the findings of fact and
conclusions of law in this case, we cannot say that this was required. If Ashford believed that
the magistrate judge’s findings were incomplete in light of certain evidence, he could have
sought relief under Federal Rules of Civil Procedure 59 and 60, but he did not do so.

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      Two Government witnesses, Doty and Hass [sic], testified that if an
      inmate raised a safety concern like the one Ashford claims he raised
      at the intake interview, prison policy required him to be put into
      solitary confinement until an investigation could be conducted. That
      policy constrained the prison officials’ discretion such that if the
      factual predicate to the policy was met, there was no room for choice
      in making the decision whether to place Ashford in solitary
      confinement. There is a dispute, however, about whether the factual
      predicate to the policy was met: Ashford claims he raised safety
      concerns, thereby triggering the policy. Government witnesses
      testified to the contrary. That fact dispute makes summary
      judgment on the discretionary-function exception improper.

(emphasis added). Although the panel did not refer to
a formal BOP policy in its opinion, we understand that the policy at issue was
described during the Flowers hearing. During cross-examination, Patricia Doty
(the case management coordinator) had agreed with the government that, if
Ashford had “identified a security threat from an inmate, he would have been
placed in some sort of administrative segregation until that could be
investigated.” Haas likewise confirmed that if Ashford had indicated in his
initial interview that Smith posed a security threat to him, Ashford would have
been secured in protective custody while the allegations were investigated.
      Although the magistrate judge did not specifically address the
discretionary function exception, upon remand he did resolve the factual dispute
raised by the Ashford panel. Based largely upon the testimony of Doty and Haas,
the magistrate judge concluded that Ashford failed to raise his security concerns
at the first intake screening upon arrival at USP-Beaumont, that he declined to
note any security concerns on his BOP Intake Screening Form, and that he
neglected to make his safety concerns known to Haas, who conducted a second
screening interview after Ashford’s arrival. Finally, Ashford conceded during the
Flowers hearing that, after his arrival at USP-Beaumont and his placement in
the general population, he did not report any security concerns to prison officials.


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      The magistrate judge’s conclusion that Ashford never raised his security
concerns to prison officials at USP-Beaumont is certainly plausible in light of the
record as a whole, specifically the testimony of Doty and Haas, which the
magistrate judge found credible. We find no clear error in this factual
determination. See 

(“[W]hen a trial judge’s finding is
based on his decision to credit the testimony of one of two or more witnesses,
each of whom has told a coherent and facially plausible story that is not
contradicted by extrinsic evidence, that finding, if not internally inconsistent,
can virtually never be clear error.”). Without any safety concerns, prison officials
were free to place Ashford in the general population.
      While the magistrate judge did find that, before his transfer to USP-
Beaumont, Ashford wrote a letter to regional director Ronald Thompson
expressing his safety concerns, there is no indication in the record that the
appropriate officials at USP-Beaumont received and considered this letter prior
to the incident. In fact, the only responsive letter from a BOP official, the
Correctional Services Administrator, is dated November 23, 2001, after Ashford’s
November 16, 2001 assault.
      On appeal, Ashford argues that the magistrate judge’s factual findings are
clearly erroneous because the testimony of Doty and Haas is refuted by two
separation orders in his central file, which Ashford now produces for the first
time. One such order, bearing the letterhead of the District of Columbia
Department of Corrections Detention Facility, and dated October 22, 1985,
states that Ashford was attacked while in transit from court to the jail by
members of the “8th & H Street, N.E. Crew,” including Kelvin Smith. It states
that “[t]hese residents are to be kept separated and apart from each other at all
times until further notice and this includes all movement outside the facility.”
A second letter, dated October 23, 1985, repeats this separation order.



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      Ashford contends that these separation orders trigger the mandatory
requirements of 28 C.F.R. § 524.72(f), and thus render the discretionary function
exception inapplicable. Section 524.72 relates to Central Inmate Monitoring
(“CIM”), and provides assignment categories for certain classifications of
inmates. Subsection (f) relates to “separation” inmates, a term that refers to
“[i]nmates who may not be confined in the same institution (unless the
institution has the ability to prevent any physical contact between the
separatees) with other specified individuals who are presently housed in federal
custody or who may come into federal custody in the future.” 

this
classification decision, BOP officials may consider “testimony provided by or
about an individual (in open court, to a grand jury, etc.), and whether the inmate
has exhibited aggressive or intimidating behavior towards other specific
individuals, either in the community or within the institution.” 

“also includes those inmates who have provided authorities with
information concerning the unauthorized or illegal activities of others,” as well
as “inmates from whom there is no identifiable threat, but who are to be
separated from others at the request of the Federal Judiciary or U.S. Attorneys.”

v. United States, 

(7th Cir. 2008), the Seventh Circuit
concluded that Section 524.72(f) requires BOP officials to “‘prevent any physical
contact’ between specified separated individuals,” and if the BOP “failed to
enforce its own classification decision, [the plaintiff] would be able to escape the
force of the” FTCA discretionary function exception. 

The court
recognized, however, that the “existence (or absence) of [a formal separation]
order is of central importance.” 

not consider whether Section 524.72(f) limits prison officials’
discretion for purposes of the FTCA discretionary function exception, as the
separation orders at issue here do not appear in the district court record, and
were not presented during the Flowers hearing. Ashford does not explain how

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or when he obtained these orders (other than to state that he obtained them
through a Freedom of Information Act request).4 He contends that the October
22, 1985 separation order is in the district court record, but concedes that the
October 23, 1985 order is not. Our review of the record reveals neither
separation order. It is well established that we “may not consider new evidence
furnished for the first time on appeal and may not consider facts which were not
before the district court at the time of the challenged ruling.” Theroit v. Parish
of Jefferson, 

, 491 n.26 (5th Cir. 1999). We have applied this same
rule in pro se actions brought by prisoners. See Treece v. Andrews, 188 F. App’x
230, 230-31 (5th Cir. 2006). We therefore cannot, and do not, consider the
separation orders now appended to Ashford’s brief on appeal.
       On the record before us, we find no clear error in the lower court’s findings
of fact. Because Ashford failed to raise his security concerns during the intake
process, and the prison’s diligent search failed to reveal the purported separation
orders, the prison had no mandatory obligation to separate Ashford from Smith.
Instead, Ashford’s classification and placement upon arrival were in the prison’s
discretion. We conclude that placement of Ashford in the general population at
USP-Beaumont involved an element of “judgment or choice,” 

, and thus satisfies the first step of the discretionary function analysis.




       4
          We note that these two separation orders were addressed in another lawsuit that
Ashford filed against the District of Columbia, Ashford v. District of Columbia, No. 02-1955
(D.D.C.), which sought to hold D.C. officials liable for failing to relay the separation orders to
officials at USP-Beaumont. In that case, D.C. corrections officials stated that Ashford’s file
contained no separation orders with respect to Smith, and contended that the separation
orders Ashford produced had been fabricated. Ashford v. District of Columbia, No. 02-1955,

, at *2 (D.D.C. Sept. 21, 2006). The district court ultimately did not resolve
this issue, finding instead that the “authenticity of these memoranda does not affect the legal
analysis,” since it found no evidence of deliberate indifference by the municipality to support
a claim under 42 U.S.C. § 1983. 

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B.      Discretionary Function Exception - Step Two
        The second step in our discretionary function analysis requires us to ask
whether the judgment at issue “is of the kind that the discretionary function
exception was designed to shield.” 

-23 (internal quotation marks and
citation omitted). “Because the purpose of the exception is 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, when
properly construed, the exception protects only governmental actions and
decisions based on considerations of public policy.” 

(internal quotation
marks and citations omitted).
        Maintaining order and security in prison is the type of policy-based
decision that the discretionary function exception shields. In Patel v. United
States, 398 F. App’x 22 (5th Cir. 2010), we addressed whether the discretionary
function exception applied in a suit brought by an inmate with certain medical
conditions who challenged the government’s decisions to transfer him to
numerous facilities without providing proper medical care. 

Finding
that the discretionary function exception applied, we reasoned that “decisions
regarding the transfers and classifications of prisoners generally fall within the
discretionary function exception,” and that the transfers at issue were the kind
of decision that the “‘discretionary function exception was designed to shield.’”

(quoting 

-23). Other circuits have agreed. See
Cohen v. United States, 

, 1344 (11th Cir. 1998) (“Deciding how to
classify prisoners and choosing the institution in which to place them are part
and parcel of the inherently policy-laden endeavor of maintaining order and
preserving security within our nation’s prisons.”); Dykstra v. U.S. Bureau of
Prisons, 

, 796 (8th Cir. 1998) (“Prison officials supervise inmates
based upon security levels, available resources, classification of inmates, and
other factors. These factors upon which prison officials base such decisions are

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                                   No. 10-40804

inherently grounded in social, political, and economic policy. We have no
difficulty in concluding that the discretionary function exception applies to the
correctional officer’s decision not to place Dykstra in protective custody or to take
other protective action.”); Calderon v. United States, 

, 951 (7th Cir.
1997) (“It is clear that balancing the need to provide inmate security with the
rights of the inmates to circulate and socialize within the prison involves
considerations based upon public policy.”). We see no reason to depart from these
well-reasoned decisions. The classification decision at issue here “is of the kind
that the discretionary function exception was designed to shield.” 

-23.
      Thus, in light of the magistrate judge’s factfinding based upon the Flowers
hearing, we conclude that the discretionary function exception to the FTCA is
applicable, and the court therefore lacks subject matter jurisdiction over this
action. See 

. Although the lower court erred by failing to
resolve this jurisdictional issue before proceeding to the merits, we ultimately
affirm its dismissal of this case on the jurisdictional basis discussed herein. We
therefore do not consider the merits of Ashford’s negligence claim.
      Because we conclude that the magistrate judge should have dismissed
Ashford’s claim under the FTCA for lack of subject matter jurisdiction, the
dismissal should have been without prejudice. See Davis v. United States, 

, 56-58 (5th Cir. 1991) (holding that FTCA claim was properly dismissed
for lack of subject matter jurisdiction, but that district court was “incorrect to
dismiss [the] case with prejudice,” and therefore remanding for entry of order of
dismissal without prejudice); see also Hix v. U.S. Army Corps of Eng’rs, 155 F.
App’x 121, 128 (5th Cir. 2005) (“[B]ecause it lacked subject-matter jurisdiction
over Appellants’ [FTCA] claims, the district court erred in dismissing the claims
with prejudice, which also operates as a judgment on the merits.”). As such, we
affirm the magistrate judge’s dismissal of the action, but vacate the final order

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                                   No. 10-40804

of dismissal and remand to the district court for the entry of a judgment of
dismissal of Ashford’s FTCA claim without prejudice.
                              IV. CONCLUSION
      For the foregoing reasons, we AFFIRM the magistrate judge’s dismissal
of the action, but VACATE the final order of dismissal with prejudice and
REMAND to the district court with instructions to enter a judgment of dismissal
of all claims without prejudice.




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